[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Rules and Regulations]
[Pages 27205-27216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11570]


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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: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
amending the Hazardous 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 revisions in this final rule 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: Effective Dates: The effective date of these amendments is 
October 1, 2010.
    Voluntary Compliance: Voluntary compliance with the provisions of 
this final rule is authorized June 14, 2010.

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
II. Overview of Amendments
III. Summary Review of Amendments
IV. Regulatory Analyses and Notices

I. Background

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
is amending 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 
provide the regulated community with a certain amount of flexibility in 
meeting safety requirements. Even so, 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, effectively, and safely 
integrate new products and technologies into production and the 
transportation stream. Thus, special permits provide a mechanism for 
testing new technologies, promoting increased transportation efficiency 
and productivity, and ensuring global competitiveness. Hazardous 
materials transported under the terms of a special permit must achieve 
a level of safety at least equal to the level of safety achieved when 
transported under the HMR. Implementation of new technologies and 
operational techniques enhances safety because the authorized 
operations or activities may 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 or operations conducted under a 
special permit; potential 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 final rule have 
hundreds of party status grantees. Party status is granted to a person 
who would like to offer for transport or transport a hazardous 
material, or perform an operation in association with a hazardous 
material in the same manner as the original applicant. Several special 
permits addressed in this final rule 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 in this final rule 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 those renewal 
applications. These amendments also apply to any special permits this 
agency issues during the development of this final rule whose 
provisions are identical in every respect to those described in the 
rulemakings issued under this docket. To emphasize this, we preface the

[[Page 27206]]

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 final rule may be 
incorporated under these amendments.
    Incorporation of the special permits into the HMR also eliminates a 
significant paperwork burden. As a condition of a special permit issued 
by PHMSA and depending on the provisions of the special permit, a copy 
of each special permit must be: (1) Maintained at each facility where 
an operation is conducted or a packaging is manufactured under a 
special permit; (2) maintained at each facility where a package is 
offered or re-offered for transportation under a special permit; and 
(3) in some cases, carried aboard each transport vehicle used to 
transport a hazardous material under a special permit.

II. Notice of Proposed Rulemaking

    On December 22, 2009, PHMSA published a notice of proposed 
rulemaking (NPRM; 75 FR 68004) proposing to incorporate a number of 
special permits into the HMR. The proposed revisions included the 
following:
    <bullet> Authorize cargo vessel transportation for salvage 
cylinders containing damaged or leaking packagings under Sec.  173.3.
    <bullet> 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 under Sec.  173.5a.
    <bullet> Authorize the transport of waste Division 4.2, Packing 
Group (PG) I material and Division 5.2 (organic peroxide) material in 
lab packs under Sec.  173.12.
    <bullet> 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) as the outer packaging for waste Division 4.2, 
PG I material and as an overpack for Division 6.1, PG I, Hazard Zone A 
material under Sec.  173.12.
    <bullet> Except waste hazardous materials, packaged in lab packs 
and meeting additional conditions, and Division 6.1 PG I (Hazard Zone 
A) material packaged in accordance with Sec.  173.226(c) from certain 
segregation and marking requirements under Sec.  173.12.
    <bullet> Allow variation in the packing method for packagings 
prepared in accordance with Sec.  173.13.
    <bullet> 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 Sec.  173.31.
    <bullet> 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.
    <bullet> Allow a greater gross weight limitation for packages used 
for the transport of aerosols for purposes of recycling or disposal 
under Sec.  173.306.
    <bullet> Allow rail tank cars to exceed the gross weight on rail 
limitations upon approval from the Federal Railroad Administration 
(FRA) under Sec.  179.13.
    <bullet> Eliminate several requirements for submitting duplicate 
copies of applications for special permit, party status, or renewal 
when the applications are submitted electronically.
    <bullet> Require certification of understanding of a special permit 
for persons submitting an application for party status to a special 
permit.
    The following companies and organizations submitted comments on the 
NPRM:

    (1) Alcoa (Alcoa)
    (2) All-Pak (All-Pak)
    (3) Arkema, Inc. (Arkema)
    (4) The Association of American Railroads (AAR)
    (5) Baker Petrolite Corporation (BPC)
    (6) The Chlorine Institute (CI)
    (7) E.I. DuPont de Nemours and Company (Dupont)
    (8) Fibre Box Association (FBA)
    (9) National Association of Chemical Distributors (NACD)
    (10) Utility Solid Waste Activities Group (USWG)
    (11) Western Regional Group (WRG)

    The commenters generally supported the proposals in the NPRM. Some 
commenters opposed the incorporation of certain special permits. A 
detailed discussion of the comments follows. (Note that comments beyond 
the scope of this rulemaking are not addressed in this final rule.)

III. Summary Review of Amendments

A. Salvage Cylinders

    Damaged or leaking cylinders containing a Division 2.1, 2.2, 2.3, 
or 6.1, or Class 3 or 8 material may be overpacked in a salvage 
cylinder and transported by motor vehicle for repair or disposal (see 
Sec.  173.3(d)). In the NPRM, PHMSA proposed to permit salvage 
cylinders to also be transported by cargo vessel for purposes of repair 
or disposal, consistent with the provisions of DOT-SP 14168. One 
commenter (CI) supported the proposal; no commenters opposed the 
proposal. We are adopting the amendment as proposed.

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, 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% of 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. In the NPRM, PHMSA proposed 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. No commenters 
addressed this proposal; therefore, in this final rule, PHMSA is 
adopting the provision as proposed.
    Additionally, for consistency with use of the acronym ``MAWP'' 
(meaning maximum allowable working pressure) in other provisions of the 
HMR, in Sec.  173.5a, paragraph (b)(2)(iv), in this final rule, PHMSA 
is revising the wording ``maximum service pressure'' to read ``MAWP.'' 
Finally, for greater understanding and use of the provisions

[[Page 27207]]

of Sec.  173.5a(b), we are adding a definition for ``Mechanical 
displacement meter prover'' in Sec.  171.8. 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

    Certain waste materials are excepted from specification packaging 
requirements when transported in packagings (``lab packs'') that 
conform to the requirements specified in paragraph (b) of Sec.  173.12. 
Currently, the outer packaging of the lab packs must be a specification 
UN 1A2 or UN 1B2 metal drum, UN 1D plywood drum, UN 1G fiber drum, or 
UN 1H2 plastic drum tested to the PG III performance level. In the 
NPRM, PHMSA proposed 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 PG 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. PHMSA also proposed to 
allow the use of a UN 11G 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 permits include DOT-SP 
12296, 12668, 12682, 12749, and 12826.
    Certain hazardous materials packaged in lab packs conforming to 
Sec.  173.12(b) are excepted from segregation requirements in Parts 
174, 176, and 177 of the HMR provided the materials conform to the 
segregation requirements in Sec.  173.12(e). In the NPRM, PHMSA 
proposed to except certain additional waste hazardous 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 DOT-SP 13192 have authorized the 
transport of additional hazardous materials not currently authorized 
for transport under Sec.  173.12. These hazardous materials include 
Division 4.2 PG I material (subject to more stringent outer packaging 
requirements), Division 5.2 (organic peroxide) material, and Division 
6.1 PG I (Hazard Zone A) material (for purposes of exception from 
segregation requirements only). Experience with DOT-SP 13192 suggests 
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.
    Two commenters (Dupont, NACD) supported adoption of these 
amendments. Thus, in this final rule, PHMSA is authorizing the 
transport of Division 4.2 PG I material and Division 5.2 (organic 
peroxide) material in lab packs, and the transport of waste Division 
6.1 PG 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 specification UN steel or plastic drum at 
the PG I performance level. In addition, for greater clarity, we are 
making several conforming amendments to the segregation requirements in 
Parts 174, 176, and 177 to specify that the requirements do not apply 
to Division 6.1 PG I (Hazard Zone A) material transported in 
conformance with Sec.  173.12(e).

D. Excepted Packaging

    Conditions for transport of hazardous materials in non-
specification packaging are outlined in Sec.  173.13. Currently, for 
packaging of liquids, the 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 chemically compatible absorbent material and then 
placed in a hermetically sealed barrier bag which is then placed in a 
metal can. In the NPRM, PHMSA proposed to incorporate this alternative 
method of packing inner packagings for liquids into Sec.  173.13. This 
proposal was drawn from the same provision in the following special 
permits: DOT-SP 7891, 8249, 9168, 10672, 10962, 10977, 11248, 12401, 
13355.
    One commenter (All-Pak) opposed adoption of this amendment. All-
Pak's understanding from the preamble of the December 2009 NPRM is that 
a number of existing special permits would be cancelled through the 
adoption of this brief amendment into Sec.  173.13. All-Pak does not 
support termination of the affected special permits and believes the 
special permits should remain in effect because they include additional 
provisions, such as stronger packaging requirements and authorization 
to transport additional materials.
    All-Pak is correct that the provisions outlined in the listed 
special permits are broader in scope and more varied than the 
requirements of Sec.  173.13. In this final rule, PHMSA is amending 
Sec.  173.13 to allow the alternative packaging configuration in which 
the inner packaging for liquids may first be wrapped in absorbent 
material and then placed in a hermetically sealed barrier bag prior to 
placement in a metal can. Based on the comments presented and our 
review of this section, the affected special permits are not being 
incorporated in total under this final rule.

E. Visual Inspection of Rail Tank Cars

    The HMR specify requirements for use of rail tank cars transporting 
hazardous materials in Sec.  173.31. 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 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), PG II or III material 
with no subsidiary hazard (at no more than three percent of capacity of 
the tank car) or the residue of Class 9 molten sulfur. Based on the 
safety record of use of the special permits, in the December 2009 NPRM, 
we proposed 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. For 
purposes of

[[Page 27208]]

the HMR, ``residue'' means the hazardous material remaining in a 
packaging after its contents have been unloaded to the maximum extent 
possible (see Sec.  171.8). Additionally, 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 rail tank car pressure relief device due to the failure of a rupture 
disc during transportation.
    Two commenters (CI, Dupont) supported the adoption of this 
proposal. One commenter (AAR) opposed the adoption of this provision on 
the basis that if the rupture disc is not removed, there is no way to 
tell whether: (1) A gasket is present; (2) the seats of the disc and 
the safety vent mounting flange are in proper condition; and (3) the 
fitting has the required surge protection. AAR provided a summary of 
data on non-accident releases involving rail tank cars with residue 
Class 8, PG II or III material (with no subsidiary hazard) and Class 9 
material over a five-year period (January 2005 to January 2010). 
Analysis of the data indicates six non-accident releases in which the 
cause listed is the corrosion of the rupture disc. AAR noted these six 
non-accident releases could have been prevented had the rupture disc 
been inspected before the residue tank car was returned.
    AAR added that:

    some discs have their ratings on their side and some have 
rating[s] around the outer top circumference, which * * * can be 
hidden by the retainer device. How does one insure the disc is rated 
properly? The current regulations require the shipper to ensure that 
all fittings are in proper condition for transportation and it is 
not clear how that is possible without an inspection of the rupture 
disc.

    PHMSA appreciates AAR's concern regarding the risks of transporting 
these materials in rail cars with pressure relief devices that may have 
corroded components. However, there are other measures for identifying 
possible corrosion problems, including conducting a thorough inspection 
of the pressure relief device and rupture disc prior to loading of the 
rail tank car and implementing operating procedures for maintenance and 
inspection of the components. PHMSA's review of hazardous materials 
incident reports for the five-year period January 2005-January 2010 
identified one report of an incident involving release of a hazardous 
material due to the corrosion of a rupture disc associated with the 
transport of a residue amount of corrosive material (hydrochloric acid 
solution). PHMSA and the Federal Railroad Administration (FRA) continue 
to believe that there is only a small possibility of release from a 
tank car transporting a residue amount of a Class 8, PG II or III or 
Class 9 elevated temperature material caused by corrosion of the 
rupture disc. Therefore, in this final rule, PHMSA is adopting the 
amendment as proposed.

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 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 the pressurized 
gas contained in these devices to be transported in DOT specification 
cylinders or non-specification containers conforming to Sec.  173.302 
or Sec.  173.306.
    In the NPRM, PHMSA proposed 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. As proposed, 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. Each radiation detector must be 
placed in a strong outer packaging capable of withstanding a minimum 
drop test of 1.2 meters (4 feet) without breaking the device or 
rupturing the outer packaging, or if shipped as part of equipment, that 
the equipment provide equivalent protection. Also, 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 how to manage all the detectors if they 
are exposed to fire. When transported in conformance with these 
conditions, PHMSA proposed to except radiation detectors from the 
specification packaging requirements of the HMR and, except when 
transported by air, from labeling and placarding requirements of the 
HMR. The affected special permits include DOT-SP 9030, 9940, 10407, 
12131, 12415, 13026, 13109 and 13244.
    One commenter (USWAG) specified support for incorporation of DOT-SP 
9940. PHMSA is adopting the amendment as proposed.

G. Aerosols for Recycling or Disposal

    Exceptions from the requirements of the HMR to transport a material 
as a fully regulated compressed gas are specified for limited 
quantities of compressed gases (including in aerosol containers) in 
Sec.  173.306. Conditions for exception include a 30 kg (66 pound) 
gross weight limitation for outer packagings. Under DOT-SP 12842, 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 to prevent the accidental discharge 
of the contents. Based on the safe record of transportation of these 
aerosol containers under this special permit; and based on the 
condition 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 the December 2009 NPRM, PHMSA proposed, 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.
    Two commenters (Alcoa, USWAG) supported this amendment. 
Additionally, Alcoa suggested revising paragraph (k)(2) relating to the 
requirement to protect against

[[Page 27209]]

accidental discharge to more closely align with DOT-SP 12842. Alcoa 
stated:

    we believe it preferable to take a more ``performance based'' 
approach to the provision requiring protection from accidental 
discharge in order to allow other equally effective means (as 
compared to only protective caps or removal of the valve stem) to be 
employed. In this regard, we suggest that the provision concerned 
should instead read: ``Each aerosol container is protected against 
accidental discharge, such as by a protective cap over the valve 
stem, or, if without a protective cap, by removal of the valve stem, 
or any other measure that prevents accidental discharge.''

Alcoa also suggested removing the limitation that motor vehicle 
transport must be by private or contract motor carrier or common 
carrier under exclusive use found in paragraph (k)(3) so there no 
longer is a need for DOT-SP 11396.

    The proposed requirement to protect against accidental discharge is 
based on the specific conditions outlined in DOT-SP 12842, that each 
aerosol container must be shipped with a protective cap to protect the 
valve stem, or if no protective cap is available, the valve stem must 
be removed from the can. The safe history of use of the special permit 
is due in large part to the conditions of the special permit. Alcoa did 
not provide specific examples of alternative methods to protect against 
accidental discharge. Without evidence of other measures to prevent 
accidental discharge that provide an equivalent level of safety to 
protective caps or removal of the valve stem, PHMSA is reluctant to 
adopt a performance standard.
    PHMSA also disagrees with the suggestion to remove the limitation 
for private or contract motor carrier or common carrier under exclusive 
use, thereby eliminating the need for DOT-SP 11396. The modal 
limitation provides a greater level of safety by requiring a greater 
level of control over shipments.
    In this final rule, PHMSA is adopting the provision as proposed in 
the NPRM. Note that PHMSA is revising the language in Sec.  
173.306(k)(1) to clarify that the gross weight limitation of 500 kg 
(1,100 pounds) applies to the strong outer packaging and its contents, 
not just the strong outer packaging as written in the NPRM.

H. Rail Tank Car Gross Weight Limitation

    The HMR include limitations on rail tank car capacity and gross 
weight in Sec.  179.13. 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 has 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. In the NPRM, 
PHMSA proposed to revise this section to provide rail carriers with 
relief from the rail tank car gross weight limitation 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.
    Three commenters (AAR, CI, Dupont) supported adoption of this 
amendment. However, the commenters suggested that the final rule should 
include specific procedures for obtaining the specified approval.
    We disagree. FRA has established guidelines for applications for 
authority to transport rail tank cars that are over specified gross 
weight limitations in a document entitled ``Maximizing Safety and 
Weight.'' The document instructs applicants to consider safety-related 
items for both new construction and for existing equipment that include 
the following topics: (1) Puncture resistance; (2) controlling 
longitudinal loading; (3) structural-worthiness; (4) track-worthiness; 
(5) service equipment; (6) service reliability and maintenance 
management; and (7) maximizing safety and weight. This document may be 
reviewed at http://www.fra.dot.gov/Pages/1800.shtml. In addition, FRA 
plans to develop risk-based guidance for persons applying for an 
approval to authorize a gross weight greater than 263,000 pounds and up 
to 286,000 pounds.
    Therefore, in this final rule, PHMSA is adopting the amendment as 
proposed.

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 final rule, the phrase ``agent for 
service of process'' is added 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 final rule, we 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. The same revision to the definition for 
``Special Permit'' is made in Sec.  171.8.
    Currently, an application for a special permit must be submitted in 
duplicate no matter the method of submission, whether mail, fax, or e-
mail (see Sec.  107.105). In this final rule, PHMSA is revising Sec.  
107.105(a)(1) 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. PHMSA is also revising Sec.  107.105(a)(2) to 
require an e-mail address if available and the DOT registration number, 
if applicable. Application procedures for party status to a special 
permit are set forth in Sec.  107.107. In this final rule, PHMSA is 
revising Sec.  107.107(b)(1) 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 is revising paragraph Sec.  
107.107(b)(3) to require an e-mail address if available and the DOT 
registration number, if applicable. In addition, PHMSA will 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.
    Application procedures for renewal of a special permit are set 
forth in Sec.  107.109. In this final rule, PHMSA is revising Sec.  
107.109(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 by e-mail.

IV. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule 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

[[Page 27210]]

equal to the safety level required under the law, or consistent with 
the public interest, if a required safety level does not exist. The 
final rule amends the regulations by incorporating provisions 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 final 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 final rule is not considered a significant rule under 
the Regulatory Policies and Procedures order issued by the Department 
of Transportation [44 FR 11034].
    In this final rule, PHMSA amends the HMR to incorporate 
alternatives this agency has permitted under widely used and 
longstanding special permits with established safety records that 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 final rule will reduce the paperwork burden on industry and this 
agency resulting from putting an end to the need for renewal 
applications for special permits. Taken together, the provisions of 
this final 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 final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
final 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 designing, manufacturing, fabricating, inspecting, marking, 
maintaining, reconditioning, repairing, or testing a package, container 
or packaging component that is represented, marked, certified, or sold 
as qualified for use in transporting hazardous material in commerce.
    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 final rule and not later 
than two years after the date of issuance. The effective date of 
federal preemption will be 90 days from publication of the final rule 
in this matter in the Federal Register.

D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final 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 
final 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, PHMSA certifies this rule will not have a significant 
economic impact on a substantial number of small entities.
    This final 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 final rule 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 final rule identifies a revised information collection request 
that PHMSA will submit to OMB for approval based on the requirements in 
this final rule. PHMSA has developed burden estimates to reflect 
changes in this final rule. PHMSA estimates that the information 
collection and recordkeeping burden of this final rule is 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.
    Requests for a copy of this information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous 
Materials

[[Page 27211]]

Standards (PHH-11), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.

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 final 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 (PGs) based upon its degree of hazard, from a high hazard PG I 
material to a low hazard PG III material. The quality, damage 
resistance, and performance standards for the packagings authorized for 
the hazardous materials in each PG 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 
amendments in this final rule. We are making clarifications and changes 
to certain HMR requirements to include methods for packaging 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.

0
In consideration of the foregoing, we are amending 49 CFR Chapter I as 
follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

0
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]

0
2. In Sec.  105.40, in the paragraph (b), introductory text, after the 
word ``agent'', add the words and punctuation ``, also known as ``agent 
for service of process''.''

[[Page 27212]]

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
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.


0
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.
* * * * *

0
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: 
<a href="/cdn-cgi/l/email-protection#cb98bbaea8a2aaa7bbaeb9a6a2bfb88bafa4bfe5aca4bd"><span class="__cf_email__" data-cfemail="603310050309010c1005120d09141320040f144e070f16">[email protected]</span></a>. 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.
* * * * *

0
6. In Sec.  107.107, revise paragraphs (b)(1), (b)(3), (b)(4), and 
(b)(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: 
<a href="/cdn-cgi/l/email-protection#13406376707a727f6376617e7a676053777c673d747c65"><span class="__cf_email__" data-cfemail="74270411171d1518041106191d000734101b005a131b02">[email protected]</span></a>. Electronic submissions need not be submitted in 
duplicate;
* * * * *
    (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.
* * * * *

0
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: 
<a href="/cdn-cgi/l/email-protection#95c6e5f0f6fcf4f9e5f0e7f8fce1e6d5f1fae1bbf2fae3"><span class="__cf_email__" data-cfemail="f1a281949298909d8194839c988582b1959e85df969e87">[email protected]</span></a>. 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

[[Page 27213]]

or packages shipped, as the case may be, and number of shipments or 
packages 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

0
8. The authority 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.


0
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

0
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.


0
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 cargo vessel 
only.
* * * * *

0
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''.

[[Page 27214]]


0
13. In Sec.  173.12, revise paragraphs (b) and (e), redesignate 
paragraph (f) as new 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) General restrictions. 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).

[[Page 27215]]

    (f) Additional exceptions. Lab packs conforming to the requirements 
of this section are not subject to the following:
    (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.

0
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.
* * * * *

0
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;
* * * * *
0
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 when transported by motor vehicle for purposes 
of recycling or disposal under the following conditions:
    (1) The strong outer packaging and its contents 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.

0
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 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

0
18. The authority citation for part 174 continues to read as follows:

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


0
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

0
20. The authority citation for part 176 continues to read as follows:

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

0
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 are set forth in Sec.  173.12(e) of this 
subchapter.
* * * * *

[[Page 27216]]

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
22. The authority citation for part 177 continues to read as follows:

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


0
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

0
24. The authority citation for part 179 continues to read as follows:

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


0
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 May 7, 2010, under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2010-11570 Filed 5-13-10; 8:45 am]
BILLING CODE 4910-60-P


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