
[Federal Register: December 22, 2009 (Volume 74, Number 244)]
[Proposed Rules]               
[Page 68004-68015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de09-17]                         

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 105, 107, 171, 173, 174, 176, 177, and 179

[Docket No. PHMSA-2009-0289 (HM-233A)]
RIN 2137-AE39

 
Hazardous Materials: Incorporation of Special Permits Into 
Regulations

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
proposing to amend the Hazardous

[[Page 68005]]

Materials Regulations to incorporate provisions contained in certain 
widely used or longstanding special permits that have an established 
safety record. Special permits allow a company or individual to package 
or ship a hazardous material in a manner that varies from the 
regulations so long as an equivalent level of safety is maintained. The 
proposed revisions are intended to provide wider access to the 
regulatory flexibility offered in special permits and eliminate the 
need for numerous renewal requests, thus reducing paperwork burdens and 
facilitating commerce while maintaining an appropriate level of safety.

DATES: Written comments should be submitted on or before February 22, 
2010.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2009-0289 (HM-233A) by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. All 
comments received will be posted without change to the Federal Docket 
Management System (FDMS), including any personal information.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson or Dirk Der Kinderen, 
Office of Hazardous Materials Standards, (202) 366-8553, or Diane 
LaValle, Office of Hazardous Materials Special Permits and Approvals, 
(202) 366-4535, Pipeline and Hazardous Materials Safety Administration 
(PHMSA), 1200 New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Background

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171-180) to incorporate certain requirements based on existing 
special permits (SPs) issued by PHMSA under 49 CFR Part 107, Subpart B 
(Sec. Sec.  107.101 to 107.127). A special permit sets forth 
alternative requirements--or a variance--to the requirements in the HMR 
in a way that achieves a safety level at least equal to the safety 
level required under the regulations or that is consistent with the 
public interest. Congress expressly authorized DOT to issue these 
variances in the Hazardous Materials Transportation Act of 1975.
    The HMR generally are performance oriented regulations, which 
provides the regulated community with a certain amount of flexibility 
in meeting safety requirements. Even so, however, not every 
transportation situation can be anticipated and built into the 
regulations. Innovation is a strength of our economy and the hazardous 
materials community is particularly strong at developing new materials 
and technologies and innovative ways of moving materials. Special 
permits enable the hazardous materials industry to quickly and safely 
integrate new products and technologies into the production and 
transportation stream. Thus, special permits provide a mechanism for 
testing new technologies, promoting increased transportation efficiency 
and productivity, and ensuring global competitiveness. A special permit 
must achieve at least an equivalent level of safety as the HMR. 
Implementation of new technologies and operational techniques may 
enhance safety because the approved operations or activities achieve a 
greater level of safety than currently required under the regulations. 
Special permits also reduce the volume and complexity of the HMR by 
addressing unique or infrequent transportation situations that would be 
difficult to accommodate in regulations intended for use by a wide 
range of shippers and carriers.
    PHMSA conducts ongoing reviews of special permits to identify 
widely used and longstanding special permits with an established safety 
record for conversion into regulations of broader applicability. 
Converting these special permits into regulations reduces paperwork 
burdens and facilitates commerce while maintaining an acceptable level 
of safety. Additionally, adoption of special permits as rules of 
general applicability provides wider access to the benefits and 
regulatory flexibility of the provisions granted in the special 
permits. Factors that influence whether or not a specific special 
permit is a candidate for regulatory action include the safety record 
for hazardous materials transported under a special permit; broad 
application of a special permit; suitability of provisions in the 
special permit for incorporation into the HMR; rulemaking activity in 
related areas; and agency priorities.
    Several of the special permits addressed in this notice of proposed 
rulemaking (NPRM) have hundreds of party status grantees. Party status 
is granted to a person who wishes to offer for transport or transport a 
hazardous material in the same manner as the original applicant. 
Several special permits addressed in this NPRM provide for the 
manufacture, marking, sale and use of certain packagings for 
transportation of hazardous materials. These manufacturing special 
permits are issued to the packaging manufacturer and provide for use of 
the packagings by hundreds and possibly thousands of distributors and 
users.
    The amendments proposed in this NPRM will eliminate the need for 
approximately 510 current grantees to reapply for renewal of 44 special 
permits every four years and for PHMSA to process the renewal 
applications. These amendments also apply to any special permits this 
agency issues during the development of this rulemaking or its final 
rule whose provisions are identical in every respect to those described 
in the rulemakings issued under this docket. To emphasize this, we will 
preface the description of the affected special permits with the 
wording ``include'' or ``includes'' to clarify that additional special 
permits other than those specifically listed in this rulemaking may be 
incorporated under these proposed revisions.
    Incorporation of the special permits into the HMR also eliminates a 
significant paperwork burden. Unless otherwise excepted by this agency, 
a copy of each special permit must be maintained at each facility where 
a packaging is manufactured under a

[[Page 68006]]

special permit, at each facility where a package is offered or re-
offered for transportation under a special permit carried on board each 
cargo vessel or aircraft, and in some cases must be carried aboard each 
transport vehicle used to transport a hazardous material under a 
special permit.

II. Overview of Proposed Amendments

    We identified several special permits for incorporation into this 
NPRM. A more detailed discussion of amendments to the HMR based on 
incorporation of provisions from these special permits appears in the 
``Summary Review'' portion of this preamble. The proposed revisions 
include the following:
     Authorize vessel transportation for salvage cylinders 
containing damaged or leaking packagings under Sec.  173.3.
     Allow liquid contents in quantities greater than 10% of 
the capacity in a mechanical displacement meter prover to the extent 
that draining of the meter prover is impracticable.
     Authorize the transport of waste Division 4.2, Packing 
Group I material, Division 5.2 (organic peroxide) material, and 
Division 6.1, Packing Group I (Hazard Zone A) material in lab packs 
under Sec.  173.12.
     Allow the use of alternative outer packagings for waste 
lab packs and require use of UN standard steel or plastic drums (at the 
PG I performance level) for the transportation of Division 4.2, Packing 
Group I material and Division 6.1, Packing Group I, Hazard Zone A 
material in lab packs under Sec.  173.12.
     Except hazardous waste materials, packaged in lab packs 
and meeting additional conditions, from certain segregation and marking 
requirements under Sec.  173.12.
     Allow variation in the packing method for packagings 
prepared in accordance with Sec.  173.13.
     Authorize, for certain hazardous materials, external 
visual inspection of the rupture disc in a non-reclosing pressure 
relief device of a rail tank car without requiring removal of the 
rupture disc.
     Authorize the transportation of certain specially designed 
radiation detectors containing a Division 2.2 (non-flammable gas) 
material under a new section Sec.  173.310.
     Allow a greater gross weight limitation for packages used 
for the transport of aerosols for purposes of recycling or disposal.
     Allow rail tank cars to exceed the maximum capacity and 
gross weight on rail limitations upon approval from the Federal 
Railroad Administration (FRA) under Sec.  179.13.
     Eliminate several requirements for submitting duplicate 
copies of applications for special permit, party status, or renewal 
when the applications are submitted electronically.
     Require certification of understanding of a special permit 
for persons submitting an application for party status to a special 
permit.

III. Summary Review of Proposed Amendments

    The following are detailed summary discussions of proposed 
amendments to the HMR based on several special permits we have 
identified as suitable for incorporation into the HMR.

A. Salvage Cylinders

    In accordance with Sec.  173.3(d) of the HMR, damaged or leaking 
cylinders containing Division 2.1, 2.2, 2.3, 3, 6.1, or Class 8 
materials may be overpacked in a salvage cylinder and transported by 
motor vehicle for repair or disposal. In this NPRM, we are proposing to 
permit salvage cylinders to be transported by vessel, consistent with 
the provisions of DOT-SP 14168.

B. Meter Provers

    A mechanical displacement meter prover (meter prover) is a 
mechanical device, permanently mounted on a truck or trailer, 
consisting of a piping system that is used to calibrate the accuracy 
and performance of meters that measure the quantity of product being 
pumped or transferred at facilities such as drilling locations, 
refineries, tank farms and loading racks. Section 173.5a(b) excepts 
meter provers from specification packaging requirements in Part 178 of 
the HMR provided the meter provers conform to certain conditions. In a 
final rule published January 24, 2005 under Docket No. RSPA-03-16370 
(HM-233) (70 FR 3302), the Research and Special Programs Administration 
(RSPA), the predecessor agency to PHMSA, incorporated several special 
permits concerning meter provers into Sec.  173.5a. As provided by 
Sec.  173.5a(b), a meter prover is excepted from the specification 
packaging requirements when, among other criteria, the liquid content 
of the meter prover does not exceed 10% of capacity (see Sec.  
173.5a(b)(2)(i)). PHMSA subsequently issued a special permit to allow 
transport of meter provers containing flammable liquids in quantities 
greater than 10% capacity when conditions make draining of the liquid 
impracticable. This special permit was based on information that (1) 
facilities or equipment used to drain and reinject the meter provers 
may not be readily available while in the field; (2) alternatives such 
as using DOT specification cargo tanks as meter provers or accompanying 
a meter prover with DOT specification cargo tanks filled with liquids 
drained from the meter prover are cost prohibitive; and (3) there is a 
record of safe transportation of meter provers under provisions from 
special permits previously adopted into the HMR. Therefore, in this 
NPRM, we propose to allow meter provers to retain flammable liquid 
contents in quantities greater than 10% of capacity to the extent that 
draining the contents to 10% or less is impracticable. The affected 
special permits include DOT-SP 14405.
    We also propose to revise Sec.  173.5a, paragraph (b)(iv), to 
change the wording ``maximum service pressure'' to the acronym ``MAWP'' 
for maximum allowable working pressure for consistency with use of the 
wording in other provisions within the HMR. In addition, we are 
proposing to add a definition for ``Mechanical displacement meter 
prover'' in Sec.  171.8. As proposed, the definition reads: Mechanical 
displacement meter prover means a mechanical device used in the 
oilfield service industry consisting of a pipe assembly that is used to 
calibrate the accuracy and performance of meters that measure the 
quantities of a product being pumped or transferred at facilities such 
as drilling locations, refineries, tank farms, and loading racks.

C. Lab Packs

    Section 173.12 of the HMR excepts certain waste materials from 
specification packaging requirements when transported in packagings 
(``lab packs'') that conform to the requirements specified in paragraph 
(b) of the section. Currently, the outer packaging of the lab packs 
must be a UN 1A2 or UN 1B2 metal drum, a UN 1D plywood drum, a UN 1G 
fiber drum, or a UN 1H2 plastic drum tested to the Packing Group III 
performance level. In this NPRM, we propose to allow the use of a UN 4G 
fiberboard box made of at least 500 psig burst strength fiberboard that 
is tested and marked to at least the Packing Group II performance level 
as an alternative outer packaging for a lab pack. The affected special 
permits include DOT-SP 10791, 12927, 13285, 13937, 14510, and 14817. We 
also propose to allow the use of a UN11G fiberboard intermediate bulk 
container (IBC) and a UN 11HH2 composite IBC (with a flexible plastic 
inner receptacle for solids loaded or discharged by gravity) as 
alternative outer packaging for a lab pack. The affected special

[[Page 68007]]

permits include DOT-SP 12296, 12668, 12682, 12749, and 12826.
    Section 173.12 also excepts certain hazardous materials packaged in 
lab packs in conformance with paragraph (b) of this section from 
segregation requirements in Parts 174, 176, and 177 of the HMR provided 
the materials conform to limited segregation conditions in paragraph 
(e). In this NPRM, we are proposing to except certain additional 
hazardous waste materials in lab packs and non-bulk packagings from 
segregation and overpack marking requirements consistent with the 
provisions of DOT-SP 13192. We first issued DOT-SP 13192 in 2001 to 
consolidate earlier special permits that allowed different combinations 
of incompatible materials, including waste materials, to be transported 
together on the same transport vehicle. The waste materials are subject 
to safety control measures designed to mitigate the risks presented by 
these materials, such as quantity limitations, additional packaging, 
and segregation requirements. Revised editions of this special permit 
have authorized the transport of additional hazardous materials not 
currently authorized for transport under Sec.  173.12. These hazardous 
materials include Division 5.2 (organic peroxide) material, Division 
4.2 Packing Group I material (subject to more stringent outer packaging 
requirements), and Division 6.1 Packing Group I, Hazard Zone A material 
(for purposes of exception from segregation requirements only). It has 
been our experience with DOT-SP 13192 that when certain incompatible 
hazardous materials are properly packaged in lab packs and other 
authorized non-bulk packages, the possibility of these materials 
commingling in an incident is greatly reduced, if not eliminated, 
because of the integrity of the packagings and, for liquids, because of 
the requirement to include a sufficient amount of chemically compatible 
absorbent material to absorb the contents.
    Thus, in this NPRM, we propose to authorize the transport of 
Division 5.2 (organic peroxide) material and Division 4.2 Packing Group 
I material in lab packs, and authorize transport of waste Division 6.1 
Packing Group I, Hazard Zone A material with other waste materials if 
packaged in accordance with Sec.  173.226(c) of the HMR and further 
packaged in an overpack of a UN steel or plastic drum at the Packing 
Group I performance level. We also propose to make several conforming 
amendments to segregration requirements in Parts 174, 176, and 177 to 
clarify the requirements do not apply to Division 6.1 Packing Group I, 
Hazard Zone A material transported in conformance with Sec.  173.12(e).

D. Excepted Packaging

    Section 173.13 provides conditions for transport of hazardous 
materials in non-specification packaging. Currently, in Sec.  173.13, 
for packaging of liquids, a liquid must be placed in an inner packaging 
which is then placed in a hermetically sealed barrier bag that is 
wrapped in chemically compatible absorbent material and then placed in 
a metal can. PHMSA has issued a number of special permits that allow an 
alternative configuration in which the inner packaging for liquids is 
first wrapped in absorbent material and then placed in a hermetically 
sealed barrier bag which is then placed in a metal can. In this NPRM, 
we propose to incorporate this alternative method of packing inner 
packagings for liquids into Sec.  173.13. The affected special permits 
include DOT-SP 7891, 8249, 9168, 10672, 10962, 10977, 11248, 12401, 
13355.

E. Visual Inspection of Rail Tank Cars

    Section 173.31 outlines requirements for the use of rail tank cars 
transporting hazardous materials. Paragraph (d) of this section 
requires an offeror to perform an external visual inspection of a rail 
tank car containing a hazardous material or a residue of a hazardous 
material prior to offering it for transportation. As a part of the 
examination, paragraph (d)(1)(vi) requires a careful inspection of the 
rupture (frangible) disc in non-reclosing pressure relief devices for 
corrosion or damage that may alter the intended operation of the 
device. Under special permits DOT-SP 11761 and 11864, the rupture disc 
is not required to be removed prior to visual inspection if the tank 
car contains residue of a Class 8 (corrosive), Packing Group II or III 
material with no subsidiary hazard or the residue of Class 9 molten 
sulfur. The HMR define ``residue'' to mean the hazardous material 
remaining in a packaging after its contents have been unloaded to the 
maximum extent possible (see Sec.  171.8). PHMSA has interpreted 
``unloaded to the maximum extent possible'' to mean that the hazardous 
material has ceased to flow out of the packaging's unloading device. 
Operations under these special permits have demonstrated these 
materials are present in the tank car in insufficient quantity and 
physical form to present a risk from a release of the material through 
a tank car pressure relief device due to the failure of a rupture disc 
during transportation.
    Based on the safety record of use of the special permits, in this 
NPRM, we propose to revise paragraph (d)(1)(vi) to exclude inspection 
of the underside of the rupture disc on rail tank cars containing 
residue of a Class 8 (corrosive), PG II or III material with no 
subsidiary hazard or containing the residue of a Class 9 elevated 
temperature material.

F. Radiation Detectors

    Radiation detectors are used for measuring the intensity of 
ionizing radiation. The devices typically contain a gas filled tube or 
ion chamber where radiation converts the gas into ions and the rate at 
which these ions are collected (on oppositely charged electrodes in the 
device) is measured as electric current. These radiation detectors are 
often used as integral parts of medical test equipment, such as a dose 
calibrator. The HMR require that the pressurized gas contained in these 
devices be transported in DOT specification cylinders or non-
specification containers meeting the requirements prescribed in Sec.  
173.302 or Sec.  173.306 of the HMR.
    In this NPRM, we propose to authorize in new Sec.  173.310 the 
transportation of radiation detectors (also described as radiation 
sensors, electron tube devices, and ionization chambers) containing a 
gas, specifically, certain Division 2.2 (non-flammable) compressed 
gases contained in electron tubes that are non-DOT specification, 
metal, single trip, inside containers that may or may not be 
hermetically sealed or equipped with a pressure relief device, based on 
the use of several special permits. The inside metal containers must be 
welded and designed to prevent fragmentation upon impact. The electron 
tubes may have up to a maximum design pressure of 4.83 MPa (700 psig), 
and up to a maximum water capacity of 355 fluid ounces (641 cubic 
inches), and must have a burst pressure of not less than three times 
the design pressure if equipped with a pressure relief device, and not 
less than four times the design pressure if not equipped with a 
pressure relief device. Also, each radiation detector must be placed in 
a strong outer packaging capable of withstanding a minimum drop test of 
1.2 meter (4 feet) without breaking the device or rupturing the outer 
packaging, or if shipped as part of equipment, that the equipment 
provide equivalent protection. In addition, each shipment of these 
devices must be accompanied by emergency response information that must 
identify those receptacles not fitted with a pressure relief device, 
and provide guidance on

[[Page 68008]]

how to manage all the detectors if they are exposed to fire. When 
transported in conformance with these conditions, we propose to except 
radiation detectors from the specification packaging in this subchapter 
and, except when transported by air, from labeling and placarding 
requirements of this subchapter. The safety record for shipments made 
in accordance with several special permits is outstanding; therefore, 
PHMSA has determined the exceptions they contain demonstrate an 
acceptable level of safety and are candidates for inclusion into the 
HMR. The affected special permits include DOT-SP 9030, 9940, 10407, 
12131, 12415, 13026, 13109 and 13244.

G. Aerosols for Recycling or Disposal

    Section 173.306 provides exceptions from the requirements of the 
HMR for transport of limited quantities of compressed gases including 
limited quantities contained in aerosol containers. Conditions for 
exception from requirements include a 30 kg (66 pound) gross weight 
limitation for outer packagings. Under a special permit, PHMSA 
authorized the transport of limited quantities of certain Division 2.1 
(flammable) and Division 2.2 (non-flammable) gases in aerosol 
containers packaged in strong outer packagings with gross weights of up 
to 500 kg (1,100 pounds). PHMSA allowed the increase in gross weight 
for the purpose of packaging discarded empty, partially used, and full 
aerosol containers to be transported to a recycling or disposal 
facility. As part of the conditions for the special permit, each 
aerosol container must be fitted with a cap to protect the valve stem 
or the valve stem must be removed. Based on the safe record of 
transportation of these aerosol containers under this special permit; 
and based on the fact that some limited quantity materials reclassed as 
ORM-D material, as authorized under Sec.  173.306, are not subject to 
the 30 kg (66 pound) gross weight limitation when unitized in packages 
and offered for transportation in accordance with Sec.  173.156 of the 
HMR, in this NPRM, we propose in Sec.  173.306(k) to authorize the 
highway transport of aerosol containers conforming to Sec.  173.306 in 
strong outer packagings not to exceed 500 kg (1,100 pounds) when 
transported for the purpose of recycling or disposal. The affected 
special permits include DOT-SP 12842.

H. Rail Tank Car Gross Weight Limitation

    Section 179.13 sets limitations on rail tank car capacity and gross 
weight. Currently, this section limits rail tank cars to a maximum 
capacity of 34,500 gallons (130,597 L) and a gross weight of 263,000 
pounds (119,295 kg). PHMSA granted several special permits to allow 
tank cars to transport up to 286,000 pounds (129,727 kg) gross weight 
on rail subject to certain conditions. We propose to revise this 
section to provide rail carriers with relief from the rail tank car 
capacity and gross weight limitations subject to review of an approval 
application submitted to the Associate Administrator for Safety, FRA. 
Providing for an approval process will expedite movement of rail tank 
cars by simplifying regulatory procedures and eliminating the time 
constraints associated with the mandatory comment period required for 
special permit applications. The affected special permits include DOT-
SP 11241, 11654, 11803, 12423, 12561, 12613, 12768, 12858, 12903, 
13856, 13936, 14004, 14038, 14442, 14505, 14520, 14570, and 14619.

I. Revisions to Procedures

    Procedures for serving documents in PHMSA proceedings are 
established in 49 CFR Part 105. In accordance with these procedures, a 
non-resident of the United States must designate an agent and file the 
designation with PHMSA. In this NPRM, we propose to add the phrase 
``agent for service of process'' as a synonym for the word ``agent'' in 
paragraph (b) of Sec.  105.40(b) to clarify that this term includes an 
agent for service of process as this phrase is used elsewhere in 
PHMSA's procedural regulations in 49 CFR Parts 105, 106, and 107. In 
addition, in this NPRM we propose to revise the definition for 
``Special Permit'' in 49 CFR Part 107 to permit the Associate 
Administrator of Hazardous Materials Safety to delegate signature 
authority at the Office Director level. We are proposing the same 
revision to the definition for ``Special Permit'' in Sec.  171.8.
    As provided in Sec.  107.105, an application for a special permit 
must be submitted in duplicate no matter the method of submission, 
whether mail, fax, or e-mail. We propose to revise paragraph (a)(1) of 
this section to clarify that a duplicate copy of the application for a 
special permit is not required when the application is submitted 
electronically by e-mail. We also propose to revise paragraph (a)(2) to 
require an e-mail address if available and the DOT registration number 
if applicable. Finally, we are revising the format of paragraph (a) for 
greater ease of understanding of the application requirements for 
special permits.
    Application requirements for party status to a special permit are 
set forth in Sec.  107.107. We propose to revise paragraph (b)(1) of 
this section to clarify that a duplicate copy of the application for 
party status is not required when the application is submitted 
electronically by e-mail and to revise paragraph (b)(3) to require an 
e-mail address if available and the DOT registration number if 
applicable. In addition, in paragraph (b)(3), we propose to require an 
applicant for party status to provide a justification of the need for 
party status to the special permit and to certify that the applicant 
has read and understands the provisions of the special permit for party 
status. Finally, we are revising the format of paragraph (a) to make it 
easier to understand the application requirements.
    Application procedures for renewal of a special permit are set 
forth in Sec.  107.109. We propose to revise paragraph (a)(1) to state 
that a duplicate copy of an application to renew a special permit is 
not required when the application is submitted electronically.

IV. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under the authority of 49 U.S.C. 5103(b) 
which authorizes the Secretary to prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) 
authorizes the Secretary of Transportation to issue a special permit 
from a regulation prescribed in 5103(b), 5104, 5110, or 5112 of the 
Federal Hazardous Materials Transportation Law to a person 
transporting, or causing to be transported, hazardous material in a way 
that achieves a safety level at least equal to the safety level 
required under the law, or consistent with the public interest, if a 
required safety level does not exist. If adopted as proposed, the final 
rule would amend the regulations incorporating provision from certain 
widely used and longstanding special permits that have established a 
history of safety and which may, therefore, be converted into the 
regulations for general use.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under section 3(f) and was not reviewed by the Office of 
Management and Budget (OMB). The proposed rule is not considered a 
significant rule under the Regulatory Policies and Procedures order 
issued by the Department of Transportation [44 FR 11034].

[[Page 68009]]

    In this notice, we propose to amend the HMR to incorporate 
alternatives this agency has permitted under widely used and 
longstanding special permits with established safety records we have 
determined meet the safety criteria for inclusion in the HMR. 
Incorporation of these special permits into regulations of general 
applicability will provide shippers and carriers with additional 
flexibility to comply with established safety requirements, thereby 
reducing transportation costs and increasing productivity. In addition, 
the proposals in this NPRM will reduce the paperwork burden on industry 
and this agency resulting from continued renewals of special permits. 
Taken together, the provisions of this proposed rule will promote the 
continued safe transportation of hazardous materials while reducing 
transportation costs for the industry and administrative costs for the 
agency.

C. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
proposed rule would preempt state, local and Indian tribe requirements 
but does not propose any regulation that has substantial direct effects 
on the states, the relationship between the national government and the 
states, or the distribution of power and responsibilities among the 
various levels of governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply. Federal hazardous 
material transportation law, 49 U.S.C. 5101-5128, contains an express 
preemption provision (49 U.S.C. 5125(b)) preempting state, local and 
Indian tribe requirements on certain covered subjects. Covered subjects 
are:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
reconditioning, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous materials.
    This final rule addresses covered subject items (2), (3), and (5) 
and would preempt any State, local, or Indian tribe requirements not 
meeting the ``substantively the same'' standard. Federal hazardous 
materials transportation law provides at 49 U.S.C. 5125(b)(2) that if 
PHMSA issues a regulation concerning any of the covered subjects, PHMSA 
must determine and publish in the Federal Register the effective date 
of Federal preemption. The effective date may not be earlier than the 
90th day following the date of issuance of the proposed rule and not 
later than two years after the date of issuance. PHMSA proposes the 
effective date of federal preemption be 90 days from publication of a 
final rule in this matter in the Federal Register.

D. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not have tribal implications and does not impose substantial 
direct compliance costs on Indian tribal governments, the funding and 
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities. 
An agency must conduct a regulatory flexibility analysis unless it 
determines and certifies that a rule is not expected to have a 
significant impact on a substantial number of small entities. This 
proposed rule incorporates into the HMR certain widely used special 
permits. Incorporation of these special permits into regulations of 
general applicability will provide shippers and carriers with 
additional flexibility to comply with established safety requirements, 
thereby reducing transportation costs and increasing productivity. 
Therefore, I certify this rule will not have a significant economic 
impact on a substantial number of small entities.
    This proposed rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA has an approved information collection under OMB Control 
Number 2137-0051, ``Rulemaking, Special Permits, and Preemption 
Requirements.'' This NPRM may result in a decrease in the annual burden 
and costs under this information collection due to proposed changes to 
incorporate provisions contained in certain widely used or longstanding 
special permits that have an established safety record.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of the public and affected agencies an opportunity to comment 
on information and recordkeeping requests.
    This notice identifies a revised information collection request 
that PHMSA will submit to OMB for approval based on the requirements in 
this proposed rule. PHMSA has developed burden estimates to reflect 
changes in this proposed rule. PHMSA estimates that the information 
collection and recordkeeping burden as proposed in this rule would be 
as follows:
    OMB Control No. 2137-0051:
    Net Decrease in Annual Number of Respondents: 520.
    Net Decrease in Annual Responses: 55.
    Net Decrease in Annual Burden Hours: 560.
    Net Decrease in Annual Burden Costs: $22,400.
    PHMSA specifically requests comments on the information collection 
and recordkeeping burdens associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.
    Requests for a copy of this information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.
    Address written comments to the Dockets Unit as identified in the 
ADDRESSES section of this rulemaking. We must receive comments 
regarding information collection burdens prior to the close of the 
comment period identified in the DATES section of this rulemaking. In 
addition, you may submit comments specifically related to the 
information collection burden to the PHMSA Desk Officer, Office of

[[Page 68010]]

Management and Budget, at fax number 202-395-6974.

G. 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 contained in the heading of 
this document may be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 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.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major Federal actions and to prepare a detailed 
statement on actions that significantly affect the quality of the human 
environment.
    The hazardous materials regulatory system is a risk management 
system that is prevention-oriented and focused on identifying a hazard 
and reducing the probability and quantity of a hazardous materials 
release. Hazardous materials are categorized by hazard analysis and 
experience into hazard classes and packing groups. The regulations 
require each shipper to class a material in accordance with these 
hazard classes and packing groups; the process of classifying a 
hazardous material is itself a form of hazard analysis. Further, the 
regulations require the shipper to communicate the material's hazards 
by identifying the hazard class, packing group, and proper shipping 
name on shipping papers and with labels on packages and placards on 
transport vehicles. Thus, the shipping paper, labels, and placards 
communicate the most significant findings of the shipper's hazard 
analysis. A hazardous material is assigned to one of three packing 
groups based upon its degree of hazard, from a high hazard Packing 
Group I material to a low hazard Packing Group III material. The 
quality, damage resistance, and performance standards for the 
packagings authorized for the hazardous materials in each packing group 
are appropriate for the hazards of the material transported.
    Hazardous materials are transported by aircraft, vessel, rail, and 
highway. The potential for environmental damage or contamination exists 
when packages of hazardous materials are involved in transportation 
accidents. The need for hazardous materials to support essential 
services means transportation of highly hazardous materials is 
unavoidable. However, these shipments frequently move through densely 
populated or environmentally sensitive areas where the consequences of 
an incident could be loss of life, serious injury, or significant 
environmental damage. The ecosystems that could be affected by a 
hazardous materials release during transportation include atmospheric, 
aquatic, terrestrial, and vegetal resources (for example, wildlife 
habitats). The adverse environmental impacts associated with releases 
of most hazardous materials are short-term impacts that can be greatly 
reduced or eliminated through prompt clean-up of the accident scene.
    There are no significant environmental impacts associated with the 
proposals in this NPRM. We are proposing clarifications and changes to 
certain HMR requirements to include methods for packaging, describing, 
and transporting hazardous materials that are currently permitted under 
widely used special permits with established safety records for 
inclusion in the HMR. The process through which safety permits are 
issued requires the applicant to demonstrate that the alternative 
transportation method or packaging proposed provides an equivalent 
level of safety as that provided in the HMR. Implicit in this process 
is that the special permit must provide an equivalent level of 
environmental protection as that provided in the HMR. Thus, 
incorporation of the special permits as regulations of general 
applicability maintains the existing environmental protections built 
into the HMR.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, pages 19477-78), or at http://
www.regulations.gov.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Reporting and recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

49 CFR Part 174

    Hazardous materials transportation, Radioactive materials, Rail 
carriers, Railroad safety, Reporting and recordkeeping requirements.

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 179

    Hazardous materials transportation, Railroad safety, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, we propose to amend 49 CFR 
Chapter I as follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

    1. The authority citation for part 105 is revised to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.


Sec.  105.40  [Amended]

    2. In Sec.  105.40, paragraph (b), introductory paragraph, after 
the word ``agent'', add the words and punctuation ``, also known as 
``agent for service of process''.''

[[Page 68011]]

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

    3. The authority citation for part 107 is revised to read as 
follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 
4 (28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 
104-134 section 31001; 49 CFR 1.45, 1.53.

    4. In Sec.  107.1, revise the definition of ``Special permit'' to 
read as follows:


Sec.  107.1  Definitions.

* * * * *
    Special permit means a document issued by the Associate 
Administrator, or other designated Department official, under the 
authority of 49 U.S.C. 5117 permitting a person to perform a function 
that is not otherwise permitted under subchapters A or C of this 
chapter, or other regulations issued under 49 U.S.C. 5101 et seq. 
(e.g., Federal Motor Carrier Safety routing requirements). The terms 
``special permit'' and ``exemption'' have the same meaning for purposes 
of subchapters A or C of this chapter or other regulations issued under 
49 U.S.C. 5101 through 5128.
* * * * *
    5. In Sec.  107.105, revise paragraph (a) to read as follows:


Sec.  107.105   Application for special permit.

    (a) General. Each application for a special permit or modification 
of a special permit must be written in English and submitted for timely 
consideration, at least 120 days before the requested effective date 
and must--
    (1)(i) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting 
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308; 
or
    (iii) Be submitted by electronic mail (e-mail) to: 
Specialpermits@dot.gov. Electronic submissions need not be submitted in 
duplicate;
    (2) State the name, street and mailing addresses, e-mail address 
(if available), US DOT Registration number (if applicable), and 
telephone number of the applicant. If the applicant is not an 
individual, also state the name, street and mailing addresses, e-mail 
address (if available), and telephone number of an individual 
designated as an agent of the applicant for all purposes related to the 
application;
    (3) Include a designation of agent of service for process in 
accordance with Sec.  105.40 of this part if the applicant is not a 
resident of the United States; and
    (4) For a manufacturing special permit, include a statement of the 
name and street address of each facility when manufacturing under the 
special permit will occur.
* * * * *
    6. In Sec.  107.107, revise paragraphs (b)(1), (3), (4), and (5) to 
read as follows:


Sec.  107.107   Application for party status.

* * * * *
    (b) * * *
    (1)(i) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting 
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308; 
or
    (iii) Be submitted by electronic mail (e-mail) to: 
Specialpermits@dot.gov. Electronic submissions need not be submitted in 
duplicate;
    (2) * * *
    (3) State the name, street and mailing addresses, e-mail address 
(if available), US DOT Registration number (if applicable), and 
telephone number of the applicant. If the applicant is not an 
individual, also state the name, street and mailing addresses, e-mail 
address (if available), and telephone number of an individual 
designated as an agent of the applicant for all purposes related to the 
application. In addition, each applicant must state why party status to 
the special permit is needed and must submit a certification of 
understanding of the provisions of the special permit to which party 
status is being requested;
    (4) Include a designation of agent of service for process in 
accordance with Sec.  105.40 of this part if the applicant is not a 
resident of the United States; and
    (5) For a Class 1 material that is forbidden for transportation by 
aircraft except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), include a certification by the applicant for 
party status to a special permit to transport such Class 1 material, on 
passenger-carrying or cargo-only aircraft with a maximum certificated 
takeoff weight of less than 12,500 pounds, that no person within the 
categories listed in 18 U.S.C. 842(i) will participate in the 
transportation of the Class 1 material.
* * * * *
    7. Revise Sec.  107.109 to read as follows:


Sec.  107.109   Application for renewal.

    (a) Each application for renewal of a special permit or renewal of 
party status to a special permit must--
    (1)(i) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, East Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590-0001;
    (ii) Be submitted in duplicate with any attached supporting 
documentation by facsimile (fax) to: (202) 366-3753 or (202) 366-3308; 
or
    (iii) Be submitted by electronic mail (e-mail) to: 
Specialpermits@dot.gov. Electronic submissions need not be submitted in 
duplicate;
    (2) Identify by number the special permit for which renewal is 
requested;
    (3) State the name, street and mailing addresses, e-mail address 
(if available), US DOT Registration number (if applicable), and 
telephone number of the applicant. If the applicant is not an 
individual, also state the name, street and mailing addresses, e-mail 
address (if available), and telephone number of an individual 
designated as an agent of the applicant for all purposes related to the 
application. In addition, each applicant for renewal of party status 
must state why party status to the special permit is needed and must 
submit a certification of understanding of the provisions of the 
special permit to which party status is being requested;
    (4) Include either a certification by the applicant that the 
original application, as it may have been updated by any application 
for renewal, remains accurate and complete; or include an amendment to 
the previously submitted application as is necessary to update and 
assure the accuracy and completeness of the application, with 
certification by the applicant that the application as amended is 
accurate and complete; and
    (5) Include a statement describing all relevant shipping and 
incident experience of which the applicant is aware in connection with 
the special permit since its issuance or most recent renewal. If the 
applicant is aware of no incidents, the applicant must so certify. When 
known to the applicant, the statement should indicate the approximate 
number of shipments made or packages shipped, as the case may be, and 
number of shipments or packages

[[Page 68012]]

involved in any loss of contents, including loss by venting other than 
as authorized in subchapter C; and
    (6) When a Class 1 material is forbidden for transportation by 
aircraft, except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), include a certification by the applicant for 
renewal of party status to a special permit to transport such Class 1 
material, on passenger-carrying or cargo-only aircraft with a maximum 
certificated takeoff weight of less than 12,500 pounds, that no person 
within the categories listed in 18 U.S.C. 842(i) will participate in 
the transportation of the Class 1 material.
    (b) If at least 60 days before an existing special permit expires 
the grantee files an application for renewal that is complete and 
conforms to the requirements of this section, the special permit will 
not expire until final administrative action on the application for 
renewal has been taken.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    8. The citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410, section 4 (28 U.S.C. 2461 Note); Pub. L. 104-134 
section 31001.

    9. In Sec.  171.8, add a new definition for ``Mechanical 
displacement meter prover'' and revise the definition for ``Special 
permit'' to read as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Mechanical displacement meter prover means a mechanical device used 
in the oilfield service industry consisting of a pipe assembly that is 
used to calibrate the accuracy and performance of meters that measure 
the quantities of a product being pumped or transferred at facilities 
such as drilling locations, refineries, tank farms, and loading racks.
* * * * *
    Special permit means a document issued by the Associate 
Administrator, or other designated Department official, under the 
authority of 49 U.S.C. 5117 permitting a person to perform a function 
that is not otherwise permitted under subchapters A or C of this 
chapter, or other regulations issued under 49 U.S.C. 5101 et seq. 
(e.g., Federal Motor Carrier Safety routing requirements). The terms 
``special permit'' and ``exemption'' have the same meaning for purposes 
of subchapters A or C of this chapter or other regulations issued under 
49 U.S.C. 5101 through 5128.
* * * * *

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

    10. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    11. In Sec.  173.3, revise paragraph (d)(6) to read as follows:


Sec.  173.3   Packaging and exceptions.

* * * * *
    (d) * * *
    (6) Transportation is authorized by motor vehicle and vessel only.
* * * * *
    12. In Sec.  173.5a, revise paragraph (b) to read as follows:


Sec.  173.5a   Oilfield service vehicles and mechanical displacement 
meter provers.

* * * * *
    (b) Mechanical displacement meter provers. (1) A mechanical 
displacement meter prover, as defined in Sec.  171.8 of this 
subchapter, permanently mounted on a truck chassis or trailer and 
transported by motor vehicle is excepted from the specification 
packaging requirements in part 178 of this subchapter provided it--
    (i) Contains only the residue of a Division 2.1 (flammable gas) or 
Class 3 (flammable liquid) material. For liquids, the meter prover must 
be drained to not exceed 10% of its capacity or, to the extent that 
draining of the meter prover is impracticable, to the maximum extent 
practicable. For gases, the meter prover must not exceed 25% of the 
marked pressure rating;
    (ii) Has a water capacity of 3,785 L (1,000 gallons) or less;
    (iii) Is designed and constructed in accordance with chapters II, 
III, IV, V and VI of ASME Standard B31.4 (IBR, see Sec.  171.7 of this 
subchapter);
    (iv) Is marked with the MAWP determined from the pipe component 
with the lowest pressure rating; and
    (v) Is equipped with rear-end protection as prescribed in Sec.  
178.337-10(c) of this subchapter and 49 CFR 393.86 of the Federal Motor 
Carrier Safety Regulations.
    (2) The description on the shipping paper for a meter prover 
containing the residue of a hazardous material must include the phrase 
``RESIDUE: LAST CONTAINED * * * '' before the basic description.
    (3) Periodic test and inspection. (i) Each meter prover must be 
externally visually inspected once a year. The external visual 
inspection must include at a minimum: checking for leakage, defective 
fittings and welds, defective closures, significant dents and other 
defects or abnormalities which indicate a potential or actual weakness 
that could render the meter prover unsafe for transportation; and
    (ii) Each meter prover must be pressure tested once every 5 years 
at not less than 75% of design pressure. The pressure must be held for 
a period of time sufficiently long to assure detection of leaks, but in 
no case less than 5 minutes.
    (4) In addition to the training requirements in subpart H, the 
person who performs the visual inspection or pressure test and/or signs 
the inspection report must have the knowledge and ability to perform 
them as required by this section.
    (5) A meter prover that fails the periodic test and inspection must 
be rejected and removed from hazardous materials service unless the 
meter prover is adequately repaired, and thereafter, a successful test 
is conducted in accordance with the requirements of this section.
    (6) Prior to any repair work, the meter prover must be emptied of 
any hazardous material. A meter prover containing flammable lading must 
be purged.
    (7) Each meter prover successfully completing the external visual 
inspection and the pressure test must be marked with the test date 
(month/year), and the type of test or inspection as follows:
    (i) V for external visual inspection; and
    (ii) P for pressure test.
    The marking must be on the side of a tank or the largest piping 
component in letters 32 mm (1.25 inches) high on a contrasting 
background.
    (8) The owner must retain a record of the most recent external 
visual inspection and pressure test until the next test or inspection 
of the same type is successfully completed. The test or inspection 
report must include the following:
    (i) Serial number or other meter prover identifier;
    (ii) Type of test or inspection performed;
    (iii) Test date (month/year);
    (iv) Location of defects found, if any, and method used to repair 
each defect;
    (v) Name and address of person performing the test or inspection;
    (vi) Disposition statement, such as ``Meter Prover returned to 
service'' or ``Meter Prover removed from service''.
    13. In Sec.  173.12, revise paragraphs (b) and (e), redesignate 
paragraph (f) as new

[[Page 68013]]

paragraph (g), and add new paragraph (f) to read as follows:


Sec.  173.12  Exceptions for shipment of waste materials.

* * * * *
    (b) Lab packs. (1) Waste materials prohibited by paragraph (b)(3) 
of this section are not authorized for transport in packages authorized 
by this paragraph (b). Waste materials classed as Class or Division 3, 
4.1, 4.2, 4.3, 5.1, 5.2, 6.1, 8, or 9 are excepted from the 
specification packaging requirements of this subchapter for combination 
packagings if packaged in accordance with this paragraph (b) and 
transported for disposal or recovery by highway, rail or cargo vessel. 
In addition, a generic description from the Sec.  172.101 Hazardous 
Materials Table may be used in place of specific chemical names, when 
two or more chemically compatible waste materials in the same hazard 
class are packaged in the same outside packaging.
    (2) Combination packaging requirements:
    (i) Inner packagings. The inner packagings must be either glass, 
not exceeding 4 L (1 gallon) rated capacity, or metal or plastic, not 
exceeding 20 L (5.3 gallons) rated capacity. Inner packagings 
containing liquid must be surrounded by a chemically compatible 
absorbent material in sufficient quantity to absorb the total liquid 
contents.
    (ii) Outer packaging. Each outer packaging may contain only one 
class of waste material. The following outer packagings are authorized 
except that Division 4.2 Packing Group I materials must be packaged 
using UN standard steel or plastic drums tested and marked to the 
Packing Group I performance level for liquids or solids; and bromine 
pentafluoride and bromine trifluoride may not be packaged using UN 4G 
fiberboard boxes:
    (A) A UN 1A2 or UN 1B2 metal drum, a UN 1D plywood drum, a UN 1G 
fiber drum, or a UN 1H2 plastic drum, tested and marked to at least the 
Packing Group III performance level for liquids or solids;
    (B) At a minimum, a double-walled UN 4G fiberboard box made out of 
500 pound burst-strength fiberboard fitted with a polyethylene liner at 
least 3 mils (0.12 inches) thick and when filled during testing to 95 
percent capacity with a solid material, successfully passes the tests 
prescribed in Sec. Sec.  178.603 (drop) and 178.606 (stacking), and is 
capable of passing the tests prescribed in Sec.  178.608 (vibration) to 
at least the Packing Group II performance level for liquids or solids; 
or
    (C) A UN 11G fiberboard intermediate bulk container (IBC) or a UN 
11HH2 composite IBC, fitted with a polyethylene liner at least 6 mils 
(0.24 inches) thick, that successfully passes the tests prescribed in 
Subpart O of Part 178 and Sec.  178.603 to at least the Packing Group 
II performance level for liquids or solids; a UN 11HH2 is composed of 
multiple layers of encapsulated corrugated fiberboard between inner and 
outer layers of woven coated polypropylene.
    (iii) The gross weight of each completed combination package may 
not exceed 205 kg (452 lbs).
    (3) Prohibited materials. The following waste materials may not be 
packaged or described under the provisions of this paragraph (b): a 
material poisonous-by-inhalation, a Division 6.1 Packing Group I 
material, chloric acid, and oleum (fuming sulfuric acid).
* * * * *
    (e) Segregation requirements. Waste materials packaged according to 
paragraph (b) of this section and transported in conformance with this 
paragraph (e) are not subject to the segregation requirements in 
Sec. Sec.  174.81(d), 176.83(b), and 177.848(d) if blocked and braced 
in such a manner that they are separated from incompatible materials by 
a minimum horizontal distance of 1.2 m (4 feet) and the packages are 
loaded at least 100 mm (4 inches) off the floor of the freight 
container, unit load device, transport vehicle, or rail car. The 
following conditions specific to incompatible materials also apply:
    (1) The freight container, unit load device, transport vehicle, or 
rail car may not contain any Class 1 explosives, Class 7 radioactive 
material, or uncontainerized hazardous materials;
    (2) Waste cyanides and waste acids. For waste cyanides stored, 
loaded, and transported with waste acids:
    (i) The cyanide or a cyanide mixture may not exceed 2 kg (4.4 
pounds) net weight per inner packaging and may not exceed 10 kg (22 
pounds) net weight per outer packaging; a cyanide solution may not 
exceed 2 L (0.6 gallon) per inner packaging and may not exceed 10 L 
(3.0 gallons) per outer packaging; and
    (ii) The acids must be packaged in lab packs in accordance 
paragraph (b) of this section or in single packagings authorized for 
the acid in Column (8B) of the Sec.  172.101 Hazardous Materials Table 
of this subchapter not to exceed 208 L (55 gallons) capacity.
    (3) Waste Division 4.2 materials and waste Class 8 liquids. For 
waste Division 4.2 materials stored, loaded, and transported with waste 
Class 8 liquids:
    (i) The Division 4.2 material may not exceed 2 kg (4.4 pounds) net 
weight per inner packaging and may not exceed 10 kg (22 pounds) net 
weight per outer packaging; and
    (ii) The Class 8 liquid must be packaged in lab packs in accordance 
with paragraph (b) of this section or in single packagings authorized 
for the material in Column (8B) of the Sec.  172.101 Hazardous 
Materials Table of this subchapter not to exceed 208 L (55 gallons) 
capacity.
    (4) Waste Division 6.1 Packing Group I, Hazard Zone A material and 
waste Class 3, Class 8 liquids, or Division 4.1, 4.2, 4.3, 5.1 and 5.2 
materials. For waste Division 6.1 Packing Group I, Hazard Zone A 
material stored, loaded, and transported with waste Class 8 liquids, or 
Division 4.2, 4.3, 5.1 and 5.2 materials:
    (i) The Division 6.1 Packing Group I, Hazard Zone A material must 
be packaged in accordance with Sec.  173.226(c) of this subchapter and 
overpacked in a UN standard steel or plastic drum meeting the Packing 
Group I performance level;
    (ii) The Class 8 liquid must be packaged in lab packs in accordance 
with paragraph (b) of this section or in single packagings authorized 
for the material in Column (8B) of the Sec.  172.101 Hazardous 
Materials Table of this subchapter not to exceed 208 L (55 gallons) 
capacity.
    (iii) The Division 4.2 material may not exceed 2 kg (4.4 pounds) 
net weight per inner packaging and may not exceed 10 kg (22 pounds) net 
weight per outer packaging;
    (iv) The Division 5.1 materials may not exceed 2 kg (4.4 pounds) 
net weight per inner packaging and may not exceed 10 kg (22 pounds) net 
weight per outer packaging. The aggregate net weight per freight 
container, unit load device, transport vehicle, or rail car may not 
exceed 100 kg (220 pounds);
    (v) The Division 5.2 material may not exceed 1 kg (2.2 pounds) net 
weight per inner packaging and may not exceed 5 kg (11 pounds) net 
weight per outer packaging. Organic Peroxide, Type B material may not 
exceed 0.5 kg (1.1 pounds) net weight per inner packaging and may not 
exceed 2.5 kg (5.5 pounds) net weight per outer packaging. The 
aggregate net weight per freight container, unit load device, transport 
vehicle, or rail car may not exceed 50 kg (110 pounds).
    (f) Additional exceptions. Lab packs conforming to the requirements 
of this section are not subject to the following:

[[Page 68014]]

    (1) The overpack marking and labeling requirements in Sec.  
173.25(a)(2) of this subchapter when secured to a pallet with shrink-
wrap or stretch-wrap except that labels representative of each Hazard 
Class or Division in the overpack must be visibly displayed on two 
opposing sides.
    (2) The restrictions for overpacks containing Class 8, Packing 
Group I material and Division 5.1, Packing Group I material in Sec.  
173.25(a)(5) of this subchapter. These waste materials may be 
overpacked with other materials.
    (g) Household waste. Household waste, as defined in Sec.  171.8 of 
this subchapter, is not subject to the requirements of this subchapter 
when transported in accordance with applicable state, local, or tribal 
requirements.
    14. In Sec.  173.13, revise paragraph (c)(1)(ii) to read as 
follows:


Sec.  173.13  Exceptions for Class 3, Division 4.1, 4.2, 4.3, 5.1, 6.1, 
and Classes 8 and 9 materials.

* * * * *
    (c) * * *
    (1) * * *
    (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. Alternatively, the inner 
packaging may first be wrapped in a non-reactive absorbent material and 
then placed in the hermetically sealed barrier bag. The combination of 
inner packaging, absorbent material, and bag must be placed in a snugly 
fitting metal can.
* * * * *
    15. In Sec.  173.31, revise paragraph (d)(1)(vi) to read as 
follows:


Sec.  173.31  Use of tank cars.

* * * * *
    (d) * * *
    (1) * * *
    (vi) The pressure relief device, including a careful inspection of 
the rupture disc in non-reclosing pressure relief devices, for 
corrosion or damage that may alter the intended operation of the 
device. The rupture disc is not required to be removed prior to visual 
inspection if the tank car contains the residue, as defined in Sec.  
171.8 of this subchapter, of a Class 8, PG II or PG III material with 
no subsidiary hazard or the residue of a Class 9 elevated temperature 
material;
* * * * *
    16. In Sec.  173.306, redesignate paragraph (k) as paragraph (l) 
and add new paragraph (k) to read as follows:


Sec.  173.306  Limited quantities of compressed gases.

* * * * *
    (k) Aerosols for recycling or disposal. Aerosols, as defined in 
Sec.  171.8 of this subchapter, containing a limited quantity which 
conforms to the provisions of paragraph (a)(3), (a)(5), (b)(1), (b)(2), 
or (b)(3) of this section are not subject to the 30 kg (66 pounds) 
gross weight limitation for strong outer packaging when transported by 
motor vehicle for purposes of recycling or disposal under the following 
conditions:
    (1) The strong outer packaging must not exceed a gross weight of 
500 kg (1,100 pounds);
    (2) Each aerosol container must be secured with a cap to protect 
the valve stem or the valve stem must be removed; and
    (3) The packaging must be offered for transportation or transported 
by--
    (i) Private or contract motor carrier; or
    (ii) Common carrier in a motor vehicle under exclusive use for such 
service.
    (l) For additional exceptions, also see Sec.  173.307.
    17. Add new Sec.  173.310 to read as follows:


Sec.  173.310  Exceptions for radiation detectors.

    Radiation detectors, radiation sensors, electron tube devices, or 
ionization chambers, herein referred to as ``radiation detectors,'' 
that contain only Division 2.2 gases, are excepted from the 
specification packaging in this subchapter and, except when transported 
by air, from labeling and placarding requirements of this subchapter 
when designed, packaged, and transported as follows:
    (a) Radiation detectors must be single-trip, hermetically sealed, 
welded metal inside containers that will not fragment upon impact.
    (b) Radiation detectors must not have a design pressure exceeding 
4.83 MPa (700 psig) and a maximum capacity exceeding 355 fluid ounces 
(641 cubic inches). They must be designed and fabricated with a burst 
pressure of not less than three times the design pressure if the 
radiation detector is equipped with a pressure relief device, and not 
less than four times the design pressure if the detector is not 
equipped with a pressure relief device.
    (c) Radiation detectors must be shipped in a strong outer packaging 
capable of withstanding a drop test of at least 1.2 meters (4 feet) 
without breakage of the radiation detector or rupture of the outer 
packaging. If the radiation detector is shipped as part of other 
equipment, the equipment must be packaged in strong outer packaging or 
the equipment itself must provide an equivalent level of protection.
    (d) Emergency response information accompanying each shipment and 
available from each emergency response telephone number for radiation 
detectors must identify those receptacles that are not fitted with a 
pressure relief device and provide appropriate guidance for exposure to 
fire.

PART 174--CARRIAGE BY RAIL

    18. The authority citation for part 174 continues to read as 
follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.

    19. In Sec.  174.81, revise paragraph (c) to read as follows:


Sec.  174.81  Segregation of hazardous materials.

* * * * *
    (c) Except as provided in Sec.  173.12(e) of this subchapter, 
cyanides, cyanide mixtures or solutions may not be stored, loaded and 
transported with acids; Division 4.2 materials may not be stored, 
loaded and transported with Class 8 liquids; and Division 6.1 Packing 
Group I, Hazard Zone A material may not be stored, loaded and 
transported with Class 3 material, Class 8 liquids, and Division 4.1, 
4.2, 4.3, 5.1 or 5.2 material.
* * * * *

PART 176--CARRIAGE BY VESSEL

    20. The authority citation for part 176 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

    21. In Sec.  176.83, revise paragraph (a)(11) to read as follows:


Sec.  176.83  Segregation.

    (a) * * *
    (11) Certain exceptions from segregation for waste cyanides or 
waste cyanide mixtures or solutions transported with acids; waste 
Division 4.2 materials transported with Class 8 liquids; and waste 
Division 6.1 Packing Group I, Hazard Zone A material transported with 
waste Class 3 material, Class 8 liquids, and Division 4.1, 4.2, 4.3, 
5.1 or 5.2 material.
* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    22. The authority citation for part 177 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.


[[Page 68015]]


    23. In Sec.  177.848, revise paragraph (c) to read as follows:


Sec.  177.848  Segregation of hazardous materials.

* * * * *
    (c) In addition to the provisions of paragraph (d) of this section 
and except as provided in Sec.  173.12(e) of this subchapter, cyanides, 
cyanide mixtures or solutions may not be stored, loaded and transported 
with acids; Division 4.2 materials may not be stored, loaded and 
transported with Class 8 liquids; and Division 6.1 Packing Group I, 
Hazard Zone A material may not be stored, loaded and transported with 
Class 3 material, Class 8 liquids, and Division 4.1, 4.2, 4.3, 5.1 or 
5.2 material.
* * * * *

PART 179--SPECIFICATIONS FOR TANK CARS

    24. The authority citation for part 179 continues to read as 
follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.

    25. Revise Sec.  179.13 to read as follows:


Sec.  179.13  Tank car capacity and gross weight limitation.

    Except as provided in this section, tank cars, built after November 
30, 1970, or any existing tank cars that are converted, may not exceed 
34,500 gallons (130,597 L) capacity or 263,000 pounds (119,295 kg) 
gross weight on rail.
    (a) For other than tank cars containing poisonous-by-inhalation 
material, a tank car may be loaded to a gross weight on rail of up to 
286,000 pounds (129,727 kg) upon approval by the Associate 
Administrator for Safety, Federal Railroad Administration (FRA). Tank 
cars must conform to the conditions of the approval and must be 
operated only under controlled interchange conditions agreed to by 
participating railroads.
    (b) Tank cars containing poisonous-by-inhalation material meeting 
the applicable authorized tank car specifications listed in Sec.  
173.244(a)(2) or (3), or Sec.  173.314(c) or (d) may have a gross 
weight on rail of up to 286,000 pounds (129,727 kg). Tank cars 
exceeding 263,000 pounds and up to 286,000 pounds gross weight on rail 
must meet the requirements of AAR Standard S-286, Free/Unrestricted 
Interchange for 286,000 lb Gross Rail Load Cars (IBR; see Sec.  171.7 
of this subchapter). Any increase in weight above 263,000 pounds may 
not be used to increase the quantity of the contents of the tank car.

    Issued in Washington, DC, on December 7, 2009 under authority 
delegated in 49 CFR part 1.
Magdy El-Sibaie,
Acting Associate Administrator for Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration.
[FR Doc. E9-30280 Filed 12-21-09; 8:45 am]

BILLING CODE 4910-60-P
