Revision of Miscellaneous Hazardous Materials Regulations; Regulatory Review

SUMMARY: RSPA proposes to revise 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 proposing reductions

in 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 and

directing front line regulators to ``get out of Washington'' and create

grassroots partnerships with the regulated community.

DATES: Comments must be received on or before April 19, 1996.

ADDRESSES: Please address written comments to the Dockets Unit (DHM-

30), Research and Special Programs Administration, U.S. Department of

Transportation, Washington, DC 20590-0001. Comments may also be faxed

to (202) 366-3753. Comments should identify the docket (Docket No. HM-

222B). 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 a.m. to 5:00 p.m., Monday through Friday, excluding public

holidays.

FOR FURTHER INFORMATION CONTACT: John A. Gale or Jennifer Antonielli,

(202) 366-8553; Office of Hazardous Materials Standards, 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and elimination or revision of those regulations that are outdated or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 to be held from September to January 1996. On October 13,

1995, (60 FR 53321) RSPA issued an NPRM under Docket HM-222A that

proposed to remove those sections of the regulations that have been

identified in RSPA's regulatory review, in comments, and in the public

meetings held to date as being unnecessary, duplicative, or outdated.

In this NPRM, RSPA proposes to amend various sections of the HMR

based on agency initiative and on written and oral comments received

from the public on regulatory reform. This rulemaking is one of several

rulemakings that RSPA will initiate in response to its regulatory

review, public meetings, and comments.

II. Proposed Changes

Part 171

Section 171.16. Several commenters requested modification of the

incident reporting requirements in Part 171. One commenter requested

that exceptions from the incident reporting requirements in Sec. 171.16

be provided for limited quantities. RSPA concurs 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. Therefore, except for materials

transported by aircraft, RSPA proposes certain exceptions from the

incident reporting requirements in Sec. 171.16 for limited quantities

of Packing Group II and III materials.

Part 172

Section 172.101. Based on a commenter's request, RSPA proposes to

amend 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, would be 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), would be

relocated to Sec. 173.63(b) to minimize confusion. See also preamble

discussion on proposed amendments to Sec. 173.230.

One commenter requested that RSPA amend 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. Special Provision 24 recently was adopted in the HMR for the

shipping name ``Alcoholic beverages'' to provide alternative packing

group criteria to that of Sec. 173.121. The special provision specifies

that alcoholic beverages with more than 70 percent alcohol by volume

are assigned Packing Group II and alcoholic beverages containing more

than 24 percent but not more than 70 percent alcohol are assigned

Packing Group III. The commenter requested that the special provision

also be assigned to ethanol because Packing Group II or III distilled

spirits can be and are shipped under either ``Alcoholic beverages'' or

``Ethanol or Ethyl alcohol or Ethanol solutions or Ethyl alcohol

solutions.'' RSPA agrees with the commenter and proposes to add Special

Provision ``24'' in Column (7) of the Sec. 172.101 Table for the entry

``Ethanol or Ethyl alcohol or Ethanol solutions or Ethyl alcohol

solutions.''

Section 172.102. In paragraph (c)(1), RSPA proposes to remove

Special Provision 112 because its provisions would be relocated to

Sec. 173.63(b). See also preamble discussion on proposed changes to

Secs. 172.101 and 173.230.

Section 172.201. For clarity, RSPA proposes to amend

Sec. 172.201(d) by adding a cross-reference to Sec. 172.604(c)

[[Page 6479]]

for exceptions from the requirement to maintain an emergency response

telephone number.

Section 172.203. RSPA proposes to revise the requirements for

identifying hazardous substances on shipping papers and package

markings. Currently under the HMR, 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.

RSPA proposes, consistent with the technical name requirements in

Sec. 172.203(k), to require for hazardous materials that contain two or

more hazardous substances that at least two hazardous substances be

identified on shipping papers and package markings.

In addition, RSPA proposes to amend paragraph (e)(2) and remove

paragraph (e)(3) to eliminate the requirement to enter on shipping

papers ``RESIDUE: Last Contained * * *'' for packages containing only

the residue of a hazardous substance. This proposal is intended to

reduce regulatory burdens on industry.

Section 172.316. One commenter requested that RSPA allow consumer

commodities that are prepared in accordance with the International

Civil Aviation Organization Technical Instructions for the Safe

Transport of Dangerous Goods by Air (ICAO Technical Instructions) to be

transported by motor vehicle. RSPA concurs and proposes to modify

Sec. 172.316 to allow the CLASS 9 label in lieu of the ORM-D marking on

packages of consumer commodities.

Section 172.324. Consistent with proposed amendments to

Sec. 172.203(c), RSPA proposes to amend Sec. 172.324(a) to ease the

burden of identifying each hazardous substance on package markings.

RSPA would require for packages that contain a mixture or solution

comprising two or more hazardous substances, that at least two

hazardous substances be marked on the package in association with the

proper shipping name.

Section 172.402. One commenter requested 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. Generally, the commenter seeks

parity with a labeling exception in Sec. 173.4 for small quantities of

hazardous materials. 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. Because the non-radioactive hazards of these materials pose a

minimal risk in transportation, the commenter suggests that

Sec. 172.402(d) be revised to except them from the requirement to label

for the subsidiary hazard. Based upon successful experience under

exemption DOT-E 10660, which currently authorizes transportation of

certain packages, and consistent with the commenter's request, RSPA

proposes to revise paragraph (d) by adding an exception from the

subsidiary hazard labeling requirement for packages of Class 7

materials that otherwise conform to Sec. 173.4.

Section 172.500. RSPA proposes to redesignate paragraphs (b)(4) and

(b)(5) as paragraphs (b)(5) and (b)(6) and add a new paragraph (b)(4)

to clarify that small quantities of Division 4.3 materials prepared in

accordance with Sec. 173.13 are excepted from the placarding

requirements of Subpart F of Part 172.

Section 172.600. In accordance with Sec. 172.600(d), a material

that is classed as ORM-D, except when offered or intended for

transportation by air, is excepted from the emergency response

information and telephone number requirements of Subpart G of Part 172.

The Conference on Safe Transportation of Hazardous Articles (COSTHA)

petitioned (P-1094) RSPA to except all ORM-D materials, including those

transported by air, from emergency response information requirements

because of the small quantities involved and minimal hazards associated

with ORM-D materials. COSTHA further stated that because an ORM-D

material is not assigned an identification number, no specific

emergency instructions are provided. Therefore, it contends that

documented emergency response information and the 24-hour response

telephone number are unnecessary. COSTHA also reported that many

consumer commodities are allowed to be carried as checked and carry-on

baggage without application of the emergency response communication

standards. Thus, it argues that the aggregate quantity of consumer

commodities that are carried by passengers may be considerably larger

than that carried as cargo to which the emergency response information

is required. RSPA agrees with the petitioner that the requirements to

provide emergency response information and maintain a 24-hour telephone

number are unduly burdensome for shippers of ORM-D air materials and,

thus, proposes an exception in Sec. 172.600(d) for these materials.

Section 172.604. Based on its own initiative and petitions for

rulemaking, and because the costs to implement these requirements

outweigh the benefits, RSPA proposes 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''; ``Mercury

contained in manufactured articles''; and ``Refrigerating machine''.

Since emergency responders routinely handle incidents involving

liquid petroleum distillate fuels, it is questionable that 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. Therefore, RSPA proposes to except liquid

petroleum distillate fuels from the emergency response telephone number

requirements in Sec. 172.604.

RSPA believes that the costs outweigh the benefits associated with

maintaining the 24-hour emergency response telephone number

requirements for shipments of limited quantities and the materials

described under the shipping names listed above, e.g., Engines,

internal combustion, etc. Therefore, RSPA proposes to except those

materials from the emergency response telephone number requirements of

Sec. 172.604.

In addition, based on its own initiative, RSPA proposes 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 if the following conditions are met: (1) the hours of

operation of each number are clearly identified in association with the

respective telephone number; (2) each respective telephone number is

monitored during the time indicated while the hazardous material is in

transportation; and (3) the requirements of Sec. 172.604 (a)(2),

(a)(3), and (b) are met. This proposed amendment is intended to codify

RSPA's current position on this matter.

Section 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

[[Page 6480]]

received several written and oral comments in support of decreasing the

frequency specified to train hazmat employees in accordance with

Subpart H of Part 172. Many commenters claimed that the current

requirement to train every two years is costly, difficult to

administer, and inconsistent with other training programs required

under other Federal, State and local regulations. Specifically,

commenters from the marine cargo handling industry requested that RSPA

increase the training interval to every four years for certain

longshoremen who only handle sealed containers of hazardous materials

and are not responsible for handling incidents involving the hazardous

materials. Other commenters stated that the recurrent training

requirement should be aligned to coincide with the Commercial Driver's

License renewal requirement which is generally every four years. One

commenter suggested that the interval for hazmat training coincide with

the Federal Railroad Administration requirement in 49 CFR 240.217(c)(1)

to certify engineers every three years. Some commenters requested that

RSPA require hazmat training every five years. In this NPRM, RSPA

proposes to decrease the frequency of all required hazmat training from

two years to three years. 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. 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

(see Sec. 172.702). For example, if a requirement for information on a

shipping paper changes as a result of a final rule, a hazmat employee

is required to be trained in the revised requirement as soon as the new

requirement becomes effective.

RSPA also received comments from the marine cargo handling industry

concerning the applicability of the training requirements to

``casuals'' who are longshoreman who are hired for short periods,

sometimes one day at a time. In accordance with Sec. 172.704(c), hazmat

employees must be trained within 90 days after employment. During this

90-day period, employees may perform hazmat functions only under the

direct supervision of a properly trained and knowledgeable hazmat

employee. This provision applies to a ``casual'' employed for less than

90 consecutive days by the same employer. In addition to removing

obsolete effective dates, RSPA is proposing 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's position

is that the person who is 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 for any function not properly

performed. Therefore, RSPA is proposing to add the word ``direct''

preceding the word ``supervision'' in Sec. 172.704(c)(1) and, in

Sec. 172.702(b), RSPA is adding a reference to the exceptions for

initial training found in Sec. 172.704(c)(1).

Part 173

Section 173.4. Currently, the HMR do not permit Class 2, Divisions

4.2 and 4.3 materials and hazardous materials identified in paragraph

(a)(11) to be shipped under the small quantity provisions, although

some of these materials are eligible for similar exceptions under the

ICAO Technical Instructions or an approval issued by the Associate

Administrator for Hazardous Materials Safety. For example, UN2031

(Nitric acid) is specifically listed in paragraph (a)(11) and may not

be shipped in accordance with the small quantity provisions. However,

small quantities of nitric acid are authorized under a number of

approvals to be shipped in this manner and no safety problems have been

encountered. In this notice, RSPA proposes to revise the small quantity

provisions by amending the introductory text in paragraph (a) to

authorize Divisions 4.2 and 4.3, Packing Groups II and III, materials

to be shipped in accordance with these provisions. This notice proposes

to remove paragraph (a)(11) and add a new paragraph (c) to allow small

quantities of certain categories of hazardous materials that are 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 also proposes to revise the marking

required to be displayed on packages of small quantities of hazardous

materials in paragraph (a)(10) by shortening the length of the required

statement. The proposed changes to Sec. 173.4 are intended to ease

burdens on industry and facilitate international transportation of

hazardous materials in small quantities.

Section 173.13. RSPA proposes to add a new section Sec. 173.13 that

would incorporate, 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 to be transported without their

primary or subsidiary labels. In addition, Division 4.3 materials which

meet the requirements of Sec. 173.13 would be excepted from the

placarding requirements of the HMR and Division 6.1 materials packaged

in the specified manner would be allowed to be transported with

foodstuffs.

Section 173.21. RSPA proposes to incorporate into Sec. 173.21 the

provisions of a competent authority approval for temperature-controlled

shipments. This would eliminate the requirement that all shipments

requiring temperature control must be approved by the Associate

Administrator for Hazardous Materials Safety.

Section 173.32a. RSPA proposes to remove a requirement for an

approval agency to submit an approval certificate to the Associate

Administrator for Hazardous Materials Safety. This proposed amendment

would provide relief from paperwork reporting burdens.

Section 173.155. RSPA proposes to amend Sec. 173.155 by increasing

the quantity of Class 9 liquid materials permitted in an inner

packaging from 4.0 L (1 gallon) to 5.0 L (1.3 gallons). This proposal

is consistent with the United Nations Recommendations on the Transport

of Dangerous Goods (UN Recommendations) and is intended to provide

relief and facilitate transportation of these materials in

international commerce. RSPA may consider revising other limited

quantities or providing additional limited quantity exceptions for

other hazardous materials, (e.g., Division 4.3 materials), consistent

with the UN Recommendations, in a future rulemaking action.

Section 173.171. Currently, Secs. 173.171 and 177.838(g) prescribe

requirements for smokeless powder for small arms. However,

Sec. 177.838(g) provides additional relief by permitting 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.

Section 177.838(g) should be limited to provisions that apply

specifically to motor carriers and should not contain packaging

exceptions generally available to all shippers. Therefore, RSPA

proposes to remove the

[[Page 6481]]

Sec. 177.838(g) provisions pertaining to classification and packaging

and revise Sec. 173.171 by adding the provision concerning smokeless

powder in overpacks.

In addition, one commenter requested that RSPA allow smokeless

powder that has been reclassed as a Division 4.1 material to be

transported by vessel and cargo aircraft. The commenter also requested

that smokeless powder be allowed to be reclassed as ORM-D. RSPA agrees

that the exception to reclass smokeless powder to Division 4.1 should

be extended to transportation by vessel and cargo aircraft. However, an

ORM-D exception for smokeless powder may not provide an adequate level

of safety because shipping papers would not be required for

transportation by highway, rail or vessel and there would be no

restriction on the amount of material that is permitted in air cargo

compartments. RSPA believes that the hazards posed by smokeless powder,

a Packing Group I hazardous material, necessitate hazard communication

requirements (e.g., shipping papers, labels, and placards). Therefore,

RSPA proposes to allow smokeless powder that has been reclassed as a

Division 4.1 material to be transported by vessel and cargo aircraft,

but is not adopting the commenter's proposal to allow smokeless powder

to be reclassed as an ORM-D material.

Section 173.220. RSPA received a petition for rulemaking (P-1204)

requesting an amendment to the HMR to except self-propelled vehicles

transported by vessel from the emergency response telephone number

requirements. The petitioner urged RSPA to provide this exception

because self-propelled vehicles do not pose an unreasonable risk to the

environment or the safety of personnel handling these items. RSPA

recognizes that the emergency response information required under

Sec. 172.602 provides emergency responders with the necessary

information to handle an incident involving a self-propelled vehicle.

It is questionable whether a shipper could provide emergency responders

with any additional information of value. Therefore, RSPA proposes to

amend paragraph (g)(2) in Sec. 173.220 to except shipments of self-

propelled vehicles and mechanized equipment containing internal

combustion engines, or wet batteries transported by vessel or aircraft,

from the emergency response telephone number requirements of

Sec. 172.604.

Section 173.230. Based on a commenter's request, RSPA proposes to

clarify provisions that permit the reclassification of certain Division

1.4S materials as ORM-D materials by removing Special Provision 112 in

Sec. 172.102(c)(1), relocating the provisions in Sec. 173.230(b) to

Sec. 173.63, and removing Sec. 173.230. See also preamble discussion on

proposed amendments to Secs. 172.101 and 172.102.

Part 176

Section 176.104. RSPA received a petition (P-1183), from the

Department of Defense (DOD), requesting removal of a requirement to use

a landing mat when depositing palletized packages of Division 1.1 and

1.2 (explosives) materials on deck. The petitioner states that landing

mats are cumbersome because they impede the operation of mechanized

equipment used to load and unload palletized materials. In addition,

the petitioner added that the landing mat serves no real purpose

because the pallet bottom serves as the shock absorber. RSPA agrees

with the petitioner and proposes to revise Sec. 176.104(i) to provide

relief for palletized loads of Division 1.1 and 1.2 materials.

Part 177

Section 177.801. Based on its own initiative, RSPA proposes to

revise this paragraph to include references to forbidden materials that

were previously in Sec. 177.821(c).

Section 177.818. RSPA proposes to remove this section because its

provisions are covered under the emergency response and training

provisions of the HMR.

Section 177.821. RSPA proposes to remove this section because it

duplicates other HMR provisions.

Section 177.822. RSPA proposes to remove this section because

paragraph (a) is duplicative of other provisions for explosives and

paragraph (b), including a reference to Specification MC200, is

unnecessary. Also, in Sec. 178.315, RSPA proposes to remove

Specification MC200 from the HMR. See preamble discussion of

Sec. 178.315 of this proposed rule.

Sections 177.824 and 177.834. RSPA proposes to remove Secs. 177.824

and 177.834(b) and (j) because they duplicate other HMR provisions. In

addition, in Sec. 177.834, a new paragraph (j) would be added to

consolidate provisions in 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.

Section 177.835. RSPA proposes to remove paragraphs (k), (l), and

(m) because parts 172 and 173 limit the concentration of liquid

nitroglycerin and diethylene glycol dinitrate that may be offered or

accepted for transportation. Therefore, these paragraphs are

unnecessary.

Section 177.838. The HMR prescribe specific packaging requirements

and exceptions for smokeless powder for small arms in Sec. 173.171. In

this NPRM, RSPA proposes to amend paragraph (g) by removing procedures

for reclassifying Division 1.4S materials because they are redundant

with Sec. 173.171.

Section 177.839. RSPA proposes to revise paragraph (a) by limiting

the applicability of this paragraph to nitric acid in concentrations of

50 percent or greater. In addition, in paragraph (a), the restriction

on stacking containers of nitric acid higher than two tiers and

paragraph (b) would be removed because they are outdated and

unnecessary.

Section 177.841. One commenter requested that RSPA amend

Sec. 177.841 to be consistent with provisions of Sec. 175.630. The

commenter stated that the HMR currently authorize the transport of

foodstuffs and poisons in the same aircraft, provided the materials are

loaded into separate unit load devices that are not adjacent to each

other, or into closed unit load devices. The commenter asserted that if

this practice is authorized in air transportation, it should be

authorized in highway transportation. RSPA agrees with the commenter

that foodstuffs which are loaded in a closed unit load device should be

allowed to be transported in the same motor vehicle with poisons that

are loaded in a separate closed unit load device. However, pending

further review of the impact on safety, RSPA is not proposing to allow

foodstuffs and poisons to be in the same motor vehicle when they are

loaded into separate open unit load devices. In addition, RSPA proposes

to remove 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.

Section 177.848. RSPA proposes to amend paragraph (e)(5) by

revising the definition of footnote ``A'' to the segregation and

separation table to clarify that ammonium nitrate, Division 5.1,

UN1942, may be loaded in the same transport vehicle with Divisions 1.1

and 1.5 materials.

Part 178

Section 178.315. RSPA proposes to remove Specification MC200

requirements from the HMR because

[[Page 6482]]

RSPA believes that this container is no longer utilized in hazardous

materials service. RSPA invites comments on whether the MC200

containers still exist.

III. Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule is not considered a significant regulatory

action under section 3(f) of Executive Order 12866 and 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 minimal to the extent that the preparation of a regulatory

evaluation is not warranted.

Executive Order 12612

This proposed 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 proposed rule would

clarify and provide relief from certain regulations governing the

transportation of hazardous materials. RSPA solicits comments on

whether the proposed rule would have any effect on State, local or

Indian tribe requirements and, if so, the most appropriate effective

date of Federal preemption. Because RSPA lacks discretion in this area,

preparation of a federalism assessment is not warranted.

Regulatory Flexibility Act

I certify that this proposed rule will not have a significant

economic impact on a substantial number of small entities. This

proposed rule does not impose any new requirements on persons subject

to the HMR.

Paperwork Reduction Act

This proposed rule does not propose any new information collection

requirements.

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, 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, 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.

49 CFR Part 178

Hazardous materials transportation, Packaging and containers,

Reporting and recordkeeping requirements.

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

177, and 178 would be amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 would continue to read as

follows:

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

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

would be amended by removing the word ``nor'' at the end of the

paragraph, paragraph (d)(3) would be redesignated as paragraph (d)(4),

and a new paragraph (d)(3) would be 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 packagings

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 COMMUNICATION, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

3. The authority citation for part 172 would continue 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

changes would be made:

a. 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'' would be removed.

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

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

[[Page 6483]]

weapons, inert projectile, or Cartridges, small arms, UN0012''; and

``Cartridges, power device, UN0323'', in Column (8A), the wording

``None'' would be revised to read ``63''.

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

wording ``230'' would be revised to read ``63''.

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

Ethyl alcohol solutions'', in Column (7), the wording ``24,'' would be

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

wording ``24,'' would be added immediately preceding ``B1'' in Packing

Group III.

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

less), NA3178'', in Column (9B), the wording ``Forbidden'' would be

revised to read ``7.3 kg''.

Sec. 172.102 [Amended]

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

would be removed.

6. In Sec. 172.201, paragraph (d) would be 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) would be 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 shall be entered in parentheses in

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

more hazardous substances, at least two hazardous substances must be

identified. For a hazardous waste, the waste code, if appropriate, may

be used to identify the hazardous substance.

* * * * *

Sec. 172.203 [Amended]

8. In addition, in Sec. 172.203, the following changes would be

made:

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

section'' would be removed.

b. Paragraph (e)(3) would be removed.

9. In Sec. 172.316, the first sentence of paragraph (a) would be

revised to read as follows:

Sec. 172.316 Packagings containing materials classed as ORM-D.

(a) Each non-bulk packaging containing a material classed as ORM-D

must be marked on at least one side or end with the ORM-D designation,

immediately following or below the proper shipping name of the material

or labeled with the CLASS 9 label (see Sec. 172.446). * * *

* * * * *

Sec. 172.316 [Amended]

10. In addition, in Sec. 172.316, in paragraph (c), the wording

``marking ORM-D'' would be removed and replaced with ``marking ORM-D or

labeling with the CLASS 9 label''.

11. In Sec. 172.324, paragraph (a) would be 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 for 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 must be identified. For a hazardous

waste, the waste code, if appropriate, may be used to identify the

hazardous substance.

* * * * *

12. In Sec. 172.402, paragraph (d) would be revised to read as

follows:

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.

* * * * *

13. In Sec. 172.500, paragraphs (b)(4) and (b)(5) would be

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

paragraph (b)(4) would be added to read as follows:

Sec. 172.500 Applicability of placarding requirements.

* * * * *

(b) * * *

(4) Small quantities of Division 4.3 materials prepared in

accordance with Sec. 173.13 of this subchapter;

* * * * *

14. In Sec. 172.600, paragraph (d) would be 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.

15. In Sec. 172.604, new paragraphs (c) and (d) would be added to

read as follows:

Sec. 172.604 Emergency response telephone number.

* * * * *

(c) A person may list more than one emergency response telephone

number with different hours of operation provided that--

(1) The hours of operation of each number are clearly identified in

association with the respective telephone number;

(2) Each respective telephone number is monitored during the time

indicated while the hazardous material is in transportation; and

(3) The requirements in paragraphs (a)(2), (a)(3), and (b) of this

section are met.

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

(1) Hazardous materials that are offered for transportation under

the provisions applicable to limited quantities;

(2) Liquid petroleum distillate fuels; and

(3) 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'', ``Mercury contained in manufactured articles'',

``Refrigerating machine''.

Sec. 172.702 [Amended]

16. In Sec. 172.702(b), the phrase ``A hazmat employee'' is removed

and replaced with the phrase, ``Except as

[[Page 6484]]

provided in Sec. 172.704(c)(1), a hazmat employee''.

16a. In Sec. 172.704, paragraphs (c)(1) and (c)(2) would be 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.

* * * * *

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

PACKAGINGS

17. The authority citation for part 173 would continue to read as

follows:

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

18. In Sec. 173.4, the section heading would be revised, paragraph

(a)(11) would be removed, paragraph (a) introductory text, paragraphs

(a)(9) and (a)(10) would be revised, and a new paragraph (c) would be

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.

* * * * *

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

4.3 (PG I) conforming to paragraphs (a)(1) through (a)(10) of this

section may be shipped if specifically approved by the Associate

Administrator for Hazardous Materials Safety.

19. Section 173.13 would be 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 Class 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 requirements of this subchapter

if prepared for transportation in accordance with the requirements of

this section. In addition, materials in Division 4.3 are excepted from

the placarding requirements of this subchapter when prepared 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 or rail car only.

(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 (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, rigid can.

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

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

(iv) The rigid can must then be placed inside a securely closed,

outer packaging conforming to Sec. 173.201.

(v) Not more than four cans 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 inside an

outer packaging conforming to Sec. 173.201.

(iv) Not more than four bags are permitted in an outer packaging.

20. In Sec. 173.21, paragraph (f)(3) would be 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 paragraph (f) of this

section 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 transport vehicle, freight container, or

motor vehicle at or below the control temperature required for the

material during transportation.

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

paragraph (f) of this section must be loaded and maintained at or below

the control temperature required for the material. The temperature of

the material shall be measured and entered on a written record at the

time the packaging is filled.

(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 must 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

[[Page 6485]]

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).

* * * * *

21. In Sec. 173.32a, paragraph (c) would be 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]

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

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

23. In Sec. 173.171, the introductory text and paragraph (b) would

be revised and a new paragraph (d) would be 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 must 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

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).

24. In Sec. 173.220, paragraph (g)(2) would be 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]

25. Paragraph (b) of Sec. 173.230 would be redesignated as

paragraph (b) of Sec. 173.63 and Sec. 173.230 would be removed.

PART 176--CARRIAGE BY VESSEL

26. The authority citation for part 176 would continue to read as

follows:

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

27. In Sec. 176.104, the first sentence of paragraph (i) would be

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

28. The authority citation for part 177 would continue to read as

follows:

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

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

29. Sections 177.818, 177.821, 177.822, and 177.824 would be

removed.

30. Section 177.801 would be 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.

31. In Sec. 177.834, paragraph (b) would be removed and reserved,

and paragraph (j) would be 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]

32. In Sec. 177.835, paragraphs (k), (l), and (m) would be removed.

Sec. 177.837 [Amended]

33. In Sec. 177.837, paragraph (d) would be removed.

34. In Sec. 177.838, paragraph (g) would be 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''.

* * * * *

35. Section 177.839 would be 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 not be loaded above

[[Page 6486]]

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.

36. In Sec. 177.841, paragraph (d) would be removed and reserved

and paragraph (e)(1) would be 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:

(i) The poisonous material is packaged in accordance with this

subchapter and is overpacked in a metal drum as specified in

Sec. 173.25(c) of this subchapter; or

(ii) The poisonous material is packaged in accordance with this

subchapter and 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]

37-38. In Sec. 177.848, paragraph (e)(5), would be amended by

removing the phrase ``ammonium nitrate fertilizer'' and replace it with

the phrase ``ammonium nitrate (UN 1942) and ammonium nitrate

fertilizer''.

PART 178--SPECIFICATIONS FOR PACKAGINGS

39. The authority citation for part 178 would continue to read as

follows:

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]

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

and 178.315-5 would be removed.

Issued in Washington, DC on February 12, 1996, under authority

delegated in 49 CFR Part 106.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 96-3555 Filed 2-16-96; 8:45 am]

BILLING CODE 4910-60-P