Revision of Miscellaneous Hazardous Materials Regulations; Regulatory Review

SUMMARY: RSPA is amending the Hazardous Materials Regulations (HMR)

based on its review of the HMR and on written and oral comments

received from the public concerning regulatory reform. The intended

effect of this rulemaking is to reduce unnecessary regulatory burdens

on industry and make the regulations shorter and easier to use without

compromising public safety. In particular, RSPA is reducing the

requirements pertaining to training frequency, incident reporting, and

emergency response telephone numbers. This action is in response to

President Clinton's March 4, 1995 memorandum to heads of departments

and agencies calling for a review of all agency regulations.

DATES: Effective date. October 1, 1996.

Compliance date. Immediate compliance is authorized.

Incorporation by reference. The incorporation by reference of a

publication listed in this amendment is approved by the Director of the

Federal Register as of October 1, 1996.

FOR FURTHER INFORMATION CONTACT: John A. Gale, (202) 366-8553; Office

of Hazardous Materials Standards, or Karin V. Christian, (202) 366-

4400, Office of the Chief Counsel, RSPA, Department of Transportation,

Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On March 4, 1995, President Clinton issued a memorandum to heads of

departments and agencies calling for a review of all agency regulations

and elimination or revision of those regulations that are outdated or

in need of reform. In response to the President's directive, RSPA

performed an extensive review of the Hazardous Materials Regulations

(HMR; 49 CFR Parts 171-180) and associated procedural rules (49 CFR

Parts 106 and 107).

The President also directed that front line regulators ``* * * get

out of Washington and create grassroots partnerships'' with people

affected by agency regulations. On April 4, 1995, RSPA published in the

Federal Register (60 FR 17049) a notice announcing seven public

meetings and requesting comments on its hazardous materials safety

program. RSPA requested comments on ways to improve the HMR and the

kind and quality of services its customers want. RSPA received over 50

written comments in response to the notice. On July 28, 1995, RSPA

published a second notice (60 FR 38888) announcing five more public

meetings that were held between September 1995 and January 1996.

On February 20, 1996, RSPA published a Notice of Proposed

Rulemaking (NPRM) (61 FR 6478) under Docket HM-222B that proposed to

amend various sections of the HMR based on agency initiative and on

written and oral comments received from the public on regulatory

reform. In particular, RSPA proposed to reduce the requirements

pertaining to training frequency, incident reporting, and emergency

response telephone numbers.

II. Summary of Amendments

RSPA received approximately 90 comments to the NPRM. Most of the

comments supported the proposals and requested that RSPA adopt them as

soon as possible. The commenters, including many small businesses,

stated that they would benefit directly from the adoption of the

proposal in Docket HM-222B without any reduction of safety. Several

commenters commended RSPA's commitment to effecting meaningful

regulatory reform. Some commenters, however, did raise concerns about

the impact on safety if these proposals were adopted. Commenters also

raised issues that were beyond the scope of the proposed rule; however,

these issues may be considered in future rulemakings.

RSPA believes that the amendments adopted in this final rule strike

a balance between safety and costs imposed on the regulated community.

RSPA does not believe that the result of the amendments in this final

rule will be a decrease in safety to the public or the environment.

Part 171

Section 171.16. In the NPRM, RSPA proposed, except for materials

transported by aircraft, to except limited quantities of Packing Group

II and III materials from the incident reporting requirements in

Sec. 171.16. RSPA stated in the NPRM that continued reporting of

certain incidents involving limited quantities would be of minimal

value when weighed against the burden on the carriers required to

prepare incident reports.

RSPA received a number of comments on the proposal to revise the

incident reporting requirements. Most of the commenters supported the

proposal and cited the cost savings to the regulated community without

any decrease in safety. Some commenters did not agree with the proposal

and stated that large numbers of limited quantity packages could cause

a serious incident to occur. Others requested that the proposal be

modified to except only that material which can be controlled in the

immediate release area. RSPA believes that the continued reporting of

incidents involving these materials is of minimal value when weighed

against the burden placed on carriers who are required to prepare and

submit incident reports. In addition, if a large number of limited

quantity packages causes a serious incident to occur that meets a

criterion in Sec. 171.15, a written report is still required.

Therefore, RSPA is adopting this amendment as proposed.

Part 172

Section 172.101. As proposed, RSPA is amending the Sec. 172.101

Table for the entries ``Cartridges for weapons, blank, or Cartridges,

small arms, blank, UN 0014''; ``Cartridges for weapons, inert

projectile, or Cartridges, small arms, UN0012''; ``Cartridges, power

device, UN0323''; and ``Cartridges, small arms'', in Column (7), by

removing the reference ``112''. Also for these entries, in Column (8A)

of the Sec. 172.101 Table, the word ``None'' or ``230'', as

appropriate, is removed and replaced with ``63''. The provisions to

reclass an explosive as an ORM-D material, currently contained in

Special Provision 112 and in Sec. 173.230(b), are relocated to

Sec. 173.63(b) to minimize confusion.

RSPA is also amending, as proposed, Column (7) of the Sec. 172.101

Table for the entry ``Ethanol or Ethyl alcohol or Ethanol solutions or

Ethyl alcohol solutions'' by adding Special Provision ``24'' to allow

ethanol the same packing group criteria as alcoholic beverages.

In this final rule, RSPA is also making some minor changes to the

headings of some of the columns of the Hazardous Materials Table. The

headings for columns (8), (8B) and (8C) are revised to read ``Packaging

(Sec. 173.***)'', ``Nonbulk'', and ``Bulk'', respectively. The headings

for column (9A), (10), (10A) and (10B) are revised to read ``Passenger

aircraft/rail'', ``Vessel; Stowage'', ``Location'', and ``Other'',

respectively. These changes will make

[[Page 27167]]

the headings more descriptive of the referenced requirements therein

and will also decrease the size of the Hazardous Materials Table.

Section 172.102. As proposed, RSPA is removing Special Provision

112.

Section 172.201. As proposed, RSPA is amending Sec. 172.201(d) by

adding a cross-reference to Sec. 172.604(c).

Sections 171.11, 172.203 and 172.324. Currently, all constituents

in a mixture or solution that meet the definition of ``hazardous

substance'' in Sec. 171.8 must be identified on shipping papers and

package markings. In the NPRM, RSPA proposed to require that at least

two hazardous substances be identified on shipping papers and package

markings for hazardous materials containing two or more hazardous

substances. This proposal is consistent with the technical name

requirements in Sec. 172.203(k).

RSPA received several comments in support of this proposed change.

Commenters stated these changes would facilitate overall compliance.

Some commenters who supported the proposal requested that RSPA provide

guidance on which hazardous substances should be identified. A

commenter opposed to the change stated that the Environmental

Protection Agency (EPA) requires that persons who have custody of

hazardous substances report the release of every constituent hazardous

substance for these materials.

RSPA does not believe that requiring only two constituent hazardous

substances to be identified on shipping papers and package markings

will cause persons to be in violation of the EPA's reporting

requirements in 40 CFR 302.6. However, in response to the comments,

RSPA is not adopting the rule as proposed but is modifying the proposal

to require identification of those hazardous substances with the lowest

reportable quantities (RQ). For release of mixtures or solutions,

including hazardous wastes, where the amount of the mixture or solution

is unknown, a person is required under 40 CFR 302.6, to report to the

National Response Center (NRC) when the amount of the mixture or

solution equals or exceeds the lowest RQ. Therefore, if the two

materials with the lowest RQs are identified, a carrier will have

sufficient information to satisfy the reporting requirements of the EPA

under 40 CFR 302.6. In addition, RSPA is revising Sec. 171.11(d)(1) to

be consistent with the changes in Secs. 172.203 and 172.324.

RSPA also proposed to remove paragraph (e)(3) to eliminate the

requirement to include the statement ``RESIDUE: Last Contained * * *''

on shipping papers for a shipping description of packages containing

only the residue of a hazardous substance. Many commenters

misunderstood the proposal as also removing the requirement to enter

the statement ``RESIDUE: Last Contained * * *'' before the shipping

description for a tank car which contains the residue of a hazardous

substance. This is not the case. The shipping description for a tank

car that contains the residue of a hazardous material, including a

hazardous substance, is required by Sec. 172.203(e)(2) to be prefaced

with the statement ``RESIDUE: Last Contained * * *''. The removal of

Sec. 172.203(e)(3) eliminates the requirement to preface the shipping

description of a residue of a hazardous substance in a package other

than a tank car (e.g., drum or cargo tank) with the statement

``RESIDUE: Last Contained * * *.''

Section 172.316. Based on a comment received under Docket HM-222,

RSPA proposed to modify Sec. 172.316 to allow the CLASS 9 label in

place of the ORM-D marking on packages of consumer commodities. RSPA

received only two comments on this proposal, both opposing it. One of

the comments was submitted by the commenter who had suggested the

revision. Since the commenter originally requesting the revision

believes the change would cause unnecessary confusion and would require

the retraining of numerous employees with minimal benefit, RSPA is not

adopting the proposal to allow the CLASS 9 label in place of the ORM-D

marking.

Section 172.402. As proposed, RSPA is revising Sec. 172.402 by

adding an exception from the requirement for subsidiary hazard labeling

for certain packages of Class 7 (radioactive) materials that also meet

the definition of another hazard class, except Class 9. These Class 7

materials conform to all requirements in Sec. 173.4, except for their

specific activity level, which exceeds permissible limits for a limited

quantity radioactive material.

Section 172.500. As proposed, RSPA is amending this section by

adding a new paragraph (b)(4) to clarify that small quantities of

hazardous materials prepared in accordance with Sec. 173.13 are

excepted from the placarding requirements of Subpart F of Part 172.

Section 172.600. As proposed, RSPA is excepting all ORM-D material

from the emergency response information and telephone number

requirements of Subpart G of Part 172, even when offered for

transportation or transported by aircraft.

Section 172.604. Based on its own initiative and petitions for

rulemaking, and because of the belief that the costs to implement these

requirements outweigh the benefits, RSPA proposed to except the

following materials from emergency response telephone number

requirements: (1) Liquid petroleum distillate fuels (e.g., gasoline,

propane, and diesel fuel); (2) limited quantities of hazardous

materials; and (3) materials described under the shipping names

``Engines, internal combustion''; ``Battery powered equipment'';

``Battery powered vehicle''; ``Wheelchair, electric''; ``Carbon

dioxide, solid''; ``Dry ice''; ``Fish meal, stabilized''; ``Fish scrap,

stabilized''; ``Castor bean''; ``Castor meal''; ``Castor flake'';

``Castor pomace''; and ``Refrigerating machine''.

RSPA received numerous comments opposing the proposal to except

liquid petroleum distillate fuels from the 24-hour emergency response

telephone number requirement. Commenters opposing the proposed

exception included: emergency responders, petroleum transporters, trade

associations, State and local agencies, environmental contractors and

consultants, and a railroad association. These commenters stated that

the benefits of retaining the 24-hour telephone number for liquid

petroleum distillate fuels outweigh the costs. Commenters stated that

the 24-hour telephone number enables emergency responders to

immediately contact the parties involved to arrange for clean-up of a

spill. A commenter stated that information on the composition of a

particular gasoline may be available only from the shipper through the

emergency response telephone number. Other commenters stated that many

gasolines contain ethyl alcohol, methyl alcohol or other oxygenating

components that traditional firefighting foams are considerably less

effective on than are alcohol foams. Commenters also stated that many

small fire departments have never handled a major spill involving large

volumes of gasoline or propane. The commenters stated that responders

need every resource available to them in the event of a hazardous

materials spill.

RSPA received several comments from businesses and trade

organizations in favor of the proposal to except liquid petroleum

distillate fuels from the 24-hour emergency response telephone number

requirement. The commenters agreed with RSPA's statement in the NPRM

that emergency responders routinely handle incidents involving liquid

petroleum distillate fuels and that it is questionable whether the 24-

hour emergency response telephone number could provide emergency

responders with any additional information of value beyond that which

is required to be carried in the vehicle.

[[Page 27168]]

RSPA received few comments on the proposal to except limited

quantities, and other miscellaneous materials, from the 24-hour

telephone number requirement. Those in favor of the proposal cited the

high costs associated with providing an emergency response telephone

number against the minimal hazards associated with such small

quantities of material. One commenter stated that the exception for the

emergency response telephone number for hazardous materials in limited

quantities will provide the regulated community with significant relief

while not sacrificing safety. Those opposing the proposal stated that

since limited quantities of materials are already excepted from other

hazard communication requirements, e.g., labeling, that emergency

responders are already hampered when responding to an incident

involving these materials and that excepting them from the emergency

response telephone number would only create more problems for

responders.

RSPA believes that providing emergency response information to

emergency responders is an important aspect of its hazardous materials

safety program. Emergency response information enhances communication

pertaining to the safe handling and identification of hazardous

materials involved in transportation incidents. The intent of the NPRM

was to relax the emergency response information requirements for those

materials where the costs to maintain the information were believed to

outweigh the benefits derived from providing the information. Based on

the comments received opposing the proposal to except liquid petroleum

distillate fuels from the 24-hour emergency response telephone number

requirement, RSPA has decided not to adopt the proposed exception for

liquid petroleum distillate fuels. Commenters stated that the costs to

maintain the 24-hour emergency response telephone number for liquid

petroleum distillate fuels do not outweigh the benefits and, therefore,

the requirement should be retained. As expressed by one commenter, a

propane distributor who would have directly benefited from the

exception, the cost to maintain a 24-hour emergency telephone number is

minimal and the cost poses no real financial burden, especially

considering the safety of emergency response personnel, the public, and

the environment.

With regard to the proposed exception for limited quantities,

consumer commodities transported by aircraft, and other miscellaneous

materials, RSPA continues to believe that the costs to maintain a 24-

hour emergency response telephone number outweigh the benefits of

providing the information for millions of small shipments. However,

RSPA believes that the impact on air transportation safety of excepting

``Mercury contained in manufactured articles'' from the 24-hour

emergency response telephone number requirement requires further study.

Therefore, except for ``Mercury contained in manufactured articles'',

RSPA is adopting an exception from the emergency response telephone

number requirements of Sec. 172.604 for limited quantities, consumer

commodities transported by aircraft, and other miscellaneous materials.

Based on its own initiative, RSPA proposed to clarify that more

than one emergency response telephone number with different hours of

operation may be used to satisfy the requirements of Sec. 172.604. RSPA

received numerous comments both in support of and against the proposed

clarification. RSPA believes that the issues raised by the commenters

need further review and will finalize its decision on this proposal in

a future rulemaking. Therefore, in the interim, multiple emergency

response phone numbers are authorized on a shipping paper if the

requirements of Sec. 172.604 are met.

Sections 172.702 and 172.704. RSPA stated in the notice of public

meetings under Docket HM-222 (60 FR 17049) that it would consider

extending the requirement for recurrent training from every two years

to every three or four years. RSPA received numerous written and oral

comments in support of decreasing the frequency specified to retrain

hazmat employees in accordance with Subpart H of Part 172. In the NPRM,

RSPA proposed to decrease the frequency of recurrent hazmat training

from two years to three years. RSPA stated that this frequency is

consistent with other training programs, such as the training required

under the Transportation of Dangerous Goods Regulations issued by the

government of Canada.

RSPA received numerous comments in support of this proposal and

many comments in opposition. Commenters supporting the proposal

included: shippers, carriers, safety and trade associations, oil and

petrochemical companies and associations, a railroad association. Some

commenters requested that RSPA extend the training to every four years.

The commenters stated that the amendment would significantly reduce

costs to the regulated community without any decrease in safety.

Commenters who supported the proposal to extend the training frequency

requirements to every three years stated that the change would allow

hazmat employers to provide for more cost-effective training of hazmat

employees, since training times could be better coordinated to

accommodate employee work schedules and varying business cycles. Some

commenters who supported the proposal stated that extending the

training frequency is consistent with other regulatory requirements

(e.g., Canadian regulations). One commenter noted that, although

international regulations require training on a two-year cycle,

inclusion of the phrase ``at least'' enables persons involved in

international transportation to comply with both requirements without

any conflict or confusion. Commenters also stated that if RSPA adopts a

change to the training frequency requirements, then a corresponding

change to the recordkeeping requirements is also necessary.

Those commenters who opposed the proposed change in training

frequency included: trade and service associations, training and

consulting organizations, shippers and carriers, and emergency response

organizations. These commenters stated that the proposal to increase

the training frequency would have a detrimental impact on safety. Some

commenters also stated that the proposal will diminish the apparent

importance of the DOT program in the eyes of employees and supervisors.

RSPA believes that one of the most important regulatory

requirements in the HMR is its training requirement. Proper training

increases a hazmat employee's awareness of safety considerations

involved in the loading, unloading, handling, storing, and

transportation of hazardous materials. An effective training program

reduces hazardous materials incidents resulting from human error and

mitigates the effects of incidents when they occur. The importance of

RSPA's training requirements is not diminished by a decrease in the

frequency of training from two to three years. However, RSPA is not

adopting commenter suggestions to extend the training frequency to

every four years. The adoption of a three-year interval for training

frequency strikes a balance between an effective training program and

the costs that are imposed on the regulated community. Therefore, RSPA

is revising the training frequency for hazmat employees from every two

years to every three years. In addition, as requested by commenters,

RSPA is adjusting the recordkeeping requirements for training records

to specify that training records be retained for three years.

[[Page 27169]]

In the preamble to the NPRM, RSPA stated: ``Except as provided in

Sec. 172.704(c), hazmat employees must be trained whenever their hazmat

functions change or the requirements are revised, regardless of the

minimally required training frequency.'' A number of commenters were

concerned with this statement because they did not see any

corresponding proposed change to the HMR. Some commenters also

expressed concern with the statement that hazmat employees must be

retrained every time a change to the HMR is adopted because it could

require retraining several times a year.

Section 172.702 (Subpart H) states that any person who performs a

function subject to the HMR may not perform that function unless

trained in accordance with the requirements prescribed in the subpart.

In addition, a hazmat employer must insure that each hazmat employee is

thoroughly instructed in the requirements that apply to functions

performed by that employee. If a new regulation is adopted, or an

existing regulation is changed, that relates to a function performed by

a hazmat employee, that hazmat employee must be instructed in those new

or revised function specific requirements without regard to the timing

of the three year training cycle. It is not necessary to completely

retrain the employee sooner than the required three year cycle. The

only instruction required is that necessary to assure knowledge of the

new or revised regulatory requirement. For example, if a new

requirement is added to the shipping paper requirements, a hazmat

employee must be instructed regarding the new requirement prior to

performance of a function affected by the new or revised rule. It is

not necessary to test the hazmat employee, or retain records of the

instruction provided in the new or revised requirements until the next

scheduled retraining at or within the three year cycle. In order to

clarify the training requirements of the HMR, RSPA is revising

Sec. 172.702(b) to state that an employee must be instructed in the

requirements of the HMR that apply to each function performed by the

employee without a reference to the requirements of subpart H (e.g.,

the training, testing and recordkeeping requirements of Sec. 172.704).

This amendment makes it clear that RSPA does not intend that millions

of detailed records be created and retained and associated testing be

conducted each time a hazmat employee is instructed in regard to a

change in the regulations within the three year cycle. Consistent with

this amendment, RSPA is also revising Sec. 172.704(d) to clarify that

only records of the training required by Sec. 172.704, and not the

subpart, are required to be maintained. In addition, as proposed, RSPA

is adding a reference in Sec. 172.702(b) to the exception provided in

Sec. 172.704 for employees employed less than 90-days.

RSPA proposed to revise Sec. 172.704(c) to clarify its position

concerning the ``direct'' supervision of a hazmat employee who has not

received initial training. RSPA is adopting the amendment, as proposed

in the NPRM, to add the word ``direct'' preceding the word

``supervision'' in Sec. 172.704(c)(1). RSPA requires that the person

providing direct supervision must be able to instruct the employee on

how to properly perform the hazmat function, must observe performance

of the hazmat function, and must be able to take immediate corrective

actions in regard to any function not performed in conformance with the

HMR.

Part 173

Section 173.4. As proposed, RSPA is revising the HMR to permit

Division 4.2 and 4.3 materials and hazardous materials identified in

paragraph (a)(11) to be shipped under the small quantity provisions.

RSPA is also adding a new paragraph (c) to allow small quantities of

certain categories of hazardous materials not authorized under this

exception to be shipped in accordance with this section if specifically

approved by the Associate Administrator for Hazardous Materials Safety.

RSPA is also revising the marking requirements in paragraph (a)(10).

These changes to Sec. 173.4 are intended to ease burdens on industry

and facilitate international transportation of hazardous materials in

very small quantities. RSPA received several comments in support of

these amendments. One commenter requested that RSPA continue to

authorize the previously required marking. RSPA agrees and has modified

the amendment to authorize the previously required marking for an

additional five years.

Section 173.13. In the NPRM, RSPA proposed to add a new Sec. 173.13

that incorporates, for highway and rail transport only, the provisions

of DOT exemptions E-7891 and E-9168 into the HMR. These exemptions, and

others commonly referred to as the ``poison pack'' exemptions, allow

small quantities of hazardous materials in special packagings of high

integrity to be transported without their primary or subsidiary labels.

In addition, RSPA proposed to except these materials from the

placarding and segregation requirements of the HMR.

RSPA received several comments on this issue in support of adopting

these exemptions into the HMR, but the commenters also requested

further clarification. Two commenters noted that one of the inner

packagings required by the exemptions was not included in the proposed

new section. Commenters also requested that the section be broadened to

include air transport and materials poisonous by inhalation, as

presently authorized in the exemptions. Commenters also requested that

the term ``rigid can'' be clarified and that all affected exemptions be

identified.

Commenters who opposed adoption of this new section were concerned

about the loss of controls that are provided under an exemption. In

addition, commenters were concerned that there would be no clear

identification on the package that the package is being offered for

transportation or transported under the provisions of Sec. 173.13.

RSPA believes that the safety record of the ``poison pack''

exemption packagings over the years has shown that they are acceptable

for inclusion in the HMR. However, several points of clarification and

revision to the proposal are necessary. First, RSPA is extending the

application of Sec. 173.13 to permit transportation by cargo aircraft.

RSPA will continue to monitor the transportation of these packages with

materials poisonous by inhalation and by passenger carrying aircraft

under the terms of the exemption, and therefore, is not extending the

application of the new section to cover these operations. These

operations can continue under the applicable exemptions. RSPA is also

requiring another level of inner packaging to be consistent with the

exemptions. In order to clarify the term ``rigid can'', RSPA is

changing the term to ``metal can.''

RSPA agrees with commenters who were concerned that packages

prepared in accordance with Sec. 173.13 would not be readily

identifiable in transportation. Therefore, RSPA is adopting in this

final rule a marking requirement similar to that required for small

quantities prepared in accordance with Sec. 173.4. Packages prepared in

accordance with Sec. 173.13 must be marked, in association with the

proper shipping name, with the following statement: ``This package

conforms to 49 CFR 173.13.''

One commenter was concerned that no specific exception from the

segregation requirements was proposed in the section, as is provided in

the exemptions. RSPA notes that the

[[Page 27170]]

segregation requirements of the HMR are based on package labels.

Therefore, materials that are excepted from the labeling requirements

of the HMR are also excepted from the segregation requirements of the

HMR. For clarification, RSPA is revising Secs. 172.500 and 173.13 to

note that packages conforming to the requirements in Sec. 173.13 are

excepted from the placarding requirements of the HMR.

Commenters requested that RSPA identify all of the exemptions

potentially affected by the adoption of Sec. 173.13. Those exemptions

are DOT E-7891, 7909, 8249, 9168, 10672, 10755, 10891, 10962, and

10977.

Section 173.21. In the NPRM, RSPA proposed to incorporate into

Sec. 173.21 the provisions of a competent authority approval for

temperature-controlled shipments. RSPA received several comments in

support of the proposal, but commenters also requested changes to the

section. One commenter noted that no specific reference to cargo tanks

or portable tanks was made in the proposed section and questioned

whether they were included. Section 173.21(f)(3) does not authorize

packagings, but provides methods of stabilization that are authorized

by the Associate Administrator for Hazardous Materials Safety.

Therefore, cargo tanks or portable tanks are not excluded from the

provisions of Sec. 173.21(f)(3).

Several commenters requested that Sec. 173.21(f)(3)(i)(B), which

requires the temperature of the material to be measured and entered on

a written record at the time the material is filled, only apply to bulk

packagings and not to all packagings. The commenters stated that

measuring and recording the temperature of every small, individual

package as it is filled is an unnecessary burden that would do nothing

to enhance transportation safety. RSPA believes that measuring and

recording the temperature of the packaging prior to transport is an

important part of the approved stabilization process. However, RSPA is

revising Sec. 173.21(f)(3)(i)(B) to require determination of the

temperature of the package, by appropriate means, at the time it is

loaded into the transport vehicle, not when the package is filled. This

should eliminate the unnecessary measurement of packages that are in

storage and not in transportation.

Section 173.32a. As proposed, RSPA is removing the requirement that

an approval agency submit an approval certificate to the Associate

Administrator for Hazardous Materials Safety.

Section 173.155. RSPA is amending this section as proposed.

Section 173.171. Sections 173.171 and 177.838(g) prescribe

requirements for smokeless powder for small arms. However,

Sec. 177.838(g) provides additional relief by allowing inside packages

of smokeless powder to be overpacked in UN 4G boxes, provided the net

weight of smokeless powder in any one box does not exceed 7.26 kg (16

pounds). This provision is not contained in Sec. 173.171. Therefore, as

proposed, RSPA is removing the Sec. 177.838(g) provisions pertaining to

classification and packaging, and adding the provision concerning

smokeless powder in overpacks to Sec. 173.171. In addition, as

proposed, RSPA is broadening the exception for reclassification of

smokeless powder to Division 4.1 to include transportation by vessel

and cargo aircraft. RSPA received two comments on this proposal. One

commenter agreed with the proposal but requested that there be no limit

on the amount of material authorized per transport vehicle. In the

NPRM, RSPA proposed to extend the application of an existing section,

i.e., Sec. 173.171, to other modes of transport, but the amount of

material authorized per transport vehicle was not proposed for

amendment. RSPA believes that the Sec. 173.171 100-pound limitation on

smokeless powder, reclassed as a Division 4.1 material, per transport

vehicle is necessary to retain the level of safety that has been

maintained for the last several years in the highway and rail modes.

One of the major arguments submitted in support of the original

regulatory provision was that the 100-pound limit would preclude a

major conflagration should these materials become involved in cargo

fires. Therefore, RSPA has not adopted the commenter's request to

eliminate the 100-pound weight limitation. Another commenter objected

to RSPA extending this reclassification to transportation by aircraft

because of its potential explosive hazards. This provision is

consistent with an exemption (DOT E-9997) that was issued in 1988.

Based on the successful experience under this exemption, RSPA believes

there is no basis for the suggestion that the reclassification of

smokeless powder for small arms to Division 4.1, under special testing

and approval procedures would provide an unacceptable level of safety

in air transportation. Therefore, RSPA is extending the applicability

of Sec. 173.171 to transportation by cargo aircraft.

Section 173.220. RSPA is amending this section as proposed.

Section 173.230. RSPA is amending this section as proposed.

Section 173.435. In Sec. 173.435, RSPA is amending the Table of

A1 and A2 values by adding an entry for MFP (mixed fission

products). This entry was inadvertently left off the table under Docket

HM-169A (61 FR 20747).

Part 176

Section 176.104. RSPA is amending this section as proposed.

Part 177

Section 177.801. RSPA is amending this section as proposed.

Section 177.818. RSPA is removing this section as proposed.

Section 177.821. RSPA is removing this section as proposed.

Section 177.822. RSPA is removing this section as proposed.

Sections 177.824, 177.834, and 180.407. In the NPRM, RSPA proposed

to remove Secs. 177.824 and 177.834(j) because they duplicate other HMR

provisions. RSPA proposed removing Sec. 177.834(b) because RSPA is not

aware of any hazardous material that is transported on pole trailers.

RSPA also proposed to add a new Sec. 177.834(j) consolidating the

provisions of Secs. 177.837(d), 177.839(d), and 177.841(d) that require

manholes and valves on cargo tanks to be closed prior to

transportation.

RSPA received several comments in support of these proposals. One

commenter requested that RSPA not delete Sec. 177.824 because it would

eliminate the responsibility of a motor carrier who is transporting

another party's cargo tank from satisfying the inspection and retesting

requirements of Part 180. RSPA agrees with the commenter; however,

rather than retaining Sec. 177.824, RSPA is removing it and revising

Sec. 180.407 to make it clear that a cargo tank may not be transported

unless it conforms to the retest requirements of Part 180. Otherwise,

RSPA is adopting these amendments as proposed.

Section 177.835. RSPA is removing paragraphs (k), (l), and (m) as

proposed.

Section 177.838. RSPA is amending this section as proposed.

Section 177.839. In the NPRM, RSPA proposed to revise paragraph (a)

by limiting the applicability of the paragraph to nitric acid in

concentrations of 50 percent or greater. In addition, RSPA proposed

removing the paragraph (a) restriction on stacking containers of nitric

acid higher than two tiers and all of paragraph (b) because they are

outdated and unnecessary. RSPA received one comment that supported the

proposed amendments to

[[Page 27171]]

Sec. 177.839 but requested clarification of the term ``other material''

as used in the section. The term ``other material'' refers to any other

kind of material, including nonhazardous materials. Therefore, RSPA has

adopted the amendments as proposed.

Section 177.841. As proposed, RSPA is amending Sec. 177.841,

consistent with Sec. 175.630, to authorize the transport of foodstuffs

and poisons in the same motor vehicle when loaded into separate closed

unit load devices. In addition, RSPA is removing the provision allowing

use of the container identified as package ``4000'' in the National

Motor Freight Classification 100-1, for the transport of foodstuffs and

poisons on the same motor vehicle. RSPA believes that this container

has not been used for some time and, therefore, reference to it is

unnecessary. RSPA received several comments in support of this

proposal. In addition, one commenter requested that RSPA authorize any

Division 6.1 material, except materials poisonous by inhalation, to be

transported with food grade material provided both materials are

appropriately packaged in performance-oriented containers. RSPA

believes this request to be beyond the scope of this rulemaking and has

not adopted this commenter's request.

Section 177.848. RSPA is amending this section as proposed.

Part 178

Section 178.315. In the NPRM, RSPA proposed removing the

Specification MC200 requirements from the HMR because RSPA believes

that this container is no longer utilized in hazardous materials

service. RSPA received one comment on this proposal stating that the

commenter was unaware of any person using the DOT Specification MC200.

Therefore, as proposed, RSPA is removing the Specification MC200

requirements from the HMR.

III. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866 and was not reviewed by the

Office of Management and Budget. The rule is not considered significant

under the regulatory policies and procedures of the Department of

Transportation (44 FR 11034). The economic impact of this rule is so

minimal that the preparation of a regulatory evaluation is not

warranted.

Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism''). The

Federal hazardous materials transportation law (49 U.S.C. 5101-5127)

contains an express preemption provision that preempts State, local,

and Indian tribe requirements on certain covered subjects. Covered

subjects are:

(i) the designation, description, and classification of hazardous

material;

(ii) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(iii) the preparation, execution, and use of shipping documents

pertaining to hazardous material and requirements respecting the

number, content, and placement of such documents;

(iv) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(v) the design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous material.

Title 49 U.S.C. 5125(b)(2) provides that if DOT issues a regulation

concerning any of the covered subjects after November 16, 1990, DOT

must determine and publish in the Federal Register the effective date

of Federal preemption. That effective date may not be earlier than the

90th day following the date of issuance of the final rule and not later

than two years after the date of issuance. This final rule clarifies

and provides relief from certain regulations governing the

transportation of hazardous materials. RSPA has determined the

effective date of Federal preemption for these requirements is October

1, 1996. Because RSPA lacks discretion in this area, preparation of a

federalism assessment is not warranted.

Regulatory Flexibility Act

I certify that this final rule will not have a significant economic

impact on a substantial number of small entities. This final rule does

not impose any new requirements on persons subject to the HMR.

Paperwork Reduction Act

Information collection requirements subject to approval by the

Office of Management and Budget (OMB) are addressed in this final rule

in Sec. 171.16 for incident reporting (OMB control number 2137-0039)

and subpart C of part 172 and Sec. 172.604 for shipping papers (OMB

control number 2137-0034). Provisions in this final rule will result in

minor reduction in information collection burdens under both approvals.

RSPA is requesting reinstatement and revision of OMB control number

2137-0039 from OMB and will display, through publication in the Federal

Register, the control number when it is approved by OMB. Public comment

on this request was invited through publication of a Federal Register

notice on March 5, 1996 (61 FR 8706). OMB control number 2173-0034 is

currently approved and the change in burden is not sufficient to

warrant revision of the approval. Under the Paperwork Reduction Act of

1995, no person generally is required to respond to a requirement for

collection of information unless the requirement displays a valid OMB

control number.

Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Incorporation by reference, Reporting and recordkeeping

requirements.

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labeling,

Marking, Packaging and containers, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation, Incorporation by reference,

Packaging and containers, Radioactive materials, Reporting and

recordkeeping requirements, Uranium.

49 CFR Part 176

Hazardous materials transportation, Maritime carriers, Radioactive

materials, Reporting and recordkeeping requirements.

49 CFR Part 177

Hazardous materials transportation, Motor carriers, Radioactive

materials, Reporting and recordkeeping requirements.

[[Page 27172]]

49 CFR Part 178

Hazardous materials transportation, Packaging and containers,

Reporting and recordkeeping requirements.

49 CFR Part 180

Hazardous materials transportation, Motor carriers, Motor vehicle

safety, Packaging and containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49 CFR parts 171, 172, 173, 176,

177, 178, and 180 are amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. 171.7 [Amended]

1a. In Sec. 171.7(a)(3), in the table, the entry ``International

Maritime Dangerous Goods (IMDG) Code, 1990 Consolidated Edition, as

amended by Amendment 27 (1994) (English edition)'', in column 2, the

reference ``173.21;'' is added in appropriate numerical order.

1b. In Sec. 171.11, paragraph (d)(1) is revised to read as follows:

Sec. 171.11 Use of ICAO Technical Instructions.

* * * * *

(d) * * *

(1) For a material that meets the definition of a hazardous

substance as defined in this subchapter, the shipping paper and package

markings must conform to the provisions in Sec. 172.203(c) and 172.324,

respectively, of this subchapter.

* * * * *

2. In Sec. 171.16, paragraph (c) is revised, paragraph (d)(2) is

amended by removing the word ``nor'' at the end of the paragraph,

paragraph (d)(3) is redesignated as paragraph (d)(4), and a new

paragraph (d)(3) is added to read as follows:

Sec. 171.16 Detailed hazardous materials incident reports.

* * * * *

(c) Except as provided in paragraph (d) of this section, the

requirements of paragraph (a) of this section do not apply to incidents

involving the unintentional release of a hazardous material--

(1) Transported under one of the following proper shipping names:

(i) Consumer commodity.

(ii) Battery, electric storage, wet, filled with acid or alkali.

(iii) Paint and paint related material when shipped in a packaging

of five gallons or less.

(2) Prepared and transported as a limited quantity shipment in

accordance with this subchapter.

(d) * * *

(3) Except for consumer commodities, materials in Packing Group I;

or

* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

3. The authority citation for part 172 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. 172.101 [Amended]

4. In the Sec. 172.101 Hazardous Materials Table, the following

amendments are made:

a. The headings for columns (8), (8B),(8C), (9A), (10), (10A), and

(10B) are revised to read ``Packaging (Sec. 173. * * *)'', ``Nonbulk'',

``Bulk'', ``Passenger aircraft/rail'', ``Vessel Stowage'',

``Location'', and ``Other'', respectively.

b. For the entries ``Cartridges for weapons, blank or Cartridges,

small arms, blank, UN 0014'', ``Cartridges for weapons, inert

projectile or Cartridges, small arms, UN0012'', ``Cartridges, power

device, UN0323'', and ``Cartridges, small arms'', in Column (7),

special provision ``112'' is removed.

c. For the entries ``Cartridges for weapons, blank or Cartridges,

small arms, blank, UN 0014'', ``Cartridges for weapons, inert

projectile or Cartridges, small arms, UN0012'', and ``Cartridges, power

device, UN0323'', in Column (8A), the word ``None'' is revised to read

``63''.

d. For the entry ``Cartridges, small arms'', in Column (8A), the

number ``230'' is revised to read ``63''.

e. For the entry ``Ethanol or Ethyl alcohol or Ethanol solutions or

Ethyl alcohol solutions'', in Column (7), the number ``24,'' is added

immediately preceding ``T1'', in Packing Group II, and the number

``24,'' is added immediately preceding ``B1'' in Packing Group III.

f. For the entry ``Smokeless powder for small arms (100 pounds or

less), NA3178'', in Column (9B), the word ``Forbidden'' is revised to

read ``7.3 kg''.

Sec. 172.102 [Amended]

5. In Sec. 172.102, in paragraph (c)(1), special provision ``112''

is removed.

6. In Sec. 172.201, paragraph (d) is revised to read as follows:

Sec. 172.201 General entries.

* * * * *

(d) Emergency response telephone number. Except as provided in

Sec. 172.604(c), a shipping paper must contain an emergency response

telephone number, as prescribed in subpart G of this part.

7. In Sec. 172.203, paragraph (c)(1) is revised to read as follows:

Sec. 172.203 Additional description requirements.

* * * * *

(c) Hazardous substances. (1) Except for Class 7 (radioactive)

materials described in accordance with paragraph (d) of this section,

if the proper shipping name for a material that is a hazardous

substance does not identify the hazardous substance by name, the name

of the hazardous substance must be entered in parentheses in

association with the basic description. If the material contains two or

more hazardous substances, at least two hazardous substances, including

the two with the lowest reportable quantities (RQs), must be

identified. For a hazardous waste, the waste code (e.g., D001), if

appropriate, may be used to identify the hazardous substance.

* * * * *

Sec. 172.203 [Amended]

8. In addition, in Sec. 172.203, the following amendments are made:

a. In paragraph (e)(2), the phrase ``and paragraph (e)(3) of this

section'' is removed.

b. Paragraph (e)(3) is removed.

9. In Sec. 172.324, paragraph (a) is revised to read as follows:

Sec. 172.324 Hazardous substances in non-bulk packagings.

* * * * *

(a) Except for packages of radioactive material labeled in

accordance with Sec. 172.403, if the proper shipping name of a material

that is a hazardous substance does not identify the hazardous substance

by name, the name of the hazardous substance must be marked on the

package, in parentheses, in association with the proper shipping name.

If the material contains two or more hazardous substances, at least two

hazardous substances, including the two with the lowest reportable

quantities (RQs), must be identified. For a hazardous waste, the waste

code (e.g., D001), if appropriate, may be used to identify the

hazardous substance.

* * * * *

10. In Sec. 172.402, paragraph (d) is revised to read as follows:

[[Page 27173]]

Sec. 172.402 Additional labeling requirements.

* * * * *

(d) Class 7 (Radioactive) Materials. Except as otherwise provided

in this paragraph, each package containing a Class 7 material that also

meets the definition of one or more additional hazard classes must be

labeled as a Class 7 material as required by Sec. 172.403 of this

subpart and for each additional hazard. A subsidiary hazard label is

not required on a package containing a Class 7 material that conforms

to criteria specified in Sec. 173.4 of this subchapter, except

Sec. 173.4(a)(1)(iv) of this subchapter.

* * * * *

11. In Sec. 172.500, paragraphs (b)(4) and (b)(5) are redesignated

as paragraphs (b)(5) and (b)(6), respectively, and a new paragraph

(b)(4) is added to read as follows:

Sec. 172.500 Applicability of placarding requirements.

* * * * *

(b) * * *

(4) Hazardous materials prepared in accordance with Sec. 173.13 of

this subchapter;

* * * * *

12. In Sec. 172.600, paragraph (d) is revised to read as follows:

Sec. 172.600 Applicability and general requirements.

* * * * *

(d) Exceptions. The requirements of this subpart do not apply to

hazardous material which is excepted from the shipping paper

requirements of this subchapter or a material properly classified as an

ORM-D.

13. In Sec. 172.604, new paragraph (c) is added to read as follows:

Sec. 172.604 Emergency response telephone number.

* * * * *

(c) The requirements of this section do not apply to--

(1) Hazardous materials that are offered for transportation under

the provisions applicable to limited quantities; and

(2) Materials properly described under the shipping names

``Engines, internal combustion'', ``Battery powered equipment'',

``Battery powered vehicle'', Wheelchair, electric'', ``Carbon dioxide,

solid'', ``Dry ice'', ``Fish meal, stabilized'', ``Fish scrap,

stabilized'', ``Castor bean'', ``Castor meal'', ``Castor flake'',

``Castor pomace'', or ``Refrigerating machine''.

14. In Sec. 172.702, paragraph (b) is revised to read as follows:

Sec. 172.702 Applicability and responsibility for training and

testing.

* * * * *

(b) Except as provided in Sec. 172.704(c)(1), a hazmat employee who

performs any function subject to the requirements of this subchapter

may not perform that function unless instructed in the requirements of

this subchapter that apply to that function. It is the duty of each

hazmat employer to comply with the applicable requirements of this

subchapter and to thoroughly instruct each hazmat employee in relation

thereto.

* * * * *

15. In Sec. 172.704, paragraphs (c)(1) and (c)(2) and the

introductory text of paragraph (d) are revised to read as follows:

Sec. 172.704 Training requirements.

* * * * *

(c) * * * (1) Initial training. A new hazmat employee, or a hazmat

employee who changes job functions may perform those functions prior to

the completion of training provided--

(i) The employee performs those functions under the direct

supervision of a properly trained and knowledgeable hazmat employee;

and

(ii) The training is completed within 90 days after employment or a

change in job function.

(2) Recurrent training. A hazmat employee shall receive the

training required by this subpart at least once every three years.

* * * * *

(d) Recordkeeping. A record of current training, inclusive of the

preceding three years, in accordance with this section shall be created

and retained by each hazmat employer for as long as that employee is

employed by that employer as a hazmat employee and for 90 days

thereafter. The record shall include:

* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND

PACKAGINGS

16. The authority citation for part 173 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

17. In Sec. 173.4, the section heading is revised, paragraph

(a)(11) is removed, paragraph (a) introductory text, paragraphs (a)(9)

and (a)(10) are revised, and a new paragraph (c) is added to read as

follows:

Sec. 173.4 Small quantity exceptions.

(a) Small quantities of Class 3, Division 4.1, Division 4.2 (PG II

and III), Division 4.3 (PG II and III), Division 5.1, Division 5.2,

Division 6.1, Class 7, Class 8, and Class 9 materials that also meet

the definition of one or more of these hazard classes, are not subject

to any other requirements of this subchapter when--

* * * * *

(9) The package is not opened or otherwise altered until it is no

longer in commerce; and

(10) The shipper certifies conformance with this section by marking

the outside of the package with the statement ``This package conforms

to 49 CFR 173.4'' or, alternatively, until October 1, 2001, with the

statement ``This package conforms to the conditions and limitations

specified in 49 CFR 173.4.''

* * * * *

(c) Packages which contain a Class 2, Division 4.2 (PG I), or

Division 4.3 (PG I) material conforming to paragraphs (a)(1) through

(a)(10) of this section may be offered for transportation or

transported if specifically approved by the Associate Administrator for

Hazardous Materials Safety.

18. Section 173.13 is added to Subpart A to read as follows:

Sec. 173.13 Exceptions for Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1,

and Classes 8 and 9 materials.

(a) A Class 3, 8 or 9, or Division 4.1, 4.2, 4.3, 5.1, or 6.1

material is excepted from the labeling and placarding requirements of

this subchapter if prepared for transportation in accordance with the

requirements of this section. A material that meets the definition of a

material poisonous by inhalation may not be offered for transportation

or transported under provisions of this section.

(b) A hazardous material conforming to requirements of this section

may be transported by motor vehicle, rail car, or cargo-only aircraft.

Only hazardous materials permitted to be transported aboard a cargo-

only aircraft by column (9B) of the Hazardous Materials Table in

Sec. 172.101 of this subchapter are authorized for transport aboard

cargo-only aircraft pursuant to the provisions of this section.

(c) A hazardous material permitted by paragraph (a) of this section

must be packaged as follows:

(1) For liquids:

(i) The hazardous material must be placed in a tightly closed

glass, plastic or metal inner packaging with a maximum capacity not

exceeding 1.2 liters. Sufficient outage must be provided such that the

inner packaging will not become liquid full at 55 deg.C (130 deg.F).

The net quantity (measured at 20 deg.C

[[Page 27174]]

(68 deg.F)) of liquid in any inner packaging may not exceed one liter.

(ii) The inner packaging must be placed in a hermetically-sealed

barrier bag which is impervious to the lading, and then wrapped in a

non-reactive absorbent material in sufficient quantity to completely

absorb the contents of the inner packaging, and placed in a snugly

fitting, metal can.

(iii) The metal can must be securely closed. For liquids that are

in Division 4.2 or 4.3, the metal can must be hermetically sealed. For

Division 4.2 materials in Packing Group I, the metal can must be tested

in accordance with part 178 of this subchapter at the Packing Group I

performance level.

(iv) The metal can must be placed in a fiberboard box that is

placed in a hermetically-sealed barrier bag which is impervious to the

lading.

(v) The intermediate packaging must be placed inside a securely

closed, outer packaging conforming to Sec. 173.201.

(vi) Not more than four intermediate packagings are permitted in an

outer packaging.

(2) For solids:

(i) The hazardous material must be placed in a tightly closed

glass, plastic or metal inner packaging. The net quantity of material

in any inner packaging may not exceed 2.85 kg (6.25 pounds).

(ii) The inner packaging must be placed in a hermetically-sealed

barrier bag which is impervious to the lading.

(iii) The barrier bag and its contents must be placed in a

fiberboard box that is placed in a hermetically-sealed barrier bag

which is impervious to the lading.

(iv) The intermediate packaging must be placed inside an outer

packaging conforming to Sec. 173.211.

(v) Not more than four intermediate packagings are permitted in an

outer packaging.

(d) The outside of the package must be marked, in association with

the proper shipping name, with the statement: ``This package conforms

to 49 CFR 173.13.''

19. In Sec. 173.21, paragraph (f)(3) is revised to read as follows:

Sec. 173.21 Forbidden materials and packages.

* * * * *

(f) * * *

(3) Refrigeration may be used as a means of stabilization only when

approved by the Associate Administrator for Hazardous Materials Safety.

For status of approvals previously issued by the Bureau of Explosives,

see Sec. 171.19 of this subchapter. Methods of stabilization approved

by the Associate Administrator for Hazardous Materials Safety are as

follows:

(i) For highway transportation:

(A) A material meeting the criteria of this paragraph (f) may be

transported only in a transport vehicle, freight container, or motor

vehicle equipped with a mechanical refrigeration unit, or loaded with a

consumable refrigerant, capable of maintaining the inside temperature

of the hazardous material at or below the control temperature required

for the material during transportation.

(B) Each package containing a material meeting the criteria of this

paragraph (f) must be loaded and maintained at or below the control

temperature required for the material. The temperature of the material

must be determined by appropriate means and entered on a written record

at the time the packaging is loaded.

(C) The vehicle operator shall monitor the inside temperature of

the transport vehicle, freight container, or motor vehicle and enter

that temperature on a written record at the time the package is loaded

and thereafter at intervals not exceeding two hours. Alternatively, a

transport vehicle, freight container, or motor vehicle may be equipped

with a visible or audible warning device that activates when the inside

temperature of the transport vehicle, freight container, or motor

vehicle exceeds the control temperature required for the material. The

warning device must be readily visible or audible, as appropriate, from

the vehicle operator's seat in the vehicle.

(D) The carrier shall advise the vehicle operator of the emergency

temperature for the material, and provide the vehicle operator with

written procedures that must be followed to assure maintenance of the

control temperature inside the transport vehicle, freight container, or

motor vehicle. The written procedures must include instructions for the

vehicle operator on actions to take if the inside temperature exceeds

the control temperature and approaches or reaches the emergency

temperature for the material. In addition, the written temperature-

control procedures must identify enroute points where the consumable

refrigerant may be procured, or where repairs to, or replacement of,

the mechanical refrigeration unit may be accomplished.

(E) The vehicle operator shall maintain the written temperature-

control procedures, and the written record of temperature measurements

specified in paragraph (f)(3)(i)(C) of this section, if applicable, in

the same manner as specified in Sec. 177.817 of this subchapter for

shipping papers.

(F) If the control temperature is maintained by use of a consumable

refrigerant (e.g., dry ice or liquid nitrogen), the quantity of

consumable refrigerant must be sufficient to maintain the control

temperature for twice the average transit time under normal conditions

of transportation.

(G) A material that has a control temperature of 40 deg.C (104

deg.F) or higher may be transported by common carrier. A material that

has a control temperature below 40 deg.C (104 deg.F) must be

transported by a private or contract carrier.

(ii) For transportation by vessel, shipments are authorized in

accordance with the control-temperature requirements of Section 21 of

the General Introduction of the International Maritime Dangerous Goods

Code (IMDG Code).

* * * * *

20. In Sec. 173.32a, paragraph (c) is revised to read as follows:

Sec. 173.32a Approval of Specification IM portable tanks.

* * * * *

(c) Disposition of approval certificates. A copy of each approval

certificate must be retained by the approval agency and by the owner of

each IM portable tank.

* * * * *

Sec. 173.155 [Amended]

21. In Sec. 173.155, in paragraph (b)(1), the wording ``4.0 L (1

gallon)'' is revised to read ``5.0 L (1.3 gallons)''.

22. In Sec. 173.171, at the end of paragraph (a) the semicolon is

removed and a period is added in its place, the introductory text and

paragraph (b) are revised and a new paragraph (d) is added to read as

follows:

Sec. 173.171 Smokeless powder for small arms.

Smokeless powder for small arms which has been classed in Division

1.3 may be reclassed in Division 4.1, for transportation by motor

vehicle, rail car, vessel, or cargo-only aircraft, subject to the

following conditions:

* * * * *

(b) The total quantity of smokeless powder may not exceed 45.4 kg

(100 pounds) net mass in:

(1) One rail car, motor vehicle, or cargo-only aircraft; or

(2) One freight container on a vessel, not to exceed four freight

containers per vessel.

* * * * *

(d) Inside packages that have been examined and approved by the

[[Page 27175]]

Associate Administrator for Hazardous Materials Safety may be packaged

in UN 4G fiberboard boxes meeting the Packing Group I performance

level, provided all inside containers are packed to prevent movement

and the net weight of smokeless powder in any one box does not exceed

7.3 kg (16 pounds).

23. In Sec. 173.220, paragraph (g)(2) is revised to read as

follows:

Sec. 173.220 Internal combustion engines, self-propelled vehicles, and

mechanical equipment containing internal combustion engines or wet

batteries.

* * * * *

(g) * * *

(2) Are not subject to the requirements of subparts D, E, and F

(marking, labeling, and placarding, respectively) of part 172 or

Sec. 172.604 (emergency response telephone number) of this subchapter

for transportation by vessel or aircraft.

Sec. 173.63 [Amended]

Sec. 173.230 [Removed]

24. Paragraph (b) of Sec. 173.230 is redesignated as paragraph (b)

of Sec. 173.63 and Sec. 173.230 is removed.

24a. In Sec. 173.435, in the Table of A1 and A2 values

for radionuclides, the following entry is added, in appropriate

alphabetical order, to read as follows:

Sec. 173.435 Table of A1 and A2 values for radionuclides.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Specific activity

Symbol of radionuclide Element and A1 (TBq) A1 (Ci) A2 (TBq) A2 (Ci) -------------------------

atomic No. (TBq/g) (Ci/g)

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

MFP.................................. ........... (see Sec. 173.433).... ........... (see Sec. 173.433).... ........... ........... ...........

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

PART 176--CARRIAGE BY VESSEL

25. The authority citation for part 176 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

26. In Sec. 176.104, the first sentence of paragraph (i) is revised

to read as follows:

Sec. 176.104 Loading and unloading Class 1 (explosive) materials.

* * * * *

(i) A landing mat must be used when a draft of nonpalletized

Division 1.1 or 1.2 (Class A and B explosive materials) is deposited on

deck. * * *

* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

27. The authority citation for part 177 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

28. Section 177.801 is revised to read as follows:

Sec. 177.801 Unacceptable hazardous materials shipments.

No person may accept for transportation or transport by motor

vehicle a forbidden material or hazardous material that is not prepared

in accordance with the requirements of this subchapter.

Secs. 177.818, 177.821, 177.822, and 177.824 [Removed]

29. Sections 177.818, 177.821, 177.822, and 177.824 are removed.

30. In Sec. 177.834, paragraph (b) is removed and reserved, and

paragraph (j) is revised to read as follows:

Sec. 177.834 General requirements.

* * * * *

(j) Manholes and valves closed. A person may not drive a cargo tank

and a motor carrier may not permit a person to drive a cargo tank motor

vehicle containing a hazardous material regardless of quantity unless:

(1) All manhole closures are closed and secured; and

(2) All valves and other closures in liquid discharge systems are

closed and free of leaks.

* * * * *

Sec. 177.835 [Amended]

31. In Sec. 177.835, paragraphs (k), (l), and (m) are removed.

Sec. 177.837 [Amended]

32. In Sec. 177.837, paragraph (d) is removed.

33. In Sec. 177.838, paragraph (g) is revised to read as follows:

Sec. 177.838 Class 4 (flammable solid) materials, Class 5 (oxidizing)

materials, and Division 4.2 (pyroforic liquid) materials.

* * * * *

(g) A motor vehicle may only contain 45.4 kg (100 pounds) or less

net mass of material described as ``Smokeless powder for small arms,

Division 4.1''.

* * * * *

34. Section 177.839 is revised to read as follows:

Sec. 177.839 Class 8 (corrosive) materials.

(See also Sec. 177.834(a) through (j).)

(a) Nitric acid. No packaging of nitric acid of 50 percent or

greater concentration may be loaded above any packaging containing any

other kind of material.

(b) Storage batteries. All storage batteries containing any

electrolyte must be so loaded, if loaded with other lading, that all

such batteries will be protected against other lading falling onto or

against them, and adequate means must be provided in all cases for the

protection and insulation of battery terminals against short circuits.

35. In Sec. 177.841, paragraph (d) is removed and reserved, and

paragraph (e)(1) is revised to read as follows:

Sec. 177.841 Division 6.1 (poisonous) and Division 2.3 (poisonous

gas) materials.

* * * * *

(e) * * *

(1) Bearing a POISON label in the same motor vehicle with material

that is marked as or known to be foodstuffs, feed or any edible

material intended for consumption by humans or animals unless the

poisonous material is packaged in accordance with this subchapter and

is:

(i) Overpacked in a metal drum as specified in Sec. 173.25(c) of

this subchapter; or

(ii) Loaded into a closed unit load device and the foodstuffs,

feed, or other edible material are loaded into another closed unit load

device;

* * * * *

Sec. 177.848 [Amended]

36. In Sec. 177.848, paragraph (e)(5), is amended by removing the

phrase ``ammonium nitrate fertilizer'' and adding in its place the

phrase ``ammonium nitrate (UN 1942) and ammonium nitrate fertilizer''.

PART 178--SPECIFICATIONS FOR PACKAGINGS

37. The authority citation for part 178 continues to read as

follows:

[[Page 27176]]

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Secs. 178.315, 178.315-1, 178.315-2, 178.315-3, 178.315-4, 178.315-5

[Removed]

38. Sections 178.315, 178.315-1, 178.315-2, 178.315-3, 178.315-4,

and 178.315-5 are removed.

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

39. The authority citation for part 180 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. 180.407 [Amended]

40. In Sec. 180.407, in paragraph (a)(1), the words ``filled and

offered for shipment'' are removed and ``filled and offered for

transportation or transported'' are added in their place.

Issued in Washington, DC, on May 17, 1996, under authority

delegated in 49 CFR Part 1.

Rose McMurray,

Acting Deputy Administrator, Research and Special Programs

Administration.

[FR Doc. 96-12955 Filed 5-29-96; 8:45 am]

BILLING CODE 4910-60-P