Transportation of Hazardous Materials; Miscellaneous Amendments

SUMMARY: This final rule amends the Hazardous Materials Regulations

(HMR) by incorporating miscellaneous changes based on petitions for

rulemaking and RSPA initiative. This action is necessary to improve

safety and to respond to petitions for rulemaking. The intended effect

of these regulatory changes is to update, clarify or provide relief

from certain regulatory requirements.

DATES: Effective: The effective date of these amendments is October 1,

1998.

Compliance: Compliance with the regulations, as amended herein, is

authorized after August 24, 1998.

Incorporation by reference: The incorporation by reference of a

publication listed in this final rule is approved by the Director of

the Federal Register as of October 1, 1998.

FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous

Materials Standards, Research and Special Programs Administration, U.S.

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20590-0001, telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

On March 4, 1995, the President directed Federal agencies to

perform an extensive review of all agency regulations and eliminate or

revise those requirements that are outdated or in need of reform. This

final rule is consistent with the goals of the President's Regulatory

Reinvention Initiative. In a continuing effort to review the HMR for

necessary revisions, RSPA is eliminating, revising, clarifying and

relaxing certain regulatory requirements in this final rule. On

September 24, 1997, RSPA issued a notice of proposed rulemaking (NPRM)

under Docket RSPA-97-2905 (HM-166Y) (62 FR 50222). The NPRM proposed a

number of miscellaneous changes to the HMR, designed primarily to

reduce regulatory burdens on industry by incorporating changes into the

HMR based on RSPA's own initiative and petitions for rulemaking,

submitted in accordance with 49 CFR 106.31. The NPRM contained

information concerning each proposal and invited public comment.

Readers should refer to the NPRM for additional background discussion.

RSPA received about 20 comments in response to the NPRM. These

comments were submitted by representatives of trade associations,

hazardous materials consulting firms, chemical manufacturers, a testing

and manufacturing laboratory and an air carrier. The commenters

expressed support for various proposals, but several raised concerns

about certain provisions in the proposals that are discussed below. One

commenter requested amendments to the HMR other than those proposed as

part of this initiative; the commenter's letter was accepted as a

petition for rulemaking under 49 CFR 106.31.

II. Summary of Regulatory Changes by Section

The following is a section-by-section summary of changes and, where

applicable, a discussion of comments received.

Part 171

Section 171.7

Based on a petition for rulemaking from the Association of American

Railroads (AAR) (P-1315), RSPA proposed to update the incorporation by

reference of the AAR manual, ``AAR Manual of Standards and Recommended

Practices, Section C-Part III, Specifications for Tank Cars,

Specification M-1002,'' from the 1992 edition to the 1996 edition. RSPA

and the Federal Railroad Administration (FRA) reviewed the referenced

requirements in the 1996 manual and agree that the changes will enhance

public safety. Therefore, RSPA is incorporating the 1996 edition by

reference.

However, Sec. 173.31(b)(5) provides for tank cars modified with

bottom discontinuity protection before July 1, 1996, to conform to the

requirements of Appendix Y of the 1992 edition of the AAR manual.

Appendix Y of the 1996 edition of the AAR manual is under review by an

industry task group, of which FRA is a member, and will be revised when

the group's task is complete. Until completion of that review, RSPA

also is retaining its incorporation by reference of the 1992 edition

with a corresponding reference to Sec. 173.31.

Section 171.8

In the NPRM, RSPA proposed to add a definition for ``self-defense

spray'' to correspond with the proposed new entry, ``Self-defense

sprays, non-pressurized, containing not more than 2 percent tear gas

substances,'' Class 9, that would be added in the Sec. 172.101

Hazardous Materials Table (HMT). Two commenters suggested that RSPA add

descriptive information in the definition. The Air Line Pilots

Association (ALPA) suggested adding, as an example, the commonly used

term, ``pepper spray,'' as part of the definition. The other commenter,

the Association of Defense Spray Manufacturers (ADSM) suggested that

RSPA either add the words ``containing not more than two percent tear

gas or ten percent oleoresin capsicum'' in the proposed definition or

consider capsaicin (the primary capsaicinoid present in oleoresin

capsicum) to be a tear gas substance and disregard the percentage of

oleoresin capsicum. ADSM stated that not all pepper sprays list the

capsicum content on the label and some sprays are labeled as a higher

percentage active ingredient. Although oleoresin capsicum is the active

ingredient in pepper sprays, RSPA is concerned that limiting the

definition or shipping description to oleoresin capsicum would exclude

other active ingredients that may be under development for use in self-

defense sprays in the future. Therefore, RSPA is revising the

definition to state that for self-defense sprays the two percent by

mass limitation applies only to tear gas substances (such as

chloroacetephenone), but not to other sprays such as (pepper sprays).

The definition of ``Marine pollutant'' is revised by adding a

reference to Sec. 171.4, which contains certain exceptions for marine

pollutants. Adding the reference responds to a petitioner (P-1256) who

stated that these exceptions are often overlooked.

Section 171.18

Section 171.18 is amended to remove an obsolete section concerning

registrations filed with the Bureau of Explosives (BOE).

Section 171.19

RSPA is revising Sec. 171.19 by terminating all remaining BOE

approvals, other than those made under approval provisions in Part 179.

The majority of BOE approvals have been converted to approvals issued

by the Associate Administrator for Hazardous Materials Safety (AAHMS).

RSPA believes that any remaining BOE

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approvals, other than those applying to Part 179 requirements, are

obsolete. Any person holding a BOE approval who is affected by this

termination may apply for a new approval by the AAHMS.

Part 172

Section 172.101

RSPA is adding three new entries and revising eight existing

entries to the HMT.

The three new entries are ``Pepper spray, see Aerosols, etc. or

Self-defense spray, non-pressurized,'' ``Self-defense spray, see

Aerosols,etc.'' and ``Self-defense spray, non-pressurized.'' Because

``not more than two percent by mass of a tear gas substance'' is

specified in the definition of ``self-defense spray,'' the phrase is

not needed as part of the proper shipping names and RSPA is removing it

from the proper shipping names in this final rule. These entries

clarify that both the aerosol and non-aerosol self-defense sprays are

subject to the regulations. Related changes are made to Sec. 171.8 by

adding a definition of ``self-defense spray,'' to Sec. 172.102 by

adding a new special provision A37 for the entry, ``Self-defense spray,

non-pressurized,'' and to Sec. 175.10.

The entries, ``Corrosive solids, water-reactive, n.o.s.'' (UN3096)

and ``Water-reactive solid, corrosive, n.o.s.'' (UN3131) are corrected

by removing Special Provision 128 for Packing Groups II and III. For

the entry, ``Aluminum smelting by-products or Aluminum remelting by-

products'' (UN3170), Special Provision 128, containing a hazard

communication requirement, is added for Packing Groups II and III.

The entry, ``Detonators, non-electric for blasting,'' UN0455 in

Column (8A), is corrected by removing the erroneous reference ``none''

in the packaging exceptions column to read ``63(f), 63(g).''

RSPA proposed to amend the entry ``Trifluoroacetyl chloride'' by

adding Special Provision ``B7'' to Column (7), in response to a

petition for rulemaking (P-1254). Special Provision B7 states that

safety relief devices are not authorized on multi-unit tank car tanks.

The openings for the safety relief devices must be plugged or blank

flanged. After publication of the NPRM, another petitioner (P-1329)

requested that RSPA add Special Provision B7 for the entries,

``Dimethylhydrazine, unsymmetrical,'' ``Hydrazine, anhydrous or

Hydrazine aqueous solutions with more than 64 percent hydrazine, by

mass.'' and ``Methylhydrazine.'' The petitioner stated that it is the

sole producer of these materials and pointed out that safe shipping

experience has been established through DOT exemptions, DOT-E 11200 and

DOT-E 11490, which authorize the shipment of hydrazine materials in

multi-unit tank car tanks without relief devices. The petitioner also

sponsored a risk analysis that focused on the transportation of

propellants that are toxic and the risks associated with those

materials when transported in multi-unit tank car tanks equipped with

or without safety relief devices. The results of the analysis

determined that there is an increased likelihood of the release of

toxic materials when a relief device is present. The petitioner

submitted similar comments in response to the NPRM. RSPA has studied

the risk analysis prepared by the University of Central Florida and

finds it to be credible. RSPA also has determined that the three

additional materials described on the petition are similar in nature to

``Trifluoroacetyl chloride.'' Because of the safe shipping history of

the hydrazine products in multi-unit tank car tanks without relief

devices under the exemptions, their similarity to ``Trifluoroacetyl

chloride,'' and the analysis's conclusions that these materials can be

safely shipped in multi-unit tank car tanks without relief devices,

RSPA agrees with the petitioner that these materials warrant the same

provision as for ``Trifluoroacetyl chloride.'' Therefore, the four

entries, ``Trifluoroacetyl chloride,'' ``Dimethylhydrazine,

unsymmetrical,'' ``Hydrazine, anhydrous `` and ``Methylhydrazine'' are

amended by adding Special Provision ``B7.''

Section 172.102

Special Provision 128 is corrected to provide that aluminum

smelting by-products and aluminum remelting by-products meeting the

definition of Class 8, Packing Groups II and III may also be classified

in Division 4.3 and transported under ``Aluminum smelting by-products

or Aluminum remelting by-products.'' An editorial revision is also made

to the special provision to clarify that, when classified as Division

4.3, the Class 8 must be communicated as a subsidiary risk hazard.

Section 173.32c

RSPA is revising paragraph (j) to allow monolithic (non-flowable)

solid materials to be loaded into IM portable tanks to a filling

density of less than 80 percent by volume. Paragraph (j) currently

specifies that an IM portable tank, or compartment thereof, having a

volume greater than 7,500 liters may not be loaded to a filling density

less than 80 percent by volume. The former requirement was intended to

cover liquid and flowable solid hazardous materials in order to

minimize the risk of accidents resulting from the sloshing and shifting

of the center of gravity. A monolithic solid material which conforms to

the tank geometry, such that the shifting of the center of gravity is

not possible, can be safely transported in an IM portable tank at a

filling density of less than 80 percent by volume.

In addition, a new sentence is added to paragraph (m) which

contains the reference to Sec. 177.834(h) for unloading of an IM

portable tank.

Section 173.40

Paragraph (d)(1) is revised to clarify that a strong outside box,

used to provide protection for a thin-walled cylinder or a cylinder

equipped with a valve, does not need to be made to a specific UN

standard. This change is consistent with similar provisions in

Sec. 173.301(g)(2) and (k) that permit a non-specification box to be

used for protection of the cylinder or valve.

Section 173.56

In the NPRM, RSPA proposed to broaden the provisions in

Sec. 173.56(b)(1) for persons who receive approval to examine and

assign recommended shipping names, divisions and compatibility groups

for new explosives. The proposal stated that the person applying for

the approval must meet the following criteria: (1) Is not be controlled

by, or financially dependent upon, any entity that manufactures or

markets explosives; (2) Does not perform any type of work in the

explosives industry other than testing for determination of hazard

class or performance; (3) Either has, or employs a person who has, at

least ten years' experience in the examination, testing and evaluation

of explosives; and (4) Is a resident of the United States.

One commenter contended that the proposed criterion to exclude

explosives manufacturers was overly restrictive and stated that

provisions should be similar to those in Sec. 173.56(j), which allows

manufacturers of Class 1.4 fireworks to classify their own items.

However, another commenter stated that the proposed criterion should be

more restrictive, stating that the criterion would permit the approval

of too many persons and, thereby, render the activity economically

infeasible.

RSPA disagrees with both commenters. First, under Sec. 173.56(j),

fireworks manufacturers are permitted to classify their own items

provided the

[[Page 37456]]

items' chemical compositions conform to the parameters prescribed in

the American Pyrotechnics Association's (APA) Standard for Construction

of Fireworks. These chemical compositions identified in the APA

standard have been used for over 50 years and their safety and

stability are well known. They also have a proven transportation safety

record. A similar situation does not apply to other types of

explosives. Second, the proposed criterion provides for the approval of

persons who have the prescribed experience in the examination, testing

and evaluation of explosives. RSPA does not believe a limitation on the

number of qualified persons who are approved to perform this function

should be imposed by RSPA. Therefore, RSPA is adopting the provisions

as proposed.

Also, as proposed in the NPRM, RSPA is revising paragraph (i) to

provide for RSPA to classify a material or device without a prior

examination when adequate data is available.

Section 173.156

RSPA is revising paragraph (b)(1) to clarify that the package

markings specified in subpart D of part 172 do not apply to cages,

carts, boxes or similar overpacks containing ORM-D materials that are

offered for transportation or transported according to

Sec. 173.156(b)(1).

Section 173.308.

RSPA is revising paragraph (b) to clarify that when transporting up

to 1,500 cigarette lighters on one motor vehicle by highway, the only

part 172 provisions that do not apply are the hazard communication

requirements in subparts C through G (i.e., shipping papers, marking,

labeling, placarding, emergency response information) and the training

requirements in subpart H. Special Provision N10 applies. RSPA also is

revising paragraph (b) to require that the outer packaging be marked to

identify the total number of devices contained in the package.

Section 173.469

In paragraph (a)(4)(i), the value of 1.3 x 10 -24 is

amended to read 1.3 x 10 -4 in order to correct a printing

error.

Part 175

Section 175.10

RSPA proposed to permit one self-defense device, not exceeding 118

ml (4 fluid ounces), per passenger, in checked baggage, provided the

device incorporates a positive means to prevent accidental discharge.

The Air Line Pilots Association (ALPA) supported the proposal to

regulate self-defense spray devices but stated: ``We also re-affirm our

opposition to hazardous material items that are considered weapons of

self-defense to be carried by passengers on their person, placed in

carry-on baggage, or placed in checked baggage. We maintain this

position, in part, because these items could potentially be used in a

threatening manner and subsequent release that would be debilitating to

the passengers and crew. Additionally, our concern includes that there

is no way to inspect or determine, prior to a release or incident, if

the positive means (safety device) referenced in new [proposed]

paragraph Sec. 175.10(a)(4)(ii) is operable and in place to prevent

accidental discharge and release of the contents, specifically with

reference to the aerosols.''

In a few cases, self-defense sprays have been discovered in

passengers' carry-on luggage after the devices were accidentally

initiated. These situations were effectively mitigated by flight crews

and investigated by Federal Aviation Administration (FAA) personnel.

FAA is unaware of any reported cases of self-defense sprays, packed in

checked baggage, initiating in flight and causing discomfort to

passengers or crew. Therefore, RSPA is revising paragraph (a)(4) to

clarify that all types of self-defense sprays are prohibited from being

transported by air in a passenger compartment, either on one's person

or in carry-on baggage. However, RSPA is permitting one self-defense

device to be carried in checked baggage.

An air carrier expressed its support for the proposal but stated

that it had a general concern that RSPA's statement in the preamble

discussion to the Sec. 172.101 HMT in the NPRM, characterizing mace and

pepper sprays as a ``deadly or dangerous weapon,'' could be

misconstrued. The air carrier requested that RSPA clarify that the

responsibility of the air carrier is to post warning signs, such as

required by proposed Sec. 175.25, or otherwise notify the passenger of

the regulations, and not to conduct questioning of passengers or

searching of baggage for these items. RSPA did not intend in the

preamble of the NPRM to imply that air carriers or airport personnel

would be required to implement additional controls to screen each

passenger or each passenger's baggage.

In addition, this section is revised to clarify that the quantity

limits in paragraphs (a)(4)(i) and (a)(4)(ii) apply to both medicinal

and toilet articles and to Division 2.2 aerosols for sporting or home

use. This section also is editorially revised to make it easier to read

and use.

Section 175.25

Paragraph (a) requires that aircraft operators display notices

warning passengers against carrying undeclared hazardous materials

aboard aircraft, in either their luggage or on their persons. As

proposed in the NPRM, RSPA is revising the language used in the notice

to reflect changes in the statutory citation and penalties. A new

paragraph (a) is added to allow aircraft operators to display existing

notices containing the obsolete language until January 1, 2002.

In addition, based on RSPA and FAA initiative, RSPA is making four

other non-substantive changes that provide greater carrier flexibility.

First, the introductory language to paragraph (a)(1) is revised to

read: ``At a minimum, each notice must communicate the following

information:''. Second, the wording in current paragraph (a)(3) is

revised to permit additional information, examples, or illustration, if

not inconsistent with the required wording. These changes are

consistent with the introductory language in Sec. 175.26(a) and permit

the specified information to be conveyed to the public while leaving

the format for presenting the information, such as the use of graphics,

to air carriers' discretion. Third, paragraph (a)(2)(i) is revised to

permit posters displayed by U.S. air carriers to have information

printed in other languages, in addition to the required English. This

wording facilitates communication of the required information to non-

English speaking passengers and is consistent with Sec. 175.26(b)(1).

Fourth, paragraph (a)(2)(ii) is revised to require that the lettering

for only the first paragraph of the notice be at least 0.4 inch in

height and the lettering for all other paragraphs be at least 0.2 inch

in height. The reduction of the lettering size will allow more space

for other information, such as graphics.

Finally, as proposed, the quantity limit reference also is

corrected for medicinal and toilet articles carried in a passenger's

luggage to read 70 ounces for consistency with the exception provided

in Sec. 175.10(a)(4)(i).

Section 175.26

This section requires each person who engages in the acceptance or

transport of cargo for transportation by aircraft to display a notice,

to persons offering such cargo, of the applicable requirements for

hazardous materials aboard aircraft. RSPA is amending the wording

required in the notice to state that a violation can result in five

years' imprisonment and penalties of $250,000

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or more (49 U.S.C. 5124). In addition, a new paragraph (a)(4) is added

to allow each person who accepts or transports cargo for transportation

by aircraft to display existing notices containing the obsolete

language until January 1, 2002.

Part 177

Section 177.834

RSPA proposed to relax a provision in paragraph (h) to permit an IM

portable tank to be unloaded while remaining on a transport vehicle

with the power unit attached, provided the tank meets the outlet

requirements in Sec. 178.345-11 and is attended during the unloading,

as currently required for cargo tank motor vehicles under

Sec. 177.834(i). Section 178.345-11(b)(1)(iii) provides that the remote

means of closure for the stop valve on a cargo tank must be capable of

thermal activation when required by Part 173 for materials which are

flammable, pyrophoric, oxidizing, or poisonous liquids. Three

commenters stated that many IM portable tanks are not fitted with

outlet valves meeting this requirement. They stated that RSPA should

allow sufficient time for valve manufacturers to develop a valve system

that works with a fusible link for installation on new IM portable

tanks and that all existing IM portable tanks should be excepted from

the valve requirement. One of the commenters, the Chemical

Manufacturers Association, stated that the redesign of a proven cargo

handling system and the retrofit of existing portable tanks to provide

for thermal activation capability would be both expensive and

disruptive of commerce because tanks would have to be removed from

service.

RSPA disagrees with the commenters. The tank outlets are required

to be equipped with this feature to ensure that the valve closes in a

fire situation. Cargo tanks have been required to have this feature for

many years. RSPA believes that when an IM portable tank is used in the

same manner as a cargo tank it should have the same level of safety in

the event the operator cannot manually operate the closure. RSPA

received no comments on the proposal from valve manufacturers.

A fourth commenter, the National Tank Truck Carriers, Inc. (NTTC),

stated that the proposed amendment will increase the use of IM portable

tanks for transporting hazardous materials, nationwide. Therefore, IM

portable tanks, when operating as cargo tanks, should be subject to all

safety requirements paralleling those of traditional cargo tank motor

vehicles, including emergency shut-down equipment, fusible and/or

frangible device, etc., and, in addition, the requalification

requirements contained in Part 180.

NTTC also stated that RSPA should specify the types of motor

vehicle chassis, or securement devices, to use for IM portable tanks.

NTTC stated that, with the types of trailers ranging from special

``container only'' chassis to equipment, such as, so-called ``goose-

neck'' trailers, drop frame trailers and the conventional ``flat bed''

units, container securement is not adequately addressed in the Federal

Motor Carrier Safety Regulations (49 CFR 393.100 et. seq.).

RSPA disagrees with NTTC that these IM portable tanks should meet

the cargo tank requalification requirements in subpart E of Part 180

and that additional securements should apply to them. RSPA received no

specific data indicating that the current requirements are inadequate.

RSPA will continue to monitor the transportation experience of these

tanks to determine if there may be a need to revise the securement

requirements in a future rulemaking action.

Several commenters stated that the proposal to permit on-vehicle

unloading of IM portable tanks should also apply to loading and pointed

out RSPA's comment in the preamble that ``portable tanks are not

intended to be filled or emptied while attached to a transport vehicle

or a ship during transportation.'' The statement in the NPRM was in

error. RSPA intended to say that portable tanks may not be emptied

while remaining on a transport vehicle with the motive power attached

during transportation. The restriction contained in the next-to-last

sentence of current paragraph (h) does not apply to loading. Therefore,

the comments are beyond the scope of this rulemaking.

Another commenter stated that the cargo tank attendance rule in

paragraph (i)(3) is ``onerous and perhaps outmoded'' and should be

revised to provide exceptions for cargo tanks loaded or unloaded inside

plant facilities without public access. The need, if any, for changes

to attendance requirements are beyond the scope of this rulemaking.

Finally, a commenter requested that the proposal be broadened to

include all bulk packagings and that the definition of a cargo tank, in

Sec. 171.8, be amended to include an intermediate bulk container (IBC).

RSPA may address other bulk packagings in a future rulemaking action. A

proposal to amend the definition of a cargo tank is being considered

under Docket HM-213.

In conclusion, as proposed in the NPRM, RSPA is permitting IM

portable tanks to be unloaded without being removed from the motor

vehicle if the outlet requirements in Sec. 178.345-11 and the

Sec. 178.337-11 and attendance requirements are met.

Section 177.848

In paragraph (f), the Compatibility Table for Class 1 (Explosive)

Materials is revised to clarify that Groups B and D are not compatible.

However, a domestic exception (4) is allowed for Detonators when they

are transported in accordance with the restrictions in Sec. 177.835(g).

To avoid the possibility of incompatible explosives being transported

together, RSPA is clarifying the restriction by replacing the entry

``4'' with the entry ``X(4)''.

Part 178

Section 178.65

Paragraph (i)(2)(viii)(A) is revised to update the citation ``49

U.S.C. 1809'' to read ``49 U.S.C. 5124.''

Sections 178.352 through 178.364

Several specification packaging requirements for radioactive

materials contain obsolete section references. RSPA is updating these

section references in this final rule.

Part 180

Section 180.405

RSPA is revising paragraph (c)(1) to recognize that the date marked

on certain older cargo tanks was the date initial construction began

rather than the date construction was completed. This action more

precisely grandfathers cargo tanks in a manner consistent with former

Sec. 173.33(b)(1) (in effect prior to December 31, 1990), which read:

``A cargo tank of the specification listed in Column 1 may be used when

authorized in this part, provided the tank construction began before

the date in Column 2.'' This provision applied to MC 300, 301, 302,

303, 304, 305, 310, 311 and 330 cargo tank motor vehicles.

Finally, paragraph (f) is revised to allow the continued use of a

cargo tank equipped with a self-closing system before September 1,

1993, but remarked and certified after that date.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule is not considered a significant regulatory

action under section 3(f) of Executive Order 12866 and, therefore, was

not reviewed by the Office of Management and Budget. This rule is not

significant under the Regulatory Policies and Procedures of

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the Department of Transportation (44 FR 11034).

The costs and benefits asociated with this final rule are

considered to be so minimal as to not warrant preparation of a

regulatory impact analysis or regulatory evaluation.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

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

Federal law expressly preempts State, local, and Indian tribe

requirements applicable to the transportation of hazardous material

that cover certain subjects and are not substantively the same as the

Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:

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

material;

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

placarding of hazardous material;

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

pertaining to hazardous material and requirements respecting the

number, content, and placement of those documents;

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

unintentional release in transportation of hazardous material; or

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

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

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

transportation of hazardous material.

This final rule concerns the classification, packaging, marking,

labeling, and handling of hazardous material, among other covered

subjects.

This final rule would preempt any State, local, or Indian tribe

requirements concerning these subjects unless the non-Federal

requirements are ``substantively the same'' (see 49 CFR 107.202(d)) as

the Federal requirements.

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

regulation concerning any of the covered subjects after November 16,

1990, DOT must determine and publish in the Federal Register the

effective date of Federal preemption. That effective date may not be

earlier than the 90th day following the date of issuance of the final

rule and not later than two years after the date of issuance.

C. Regulatory Flexibility Act

This final rule would amend miscellaneous provisions in the HMR,

generally to clarify those provisions and to relax requirements that

are overly burdensome. The proposed changes in this rule are generally

intended to provide relief to shippers, carriers, and packaging

manufacturers, some of whom are small entities (for example, small

businesses, governmental jurisdictions and not-for-profit

organizations). The costs and benefits associated with this proposed

rule are considered to be so minimal as to not warrant preparation of a

regulatory impact analysis or regulatory evaluation. Small incremental

cost increases are associated with updating the hazardous materials

information shown on airport signs in Secs. 175.25 and 175.26. A

delayed compliance date of January 1, 2002, is provided for displaying

the notices to allow for a sufficient transition period. Therefore, I

certify that this proposal will not, if promulgated, have a significant

economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, no person is required to

respond to a collection of information unless it displays a valid OMB

control number. This final rule does not propose any new information

collection burdens. Information collection requirements addressing the

approval of explosives in Sec. 173.56 are currently approved under OMB

approval number 2137-0557. This approval expires July 31, 1999.

E. Regulation Identifier Number (RIN)

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

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

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

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

Unified Agenda.

F. Unfunded Mandates Reform Act

This final rule does not impose unfunded mandates under the

Unfunded Mandates Reform Act of 1995. It does not result in costs of

$100 million or more to either State, local, or tribal governments, in

the aggregate, or to the private sector, and is the least burdensome

alternative that achieves the objective of the rule.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Incorporation by reference, Reporting and recordkeeping

requirements.

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labels,

Markings, Packaging and containers, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation, Packaging and containers,

Radioactive materials, Reporting and recordkeeping requirements,

Uranium.

49 CFR Part 175

Air carriers, Hazardous materials transportation, Radioactive

materials, Reporting and recordkeeping requirements.

49 CFR Part 177

Hazardous materials transportation, Motor carriers, Radioactive

materials, Reporting and recordkeeping requirements.

49 CFR Part 178

Hazardous materials transportation, Motor vehicle safety, Packaging

and containers, Reporting and recordkeeping requirements.

49 CFR Part 180

Hazardous materials transportation, Motor carriers, Motor vehicle

safety, Packaging and containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49 CFR chapter I is amended as

follows:

PART 171--GENERAL INFORMATION, REGULATIONS AND DEFINITIONS

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

follows:

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

2. In the Sec. 171.7(a)(3) Table, under the entry ``Association of

American Railroads'', a new entry is added in appropriate alphabetical

order to read as follows:

Sec. 171.7 Reference material.

(a) Matter incorporated by reference. * * *

(3) Table of material incorporated by reference. * * *

[[Page 37459]]

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

Source and name of material 49 CFR reference

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

* * * *

* * *

Association of American Railroads,

* * * *

* * *

AAR Manual of Standards and Recommended 174.63; 179.6; 179.7; 179.12;

Practices, Section C--Part III, 179.15; 179.16; 179.20;

Specifications for Tank Cars, 179.22; 179.100; 179.101;

Specification M-1002, September 1996. 179.102; 179.103; 179.200;

179.201; 179.220; 179.300;

179.400; 180.509; 180.513;

180.515; 180.517.

* * * *

* * *

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

* * * * *

Sec. 171.7 [Amended]

3. In addition, in the Sec. 171.7(a)(3) Table, under the entry

``Association of American Railroads'', for the entry ``AAR Manual of

Standards and Recommended Practices, Section C--Part III,

Specifications for Tank Cars, Specification M-1002, September 1992'',

in the second column, the existing section references are removed and a

new reference ``173.31'' is added in their place.

4. In Sec. 171.8, the following definition is added in the

appropriate alphabetical order to read as follows:

Sec. 171.8 Definitions and abbreviations.

* * * * *

Self-defense spray means an aerosol or non-pressurized device that:

(1) Is intended to have an irritating or incapacitating effect on a

person or animal; and

(2) Meets no hazard criteria other than for Class 9 (for example, a

pepper spray; see Sec. 173.140(a) of this subchapter) and, for an

aerosol, Division 2.1 or 2.2 (see Sec. 173.115 of this subchapter),

except that it may contain not more than two percent by mass of a tear

gas substance (e.g., chloroacetophenone (CN) or 0-

chlorobenzylmalonitrile (CS); see Sec. 173.132(a)(2) of this

subchapter.)

* * * * *

Sec. 171.8 [Amended]

5. In addition, in Sec. 171.8, for the definition ``Marine

pollutant'', in the first sentence, the wording ``this subchapter

and,'' is removed and ``this subchapter (also see Sec. 171.4) and,'' is

added in its place.

Sec. 171.18 [Removed and Reserved]

6. Section 171.18 is removed and reserved.

7. Section 171.19 is revised to read as follows:

Sec. 171.19 Approvals or authorizations issued by the Bureau of

Explosives.

Effective December 31, 1998, approvals or authorizations issued by

the Bureau of Explosives (BOE), other than those issued under part 179

of this subchapter, are no longer valid.

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

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

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

follows:

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

9. In Sec. 172.101, the Hazardous Materials Table is amended by

adding the following entries, in appropriate alphabetical order, to

read as follows:

Sec. 172.101 Purpose and use of hazardous materials table.

* * * * *

[[Page 37460]]

Sec. 172.101 Hazardous Materials Table

Hazardous (8) Packaging (Sec. 173.* (9) Quantity limitations (10) Vessel stowage

materials Hazard * *) -------------------------------------------------------------

Symbols descriptions and class or Identification PG Label Special ------------------------------

proper shipping division numbers codes provisions Non- Passenger Cargo aircraft Location Other

names Exceptions bulk Bulk aircraft/rail only

(1) (2).............. (3) (4)............. (5).......... (6) (7).......... (8A) (8B) (8C) (9A)............. (9B)............. (10A)........ (10B)

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

* * * * * * *

[ADD:]

Pepper spray, see ........ ................ ............. ....... ............. .......... ....... ....... ................. ................. ............. .......

Aerosols, etc.

or Self-defense

spray, non-

pressurized.

* * * * * * *

Self-defense ........ ................ ............. ....... ............. .......... ....... ....... ................. ................. ............. .......

spray, aerosol,

see Aerosols,

etc.

+AD........... Self-defense 9 NA3334.......... III.......... 9 A37.......... 155 203 None No limit......... No limit......... A............ .......

spray, non-

pressurized.

* * * * * * *

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

[[Page 37461]]

Sec. 172.101 [Amended]

10. In addition, in Sec. 172.101, in the Hazardous Materials Table,

the following changes are made:

a. For the entry, ``Aluminum smelting by-products or Aluminum

remelting by-products'' (UN3170), for Packing Groups II and III, in

Column (7), the special provision ``128,'' is added immediately before

``B106'', each place it appears.

b. For the entry, ``Corrosive solids, water-reactive, n.o.s.''

(UN3096), for Packing Group II, in Column (7), the special provision

``128,'' is removed.

c. For the entry, ``Detonators, non-electric for blasting.'',

UN0455, in Column (8A), the reference ``None'' is revised to read

``63(f), 63(g)''.

d. For the entry, ``Dimethylhydrazine, unsymmetrical'', in Column

(7), the special provision ``B7,'' is added immediately following

``2,''.

e. For the entry, ``Hydrazine, anhydrous or Hydrazine aqueous

solutions with more than 64 percent hydrazine, by mass.'', in Column

(7), the special provision ``B7,'' is added immediately following

``A10,''.

f. For the entry, ``Methylhydrazine'', in Column (7), the special

provision ``B7,'' is added immediately following ``1,''.

g. For the entry, ``Trifluoroacetyl chloride'', in Column (7), the

special provision ``B7,'' is added immediately following ``2,''.

h. For the entry, ``Water-reactive solid, corrosive, n.o.s.''

(UN3131), for Packing Groups II and III, in Column (7), the special

provision ``128,'' is removed each place it appears.

10a. In Sec. 172.102, paragraph (c)(1) is amended by revising

Special Provision 128 and paragraph (c)(2) is amended by adding Special

Provision A37 to read as follows:

Sec. 172.102 Special provisions.

* * * * *

(c) * * *

(1) * * *

Code/Special Provisions

* * * * *

128. Regardless of the provisions of Sec. 172.101(c)(12),

aluminum smelting by-products and aluminum remelting by-products

described under this entry, meeting the definition of Class 8,

Packing Group II and III may be classed as a Division 4.3 material

and transported under this entry. The presence of a Class 8 hazard

must be communicated as required by this Part for subsidiary

hazards.

(2) * * *

Code/Special Provisions

* * * * *

A37. This entry applies only to a material meeting the

definition in Sec. 171.8 of this subchapter for self-defense spray.

* * * * *

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

PACKAGINGS

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

follows:

Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

12. Sec. 173.32c, in paragraph (m), a second sentence is added to

read as follows:

Sec. 173.32c Use of Specification IM portable tanks.

* * * * *

(m) * * * In addition, for unloading an IM portable tank, see

Sec. 177.834(h) of this subchapter.

* * * * *

Sec. 173.32c [Amended]

13. In addition, Sec. 173.32c, in paragraph (j), the first word

``An'' is removed and ``Except for a non-flowable solid, an'' is added

in its place.

Sec. 173.40 [Amended]

14. In Sec. 173.40, in paragraph (d)(1), in the first sentence, the

wording ``4C1, 4D, 4F, 4G, 4H1 or 4H2'' is removed.

15. In Sec. 173.56, paragraph (b)(1) is revised to read as follows:

Sec. 173.56 New explosives--definition and procedures for

classification and approval.

* * * * *

(b) * * *

(1) Except for an explosive made by or under the direction or

supervision of the Department of Defense (DOD) or the Department of

Energy (DOE), a new explosive must be examined and assigned a

recommended shipping description, division and compatibility group,

based on the tests and criteria prescribed in Secs. 173.52, 173.57 and

173.58. The person requesting approval of the new explosive must submit

to the Associate Administrator for Hazardous Materials Safety a report

of the examination and assignment of a recommended shipping

description, division, and compatibility group. If the Associate

Administrator finds the approval request meets the regulatory criteria,

the new explosive will be approved in writing and assigned an EX

number. The examination must be performed by a person who is approved

by the Associate Administrator under the provisions of subpart H of

part 107 of this chapter and who--

(i) Has (directly, or through an employee involved in the

examination) at least ten years of experience in the examination,

testing and evaluation of explosives;

(ii) Does not manufacture or market explosives, and is not

controlled by or financially dependent on any entity that manufactures

or markets explosives, and whose work with respect to explosives is

limited to examination, testing and evaluation; and

(iii) Is a resident of the United States.

* * * * *

Sec. 173.56 [Amended]

16. In addition, in Sec. 173.56, in paragraph (i), the wording ``,

following examination in accordance with paragraph (b) of this section,

revise its'' is removed and the wording ``specify a'' is added in its

place.

17. In Sec. 173.156, paragraph (b)(1) introductory text is revised

to read as follows:

Sec. 173.156 Exceptions for ORM materials.

* * * * *

(b) * * *

(1) Strong outer packagings as specified in this part, marking

requirements specified in subpart D of part 172 of this subchapter, and

the 30 kg (66 pounds) gross weight limitation are not required for

materials classed as ORM-D when--

* * * * *

18. In Sec. 173.308, paragraph (b) is revised to read as follows:

Sec. 173.308 Cigarette lighter or other similar device charged with

fuel.

* * * * *

(b) When no more than 1,500 devices covered by this section are

transported in one motor vehicle by highway, the requirements of

subparts C through H of part 172 of this subchapter, and part 177 of

this subchapter do not apply. However, no person may offer for

transportation or transport the devices or prepare the devices for

shipment unless that person has been specifically informed of the

requirements of this section. The outer packaging, as specified in

Special Provision N10 of Sec. 172.102(c)(5) of this subchapter, must be

plainly and durably marked with the required proper shipping name

specified in Sec. 172.101 of this subchapter, or the words ``CIGARETTE

LIGHTERS'' and the number of devices contained in the package.

* * * * *

Sec. 173.469 [Amended]

19. In Sec. 173.469(a)(4)(i), in the second sentence, the

mathematical expression ``(1.3 x 10 -\24\'' is removed and

``(1.3 10-4'' is added in its place.

[[Page 37462]]

PART 175--CARRIAGE BY AIRCRAFT

20. The authority citation for part 175 continues to read as

follows:

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

21. In Sec. 175.10, paragraph (a)(4) is revised to read as follows:

Sec. 175.10 Exceptions.

(a) * * *

(4) The following hazardous materials when carried by a passenger

or crew member for personal use in conformance with the following

conditions:

(i) Non-radioactive medicinal and toilet articles (including

aerosols) may be carried in checked or carry-on baggage;

(ii) One self-defense spray (see Sec. 171.8 of this subchapter),

not exceeding 118 ml (4 fluid ounces) by volume, that incorporates a

positive means to prevent accidental discharge may be carried in

checked baggage only;

(iii) Other aerosols in Division 2.2 with no subsidiary risk may be

carried in checked baggage only; and

(iv) The aggregate quantity of hazardous materials carried by the

person may not exceed 2 kg (70 ounces) by mass or 2 liters (68 fluid

ounces) by volume and the capacity of each container may not exceed 0.5

kg (18 ounces) by mass or 470 ml (16 fluid ounces) by volume.

* * * * *

22. In Sec. 175.25, the introductory text to paragraph (a)(1), the

second and fifth full paragraphs of the notice in paragraph (a)(1), and

paragraphs (a)(2)(i), (a)(2)(ii) and (a)(3) are revised; and a new

paragraph (a)(4) is added, to read as follows:

Sec. 175.25 Notification at air passenger facilities of hazardous

materials restrictions.

(a) * * *

(1) At a minimum, each notice must communicate the following

information:

* * * * *

A violation can result in five years' imprisonment and penalties

of $250,000 or more (49 U.S.C. 5124).

* * * * *

There are special exceptions for small quantities (up to 70

ounces total) of medicinal and toilet articles carried in your

luggage and certain smoking materials carried on your person.

* * * * *

(2) * * *

(i) In legible English and may, in addition to English, be

displayed in other languages; and

(ii) In lettering of at least 1 cm (0.4 inch) in height for the

first paragraph and 6.0 mm (0.2 inch) in height for the other

paragraphs; and

* * * * *

(3) Size and color of the notice are optional. Additional

information, examples, or illustrations, if not inconsistent with the

required information, may be included.

(4) Notwithstanding the requirements of paragraph (a)(1) of this

section, a notice with the wording ``A violation can result in

penalties of up to $25,000 and five years' imprisonment. (49 U.S.C.

1809)'' may be used through December 31, 2001.

* * * * *

23. In Sec. 175.26, paragraph (a)(2) is revised and a new paragraph

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

Sec. 175.26 Notification at cargo facilities of hazardous materials

requirements.

(a) * * *

(2) A violation can result in five years' imprisonment and

penalties of $250,000 or more (49 U.S.C. 5124).

* * * * *

(4) Notwithstanding the requirements of paragraph (a)(2) of this

section, a notice with the wording ``A violation can result in

penalties of up to $25,000 and five years' imprisonment (49 U.S.C.

1809)'' may be used through December 31, 2001.

* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

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

follows:

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

Sec. 177.834 [Amended]

25. In Sec. 177.834, in paragraph (h), in the next to the last

sentence, the wording ``cargo tank'' is removed and the wording ``cargo

tank or IM portable tank'' is added in its place, and a new paragraph

(o) is added to read as follows:

Sec. 177.834 General requirements.

* * * * *

(o) Unloading of IM portable tanks. An IM portable tank may be

unloaded while remaining on a transport vehicle with the power unit

attached if the tank meets the outlet requirements in Sec. 178.345-11

of this subchapter and the tank is attended by a qualified person

during the unloading in accordance with the requirements in paragraph

(i) of this section.

Sec. 177.848 [Amended]

26. In Sec. 177.848, in (f), in the Compatibility Table for Class 1

(Explosive) Materials, for compatibility group B, under the column

headed ``D'' and for compatibility group D, under the column headed

``B'', the entry ``4'' is removed and ``X(4)'' is added in

both places.

PART 178--SPECIFICATIONS FOR PACKAGINGS

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

follows:

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

Sec. 178.352-4 [Amended]

28. In Sec. 178.352-4, at the end of the section, the section

reference ``Sec. 178.103(3)(c)(1)'' is revised to read ``Sec. 178.352-

3(c)(1)''.

Sec. 178.354-2 [Amended]

29. In Sec. 178.354-2, in the first sentence of paragraph (a), the

section reference ``Sec. 178.104-5'' is revised to read ``Sec. 178.354-

5''.

Sec. 178.354-3 [Amended]

30. In Sec. 178.354-3, in paragraph (c) introductory text, the

section reference ``Sec. 178.104-3(a)(1)'' is revised to read

``paragraph (a)(1) of this section''.

Sec. 178.354-5 [Amended]

31. In Sec. 178.354-5, in paragraph (a), the wording ``Sec. 173.24

of this chapter'' is revised to read ``Sec. 178.3''.

Sec. 178.356-4 [Amended]

32. In Sec. 178.356-4, in paragraph (a), the wording ``Sec. 173.24

of this subchapter'' is revised to read ``Sec. 178.3''.

Sec. 178.358-3 [Amended]

33. In Sec. 178.358-3, the following changes are made:

a. In paragraph (b)(6), the section reference ``Sec. 178.121-5(c)''

is revised to read ``Sec. 178.358-5(c)''.

b. In paragraph (c), the section reference ``Sec. 178.121-5(b)'' is

revised to read ``Sec. 178.358-5''.

Sec. 178.358-5 [Amended]

34. In Sec. 178.358-5, in paragraph (a), the wording ``Sec. 173.24

of this subchapter'' is revised to read ``Sec. 178.3''.

Sec. 178.360-2 [Amended]

35. In Sec. 178.360-2, the section reference ``Sec. 178.34-4'' is

revised to read ``Sec. 178.360-4''.

Sec. 178.362-3 [Amended]

36. In Sec. 178.362-3, in paragraph (b), the section reference

``Sec. 178.104-4'' is revised to read ``Sec. 178.354-4''.

Sec. 178.364-5 [Amended]

37. In Sec. 178.364-5, in paragraph (a), the wording ``Sec. 173.24

of this subchapter'' is revised to read ``Sec. 178.3''.

[[Page 37463]]

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

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

follows:

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

39. In Sec. 180.405, paragraph (c)(1) is revised, paragraph (f)(7)

is redesignated as paragraph (f)(8) and new paragraph (f)(7) is added

to read as follows:

Sec. 180.405 Qualification of cargo tanks.

* * * * *

(c) * * * (1) A cargo tank made to a specification listed in Column

1 of Table 1 or Table 2 of this paragraph (c)(1) may be used when

authorized in this part, provided--

(i) The cargo tank initial construction began on or before the date

listed in Table 1, Column 2, as follows:

Table 1

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

Column 1 Column 2

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

MC 300................................. Sept. 2, 1967.

MC 301................................. June 12, 1961.

MC 302, MC 303, MC 304, MC 305, MC 310, Sept. 2, 1967.

MC 311.

MC 330................................. May 15, 1967.

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

(ii) The cargo tank was marked or certified before the date listed

in Table 2, Column 2, as follows:

Table 2

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

Column 1 Column 2

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

MC 306, MC 307, MC 312................. Sept. 1, 1995.

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

* * * * *

(f) * * *

(7) A cargo tank remarked and certified in conformance with this

paragraph (f) is excepted from the provisions of Sec. 180.405(c).

* * * * *

Issued in Washington, DC, on July 2, 1998, under authority

delegated in 49 CFR part 106.

Kelley S. Coyner,

Deputy Administrator, Research and Special Programs Administration.

[FR Doc. 98-18060 Filed 7-9-98; 8:45 am]

BILLING CODE 4910-60-P