21084 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

The Department expects the economic

impact of this rule to be minimal. This

rule does not represent a significant

departure from the current ratemaking

process, and there are no expected

increases in costs. Therefore, a full

regulatory evaluation is not necessary.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601 et seq.), the Department

must consider whether this final rule

will have a significant economic impact

on a substantial number of small

entities. ‘‘Small entities’’ include

independently owned and operated

small businesses that are not dominant

in their field and that otherwise qualify

as ‘‘small business concerns’’ under

section 3 of the Small Business Act (15

U.S.C. 632). One commenter believes

that this rule will have a significant

economic impact on a substantial

number of small entities. However, the

commenter did not elaborate on why

this impact would occur. Since this rule

is not a major change from past

rulemaking practices, and only three

pilot associations with a total of

approximately 40 members will be

directly affected by this rule, this final

rule should have little or no impact on

small entities that pay pilotage rates or

that receive income from pilotage rates.

Because it expects the impact of this

proposal to be minimal, the Department

certifies under 5 U.S.C. 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.) that this final rule will not have

a significant economic impact on a

substantial number of small entities.

Collection of Information

This rule contains collection-ofinformation requirements. The

Department has submitted the

requirements to the Office of

Management and Budget (OMB) for

review under section 3504(h) of the

paperwork Reduction Act (44 U.S.C.

3501 et seq.), and OMB has approved

them. The part numbers are parts 401

and 403 and the corresponding OMB

approval number is OMB Control

Number 2115–0616.

Federalism

The Department has analyzed this

final rule under the principles and

criteria contained in Executive Order

12612, and has determined that this rule

does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment. State action

addressing pilotage regulation is

preempted by 46 U.S.C. 9306, which

provides that a State or political

subdivision of a State may not regulate

or impose any requirement on pilotage

on the Great Lakes.

Environment

The Department considered the

environmental impact of this final rule

and concluded that this rule is

categorically excluded from further

environmental documentation under

section 2.B.2 of Commandant

Instruction M16475.1B. The rule is

procedural in nature because it deals

exclusively with ratemaking and

accounting procedures. Therefore, this

is included in the categorical exclusion

in subsection 2.B.2.1,—Administrative

actions or procedural regulations and

policies which clearly do not have any

environmental impact. A Categorical

Exclusion Determination has been

placed in the docket.

List of Subjects in 46 CFR Parts 403 and

404

Administrative practice and

procedure, Great Lakes, Navigation

(water), Penalties, Reporting and

recordkeeping requirements, Seamen.

For reasons set out in the preamble,

the Department proposes to amend Parts

403 and 404 of Title 46 of the Code of

Federal Regulations as follows:

PART 403—[AMENDED]

1. The authority citation for part 403

continues to read as follows:

Authority: 46 U.S.C. 8105, 9303, 9304; 49

CFR 1.46.

2. Section 403.300(b) is revised to

read as follows:

§ 403.300 Financial reporting

requirements.

* * * * *

(b) Required Reports:

(1) By April 1 of each year, each

Association shall obtain an annual

unqualified long form audit report for

the preceding year, audited and

prepared in accordance with generally

accepted auditing standards by an

independent certified public

accountant.

(2) Each Association shall forward

their annual unqualified long form audit

report, and any associated settlement

statements, to the Director no later than

April 7 of each year.

PART 404—[AMENDED]

3. Section 404.1(b) is revised to read

as follows:

Authority: 46 U.S.C. 8105, 9303, 9304, 49

CFR 1.46.

§ 404.1 General ratemaking provisions.

* * * * *

(b) Great Lakes pilotage rates shall be

reviewed annually in accordance with

the procedures detailed in Appendix C

to this part. The Director shall review

Association audit reports annually and,

at a minimum, the Director shall

complete a thorough audit of pilot

association expenses and establish

pilotage rates in accordance with the

procedures detailed in § 404.10 of this

part at least once every five years. An

interested party or parties may also

petition the Director for a review at any

time. The petition must present a

reasonable basis for concluding that a

review may be warranted. If the Director

determines, from the information

contained in the petition, that the

existing rates may no longer be

reasonable, a full review of the pilotage

rates will be conducted. If the full

review shows that pilotage rates are

within a reasonable range of their target,

no adjustment to the rates will be

initiated.

Issued at Washington, DC this 2nd day of

May, 1996.

Federico Pen ̃ a,

Secretary of Transportation.

[FR Doc. 96–11499 Filed 5–8–96; 8:45 am]

BILLING CODE 4910–62–P

Research and Special Programs

Administration

49 CFR Parts 107, 171, 173 and 178

[Docket No. HM–207C, Amdt. Nos. 107–38,

171–141, 173–249, and 178–113]

RIN 2137–AC63

Exemption, Approval, Registration and

Reporting Procedures; Miscellaneous

Provisions

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Final rule.

SUMMARY: In this final rule, RSPA

revises procedures for applying for

exemptions and establishes procedures

for applying for approvals, and

registering and filing reports with RSPA.

In addition, RSPA amends certain

provisions, mostly procedural, in the

Hazardous Materials Regulations. This

rulemaking action is intended to

expedite processing of applications and

to promote clarity and program

consistency. It is part of the President’s

Regulatory Reinvention Initiative to

revise all agency regulations that are in

need of reform.

DATES: Effective date: The effective date

of these amendments is October 1, 1996.

Compliance date: Voluntary

compliance with the regulations, as
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21085

amended herein, is authorized as of July

12, 1996.

FOR FURTHER INFORMATION CONTACT:

Kathleen Stokes Molinar, Office of the

Chief Counsel, (202) 366–4400, or Diane

LaValle, Office of Hazardous Materials

Standards, (800) 467–4922, RSPA,

Department of Transportation, 400 7th

Street, SW, Washington, DC 20590–

0001.

SUPPLEMENTARY INFORMATION:

I. Background

The Federal hazardous material

transportation law (Federal hazmat law;

49 U.S.C. 5101–5127) directs the

Secretary of Transportation to prescribe

regulations for the safe transportation of

hazardous materials in commerce. RSPA

is the agency within the Department of

Transportation primarily responsible for

implementing the Federal hazmat law.

RSPA does so through the Hazardous

Materials Regulations (HMR; 49 CFR

Parts 171–180). Under 49 U.S.C.

5117(a), RSPA is authorized to issue an

exemption from specific requirements of

the Federal hazmat law or the HMR if

an applicant demonstrates that public

safety will not be compromised. The

procedures governing application for an

exemption and the manner in which the

application is processed are found at 49

CFR part 107, subpart B.

In numerous instances, the HMR

require approval by, or registration with,

RSPA before a person may engage in

particular hazmat transportation-related

activities in areas such as manufacturing

and certifying hazardous material

packagings, offering hazardous materials

for transportation, and transporting

hazardous materials. The HMR also

impose reporting requirements on

persons engaging in certain hazardous

materials transportation activities. A

significant portion of the regulated

community is subject to one or more of

these requirements. Procedures to be

followed in seeking an approval from

RSPA, registering with RSPA, or

reporting to RSPA are often found in the

HMR provision establishing the

particular requirement, but in many

cases these procedures are absent or

incomplete.

This final rule revises procedures for

exemptions in subpart B of part 107 and

establishes procedures for approvals,

registrations and reports in subpart H of

part 107. Establishment of formal

procedures for approval, registration,

and reporting activities provides

uniform and consistent guidance to all

those who may be subject to these

requirements in the HMR, and fosters

consistency in RSPA’s handling of these

matters. Additionally, this final rule

minimizes RSPA’s need to seek

additional information from applicants

in order to complete the processing of

these matters.

The procedures adopted in this final

rule for approvals, registrations, and

reports are limited in their application.

Other Federal agencies (e.g., the United

States Coast Guard (USCG) and the

Federal Railroad Administration (FRA))

issue approvals or receive registrations

or reports under the HMR. For example,

under § 176.415, persons are required to

obtain approvals from the USCG before

loading or unloading certain explosives

onto or from vessels. The procedures

established in this rule apply only with

respect to those matters under the HMR

that are handled by RSPA. Those

matters for which the HMR assign

responsibility to other entities will

continue to be handled according to the

procedures of those entities.

II. Regulatory Reinvention Initiative

In a March 4, 1995 memorandum, the

President directed Federal agencies to

review all agency regulations and

eliminate or revise those that are

outdated or in need of reform. On April

4, 1995 (60 FR 17049), and July 28, 1995

(60 FR 38888), RSPA issued notices

requesting comments on regulatory

reform and announcing several public

meetings nationwide to identify

obsolete and burdensome regulations

that can be eliminated from the HMR

and techniques to improve RSPA’s

customer services. Some of the

commenters responding to those notices

and participating in the public meetings

identified the exemption and approval

procedures as areas in need of

clarification and reform. This rule is

consistent with the goals of the

President to clarify and revise Federal

agency regulations to relieve

unnecessary regulatory burdens and to

clarify regulatory requirements.

III. Summary of Comments and

Regulatory Changes

On September 14, 1995, RSPA

published a notice of proposed

rulemaking (NPRM) under Docket HM–

207C (60 FR 47723). In the NPRM,

RSPA proposed to revise the exemption

procedures of subpart B of part 107 and

adopt new procedures in subpart H of

part 107 for approvals, registration, and

reporting information to RSPA.

RSPA received 16 comments to the

NPRM from offerors and carriers of

hazardous materials, chemical and

packaging manufacturers, consulting

firms, and the United States Department

of Energy. Commenters were generally

supportive of RSPA’s effort to revise and

clarify the procedures for exemptions

and establish procedures for approvals,

registration, and reporting. The

comments and RSPA’s response to them

are discussed below.

Part 107

Subpart A—General Provisions

§ 107.3 Definitions.

Commenters requested clarification of

the difference between approvals and

exemptions and, further, requested that

RSPA explain the difference between an

approval and a competent authority

approval. An approval is a written

authorization to take some action

delineated in a particular regulation

(e.g., § 173.21) in the HMR and is

specifically authorized in that

regulation. Approvals generally are

limited in scope, such as in

§ 178.604(b)(2) that authorizes an

applicant to apply for an approval to

deviate from the number of samples

used in conducting a leakproofness test.

Because issuance of all approvals is

specifically recognized in the HMR and

almost all approval documents can be

made available for public review,

applications are not published in the

Federal Register.

Sections 171.11 and 171.12 authorize

compliance with international standards

(i.e., the International Civil Aviation

Organization’s Technical Instructions

for the Safe Transport of Dangerous

Goods by Air (ICAO Technical

Instructions) and the International

Maritime Dangerous Goods Code (IMDG

Code)) as an alternative to compliance

with certain provisions of the HMR. For

certain types of activities, both the ICAO

Technical Instructions and the IMDG

Code have provisions which require that

the activity be approved by the

competent authority of the country of

origin. The Associate Administrator for

Hazardous Materials Safety (Associate

Administrator), RSPA, is the competent

authority for the United States of

America (see the definition of

‘‘competent authority’’ in 49 CFR

§ 171.8).

A competent authority approval

means an approval by the competent

authority which is required under the

provisions of international regulations,

such as the ICAO Technical Instructions

or the IMDG Code. To the extent that it

satisfies the requirement of the

international regulations, any of the

following may serve as a competent

authority approval: a specific regulation

of subchapter A or C, an exemption or

approval issued under the provisions of

subchapter A or C, or a separate

document issued to one or more persons

by the Associate Administrator. In other

words, if an activity is authorized for

international transport under the HMR,
21086 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

then the HMR serves as the competent

authority approval. An exemption or

approval may serve as a competent

authority approval provided the

exemption or approval does not prohibit

any international transport. To facilitate

international commerce, for a function

that relates only to a requirement of an

international standard, and not to the

HMR, the Associate Administrator may

issue a competent authority approval as

a separate document that is not related

to either an approval or an exemption

under the HMR.

An exemption allows an applicant to

perform a function which is not

authorized under the HMR and which,

in fact, would be a violation of the HMR

in the absence of the exemption. An

exemption may involve an authorization

to engage in a function for which there

is no provision in the regulations. A

‘‘manufacturing exemption’’ is an

exemption issued to a manufacturer of

packagings who does not offer for

transportation or transport hazardous

materials in packagings subject to the

exemption.

The process of applying for an

exemption, as provided by the Federal

hazardous materials transportation law

(49 USC 5117), requires that the

applicant provide documentation

demonstrating that the proposed process

or activity will meet a level of safety at

least equivalent to that provided by the

HMR or, if the regulations do not

contain a specified level of safety, will

be consistent with the public interest.

Notice of most exemption applications

is published in the Federal Register for

public comment prior to their being

granted or denied.

For clarity, RSPA is adopting

definitions in § 107.3 for ‘‘approval,’’

‘‘competent authority approval,’’

‘‘exemption,’’ and ‘‘manufacturing

exemption’’ to differentiate between

approvals and exemptions and clarify

the types of exemptions and approvals

that are issued.

One commenter requested that the

proposed term ‘‘accident’’ be replaced

with ‘‘incident’’ to avoid confusion. The

commenter stated that the word

‘‘incident’’ is currently used in the HMR

and has the same connotation as the

proposed definition of accident. The

commenter also stated that other modal

agencies within DOT use the term

‘‘accident’’ to mean a collision between

moving vehicles (e.g., the FHWA

expressly defines ‘‘accident’’ as a motor

vehicle collision). RSPA agrees and is

adopting the term ‘‘incident’’ to refer to

an event resulting in the unintended or

unanticipated release of hazardous

material or an event which meets

incident reporting requirements in

171.15 or 171.16.

Another commenter suggested that

RSPA define the term ‘‘registration’’ to

describe what the term includes, rather

than what it does not include. The

commenter recommended that the

wording ‘‘ ‘registration’ does not include

registration under Subpart F or G of this

part’’ be removed. RSPA agrees that

providing examples of the types of

registration covered under this

definition is beneficial and is adding

several examples. RSPA has not granted

the commenter’s request to delete the

language referencing specific

registration requirements that are not

included in the definition. RSPA

believes that this exclusionary language

provides as much guidance as a

description of what types of

‘‘registration’’ are included in the

definition.

No comments were received

concerning other proposed definitions,

and those definitions are adopted as

proposed.

Subpart B—Exemptions

§ 107.101 Purpose and scope. One

commenter requested that all

exemptions be described as ‘‘competent

authority approvals’’ to provide for

greater acceptance outside the United

States since competent authority

approvals are accepted internationally.

An exemption concerns a variance from

the HMR and not the international

regulations. As previously indicated, an

exemption may be used as competent

authority approval to the extent that it

is suitable for international transport

and satisfies the approval requirement

of the applicable international

regulation. However, a number of

exemptions, such as those applicable to

transportation by motor vehicle only,

are not applicable under international

regulations. Therefore, RSPA is not

adopting the commenter’s suggestion.

Another commenter suggested that

RSPA adopt only two procedures: one

for approvals and exemptions, and the

other for registrations and reports. The

commenter contended that the

requirements, procedures, and

justifications related to exemptions and

approvals are sufficiently different that

users of the regulations are better served

by RSPA providing separate, selfcontained provisions for exemptions

and approvals. This commenter added

that since applicants are not always sure

whether to submit an application

requesting an exemption, approval or

registration, RSPA should be

responsible for determining the

appropriate action since the data

required for each is the same. RSPA is

not adopting the commenter’s

suggestion that RSPA determine the

appropriate action for submitted

applications because it is the applicant’s

responsibility to make this

determination and the requirements are

different. By defining the terms

‘‘exemption,’’ ‘‘approval,’’ and

‘‘registration,’’ as well as clarifying the

procedures for obtaining each, RSPA is

assisting applicants in determining the

appropriate action.

One commenter stated that the

exemption procedures do not provide

for carrier exemptions. The commenter

requested that more general procedures

be adopted for carrier exemptions

because the application information

differs from that required for shippers

and packaging manufacturers. For

consistency, RSPA utilizes the same

exemption application procedure for all

applicants (e.g., packaging

manufacturers, shippers, and carriers).

In this final rule, RSPA is clarifying the

types of information required of an

exemption applicant (see preamble

discussion under § 107.105).

Additionally, RSPA is including

language in the rule under the

‘‘emergency processing’’ provisions of

§ 107.117 which should assist carriers

by directing an applicant to seek an

emergency exemption through the

modal office for the proposed initial

mode of transportation.

One commenter strongly

recommended that RSPA incorporate

more exemptions into the HMR to allow

industry more flexibility and reduce the

number of exemptions. The commenter

requested that RSPA explain the

standards which it utilizes to determine

which exemptions are incorporated into

the HMR. The commenter stated that

‘‘making this information [the standards

which RSPA utilizes] public would

provide a clearer picture of the need for

a more flexible regulatory scheme and

give a benchmark on which to assess

efforts to incorporate existing

exemptions.’’

Although RSPA has no formal set of

standards for selecting exemptions to be

converted to regulations of general

applicability, RSPA periodically

reviews existing exemptions to

prioritize them as to their suitability for

conversion to regulations. Whether a

specific exemption is a candidate for

regulatory action depends on any

number of factors, such as the expressed

interest of the exemption holder or

others, the suitability of the exemption

for conversion, rulemaking activity in

related areas, agency priorities, and

whether the process, packaging or

activity authorized by the exemption

has provided a clearly demonstrated
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21087

level of safety equivalent to that which

is provided by the HMR.

Another commenter recommended

that RSPA automatically incorporate

exemptions into the HMR after the

second renewal of the exemption. RSPA

agrees that if an exemption of general

applicability demonstrates a level of

safety equivalent to the HMR, the

provisions of the exemption ultimately

may be suitable for incorporation into

the HMR. However, RSPA is not

adopting the commenter’s

recommendation. As previously

discussed, a number of factors influence

whether an exemption is proposed for

conversion to a regulation.

§ 107.105 Application for

exemption. Commenters supported

RSPA’s proposal to require that

applicants submit exemption

applications in duplicate, rather than

triplicate. Commenters stated that this

amendment would reduce the burden

on applicants, and RSPA is adopting the

requirement as proposed.

One commenter requested that

applicants be required to submit the

application information in numerical

order consistent with the application

procedures so that RSPA can quickly

determine if any information is missing.

While RSPA encourages applicants to

follow the format utilized in the rule

when submitting application materials,

RSPA believes that its personnel can

expeditiously determine the

completeness of an application. Further,

RSPA does not want to place another

requirement on applicants; therefore,

RSPA recommends but is not mandating

use of this commenter’s suggestion.

Another commenter suggested that

proposed § 107.105 (a)(2) and (a)(4) be

combined. Proposed paragraph (a)(2)

requires that an applicant who is not an

individual (i.e., the applicant is a

corporation, partnership, or the like)

designate an agent pursuant to the laws

of the United States. Proposed

paragraph (a)(4), however, requires a

foreign applicant to designate an agent

within the United States. This

paragraph applies to both individuals

and legal entities. To avoid confusion

between an agent for a U.S. applicant

that is not an individual and an agent

for a foreign applicant, RSPA is keeping

the two requirements as separate

paragraphs (a)(2) and (a)(3),

respectively, in this final rule.

One commenter suggested that RSPA

require applicants to provide a Material

Safety Data Sheet (MSDS) or emergency

response information for hazardous

materials in an application to confirm

that this information is consistent with

the Emergency Response Guidebook.

RSPA agrees that an MSDS may contain

useful information, such as hazard

properties of a commodity, for inclusion

in an application and this information

may be needed to justify an application.

RSPA believes that an MSDS is not

necessary in most instances and did not

propose to require MSDS’ or emergency

response information with exemption

applications. Therefore, RSPA is not

adopting the commenter’s suggestion.

Several commenters expressed

concern regarding what they perceive as

the increased quantity and detail of

information required to be included in

an exemption application. Some

commenters stated that supplying this

information would place an undue

burden on applicants and make it more

difficult or even impossible to obtain an

exemption or approval. Without

providing any supporting statistics or

financial data, one commenter stated

that trying to meet some of these

requirements could substantially

increase the paperwork burdens for both

the applicant and RSPA, and the U.S.

Department of Energy (DOE) stated that

the new requirements would impose

severe economic impacts on applicants

who use contractors because the

contractors would have to perform

extensive analyses and compilation of

information to satisfy the new

requirements.

RSPA believes that the administrative

burden on applicants remains

unchanged under proposed § 107.105

and under the provisions adopted in

this final rule. The information and

analyses set forth in this final rule for

exemption applications are essentially

what is required under the Federal

hazmat law and what RSPA historically

has requested, often during the

processing of the exemption. By clearly

specifying this information in the

regulations, RSPA hopes to minimize

delays in application processing and

requests for extra submissions from

applicants occasioned by RSPA’s having

to obtain additional information from

exemption applicants at a later time.

Additionally, the commenters who

raised these ‘‘increased burden’’

arguments have not submitted

supporting documentation

demonstrating that exemption

applicants’ paperwork or economic

burdens will be increased by this

regulatory change. Finally, RSPA notes

that an applicant is not required to

submit information which is

inapplicable to the exemption request or

which is impracticable for the applicant

to obtain. Therefore, RSPA does not

believe that paperwork and economic

burdens upon an exemption applicant

will increase, and is adopting the

regulatory change essentially as

proposed.

Several commenters requested that

RSPA clarify certain information

required in the proposed application

procedures. Specifically, one

commenter recommended that RSPA

consolidate and clarify the information

required in proposed paragraphs (a)(14)

through (a)(18). Another commenter

requested clarification of what is meant

in proposed § 107.105(a)(16) by ‘‘any

increased risk to safety or property that

may result if the exemption is granted.’’

The commenter stated that RSPA needs

to specify the extent of analysis an

applicant is required to provide in the

application. Another commenter

requested that RSPA add language in

proposed paragraphs (a)(16) and (a)(18)

that applicants provide risks that ‘‘are

known or could reasonably have been

expected to be known’’ to clarify that a

‘‘full-blown’’ risk assessment is not

intended by RSPA. Another commenter

added that it is unclear whether an

applicant is required to include the

information in proposed paragraph

(a)(18). The commenter requested that

RSPA add some examples to clarify

when the provision is required.

The Federal hazmat law requires each

person seeking an exemption to provide

a safety analysis that justifies the

exemption (49 U.S.C. 5117(b)). The

information required under § 107.105 is

intended to elicit the information and

analyses necessary to demonstrate that

the requested exemption provides an

equivalent level of safety to that

afforded by the HMR or, if the HMR do

not establish a level of safety, is

consistent with the public interest and

will adequately protect against risk to

life and property.

The safety analyses required to

support exemptions can vary greatly.

The analyses may range from simple

comparative analyses relied upon by an

applicant seeking an exemption which

will permit minor variations in

packaging, to complex risk analyses for

complex packaging systems involving

new technologies or materials of

construction. The risks presented by

new technologies and materials are

often more difficult to evaluate, and

may require a more extensive safety

analysis.

Successful shipping experience may

be useful to support a safety analysis,

but does not necessarily demonstrate

that a particular package or transport

practice provides a level of safety

equivalent to that authorized.

Successful shipping experience may

only indicate that a package was not

subjected to a drop, impact, or fire

during transportation. A safety analysis
21088 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

of a package or transport practice that

includes exposure to normal and

accident environments is a more valid

indication of the level of safety provided

by the package or transport practice,

than simply looking to whether a

history of incidents exists. Therefore,

RSPA is requiring the applicant to

describe all relevant shipping and

incident experience of which the

applicant is aware that relates to the

application. The applicant also must

specify safety control measures (e.g., use

of a private carrier or additional

packaging) necessary to demonstrate

that the proposed package or transport

practice meets a level of safety

equivalent to that afforded by the HMR

and is in the public interest. In response

to commenters’ requests, RSPA is

clarifying the information specified in

proposed paragraphs (a)(16) through

(a)(18).

Several commenters stated that

certain requested information may be

unavailable to the applicant. One

commenter stated that some of the

requested information, such as service

life and performance of an alternative

packaging, constitutes reasons for the

exemption—to find these answers by

authorizing controlled shipments under

an exemption. Commenters stated that

the proposed changes facilitate the

ability of the Associate Administrator to

reject an application not deemed

complete. One commenter stated that, if

an applicant cannot identify a potential

failure mode and its possibility of an

occurrence, the application would be

deemed incomplete and could be

denied.

The proposed language of § 107.105

was intended to expedite processing of

exemption applications for the benefit

of persons seeking exemptions. RSPA

acknowledges that not all information

about a proposed alternative packaging

or activity is available at the time an

exemption is requested. However, an

exemption is granted only when an

applicant has provided sufficient

information to demonstrate that the

requested variation from the regulatory

requirement will afford a level of safety

equivalent to that which is provided by

the HMR. This demonstration must

include information relevant to the

expected service, performance and

limitations of the packaging.

Commenters also stated that certain

information may not be applicable to

some exemptions. For example, some

commenters expressed concern that the

requirement to provide detailed

commodity information (proposed

§ 107.105(a)(12)) may not be necessary

or appropriate for an exemption that

authorizes manufacture of a packaging.

The commenters stated that lack of this

information could result in the rejection

of the application. Commenters

requested that § 107.105 be modified to

indicate that such detailed information

must be included in an application only

when appropriate based on the nature of

the exemption being sought. In response

to commenters’ concerns, RSPA is

requiring the applicant to provide

information in the application only

when it is appropriate to demonstrate

that the proposal meets the statutory

and regulatory standards. Therefore, this

final rule indicates that an applicant

need only submit information that is

relevant to an application.

Other commenters expressed

opposition to RSPA’s proposal to extend

the recommended time period for filing

an exemption application from 120 days

to 180 days before the requested

effective date of the exemption. The

commenters indicated that this

extended deadline appeared to be

contrary to the stated purpose of the

rule—reduction of the processing time

of exemption applications and renewals.

Another commenter requested that

RSPA also issue or deny an exemption

in the same time period when a

properly prepared application is

submitted. RSPA’s proposal was

intended to parallel the Federal hazmat

law requirement, 49 U.S.C. 5117, that

the Secretary of Transportation issue or

renew an exemption for which an

application was filed, or deny such

issuance or renewal, within 180 days

after the first day of the month following

the date of the filing of such application.

RSPA understands that many parties

requesting exemptions cannot anticipate

their needs beyond four months.

Therefore, RSPA is addressing the needs

of its customers by retaining the 120-day

application filing time. However, RSPA

notes that 120 days is often not enough

time for processing an incomplete or

very complicated exemption

application, and encourages parties to

file an application for an exemption as

early as possible.

Another commenter objected to the

proposal to limit the use of

manufacturing exemptions to specific

plants or locations. The commenter

stated that many shippers are also

manufacturers and use more than one

vendor to supply a packaging. The

commenter requested the flexibility to

use alternative suppliers of its

packaging. RSPA did not propose to

limit the use of manufacturing

exemptions to particular plants, but to

require applicants to identify the

location of each facility where an

exemption would be used. It was

RSPA’s intention to limit the

application and definition of a

manufacturing exemption to a

manufacturer of packagings who does

not offer for transportation or transport

hazardous materials in the exemption

packagings it produces (i.e., a business

entity engaged in the manufacturing and

marketing packagings for use by other

entities). A person who manufacturers,

marks and sells packagings under an

exemption may do so at dozens of

facilities without restriction; however,

RSPA is retaining the requirement that

applicants for manufacturing

exemptions identify the location of each

facility where manufacturing under an

exemption will occur. The requirement

does not apply to shippers who produce

packagings for their own use.

Based on the foregoing, RSPA is

revising the exemption application

procedures essentially as proposed with

modifications as described above,

reformatting of the section and revising

of certain provisions to make them less

burdensome.

§ 107.107 Application for party

status. This section is adopted

essentially as proposed. Paragraph (a)(4)

is revised to delete an information

requirement pertaining to consent to

U.S. jurisdiction. Paragraph (c) is

revised to reference § 107.113 (e) and (f)

for the manner by which the Associate

Administrator grants or denies

applications.

§ 107.109 Application for renewal.

This section is adopted essentially as

proposed. One commenter requested

that one renewal application suffice for

all parties to an exemption. A single

renewal application would not provide

all incident experience encountered by

all parties to an exemption. Further,

where there are numerous parties to an

exemption and each attained party

status on a different date, issuance of a

blanket renewal for all parties becomes

unworkable from a timing perspective.

For example, persons who attained

party status close to the date for the

blanket renewal may find themselves

immediately faced with renewal. RSPA,

therefore, is not adopting this

suggestion.

One commenter encouraged RSPA to

extend the exemption renewal process

from two years to five years to alleviate

some of the administrative burdens on

RSPA and the regulated industry. The

commenter stated that RSPA could

determine whether an exemption

should continue based on any incidents

that occur during the life of the

exemption. Another commenter stated

that an exemption period of three years

may be more appropriate for the

information required in the revised

application procedures. Another
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21089

commenter suggested that RSPA seek a

legislative change that allows

exemptions to remain in effect until

such time as the Secretary finds that

continuation is no longer in the public

interest or the exemption holder

withdraws the exemption. The Federal

hazardous materials transportation law

(49 U.S.C. 5117) currently provides that

an exemption can be issued for no more

than a two-year maximum period of

time; therefore, RSPA lacks statutory

authority to extend the two-year period.

However, on March 27, 1996, a

legislative proposal was sent to

Congress which included a request that

the two-year exemption limitation be

extended to four years.

§ 107.111 Withdrawal. One

commenter requested that RSPA clarify

that all documents deemed confidential

by the Associate Administrator in

accordance with § 107.5 that are related

to an active or inactive application will

remain confidential. RSPA accepts the

commenter’s suggestion and is adding a

statement in this section clarifying this

point and further clarifying that the time

period for which confidential treatment

will be afforded comports with the

guidelines of the Freedom of

Information Act (5 U.S.C. 552(b)).

Specifically, submissions which fall

within the definition of ‘‘trade secrets’’

or ‘‘commercial or financial information

obtained from a person and privileged

or confidential’’ will remain

confidential indefinitely, unless the

party requesting the confidential

treatment notifies the Associate

Administrator that the confidential

treatment is no longer desired.

§ 107.113 Application processing.

Commenters raised concerns about the

proposed language in paragraph (a) with

respect to the time frame in which a

determination is made concerning

whether an application is complete. The

commenters requested that RSPA

remove the proposed wording ‘‘usually

is made’’ and retain the current wording

‘‘will be made.’’ One commenter stated

that the requirement is reasonable since

it is only a determination of the

application’s completeness and not a

decision on its merits. RSPA agrees with

the commenter and is retaining the

current wording in paragraph (a) as

requested.

Seven of the 15 commenters were

strongly opposed to RSPA’s proposal to

consider the existence of pending or

completed enforcement actions as a

factor in determining whether an

exemption applicant demonstrates

fitness to conduct an activity that would

be authorized under the exemption. One

commenter stated that RSPA’s technical

experts should be able to determine the

safety of the subject of a proposed

exemption request without reference to

enforcement actions on unrelated

subjects. Another commenter stated

that, historically, RSPA could deny an

exemption application on any basis. The

commenter stated that the proposed

language could create an unnecessarily

adversarial situation. One commenter

stated that it objected to consideration

of pending or completed enforcement

actions as ‘‘prima facie evidence of an

applicant’s capability or integrity.’’ The

commenter stated that, in cases where

assessed penalties were low,

respondents in enforcement actions may

have adopted a ‘‘no contest’’ posture in

an enforcement action and paid a

penalty, rather than expend the time

and money necessary to litigate an

action. If enforcement history is used

against these respondents, the

commenter said that a business decision

to not contest the action would have

more severe consequences than

successful resistance to an enforcement

action by a more litigious respondent.

The commenter also stated that denial

of an exemption or approval because of

enforcement history would punish the

violator twice for a violation. The

commenter added that Congress, in

developing the hazardous materials

transportation legislation, had

considered and rejected adoption of a

licensing concept because existing

enforcement powers are sufficiently

strong to address violations, without

denying authority to operate under an

exemption or approval. The commenter

concluded that the ‘‘enforcement

history’’ provision should be very

narrowly tailored: only prior violations

which indicate flagrant disregard for

HMR compliance should be considered.

Another commenter suggested that only

enforcement actions of a ‘‘significant

nature’’ be considered evidence of

insufficient competence or integrity.

In general, RSPA believes that

consideration of completed enforcement

actions and certain pending

enforcement actions as evidence of an

applicant’s capability and integrity is a

legitimate means of protecting the

public. It is not punishment but

recognition of relevant information.

Enforcement actions may be indicative

of an applicant’s ability or willingness

to comply with the applicable

regulations. Because the Associate

Administrator is considering whether to

authorize compliance with specific

alternatives to the HMR, the likelihood

of an applicant’s compliance with those

alternatives is relevant to public safety.

One commenter suggested that RSPA

revise paragraph (a)(5) to read ‘‘The

application may be denied if the

shipping and accident experience

supplied by the applicant in accordance

with § 107.105(a) which directly relates

to the exemption being sought

demonstrates that approval of the

application poses a potential threat to

life or property.’’ Limiting consideration

to only an applicant’s shipping and

accident experience which directly

relates to the exemption sought fails to

protect the public from applicants with

poor compliance histories who seek

exemptions to authorize new hazardous

materials transportation activities.

One commenter stated that the rule is

unclear as to whether violations that

qualify for the ticketing program are

considered ‘‘enforcement actions’’

under the proposed rule. The

commenter recommended that RSPA

not consider ticketed violations. RSPA

will consider ticketed violations as part

of an applicant’s compliance history,

using the criteria specified in § 107.331

to assess the weight to be given to the

violation.

DOE requested clarification of the

provision concerning consideration of

past violations in determining an

applicant’s capability and integrity as it

applies to government entities that use

contractors. DOE also asked RSPA to

clarify the terms ‘‘pending’’ and

‘‘complete’’ as used in the proposed

regulation and the type of activity that

warrants a determination of ‘‘lack of

integrity.’’

For purposes of regulatory

compliance, RSPA looks to the entity

whose act or omission constitutes a

violation of the HMR. In response to

DOE’s question regarding the status of

an enforcement action as either

‘‘pending’’ or ‘‘complete,’’ an

enforcement case historically has been

initiated by issuance of a Notice of

Probable Violation (NOPV). However,

RSPA recently established a pilot

‘‘ticketing’’ program permitting

initiation of an enforcement case by

issuance of a ticket. Thus, a case is

‘‘pending’’ from the date of issuance of

either the NOPV or the ticket until a

final order has been issued and the time

for appeal has expired. If the order has

been appealed in a timely manner, the

case is ‘‘pending’’ until the RSPA

Administrator (Administrator) issues an

Action on Appeal. When an order has

become final or when an order was

appealed and the Administrator has

issued an Action on Appeal, the

enforcement action is considered to be

‘‘complete.’’

RSPA is adopting the proposed rule

with several modifications. In making a

determination to grant or deny a request

for an exemption, RSPA will consider

information submitted in the
21090 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

application package, compliance history

of the applicant, and other information

available to the Associate

Administrator.

Another commenter objected to the

proposed language providing that an

applicant who failed to respond within

30 days to a request for additional

information would have his or her

application deemed incomplete and

denied. The commenter stated that,

where reasonable and appropriate, an

extension of time should be granted.

RSPA understands the commenter’s

concern. Currently, if an applicant fails

to respond to a request for additional

information for good cause, RSPA grants

a 30-day extension. To clarify this point,

RSPA is adding a provision in this

section and § 107.709 (approval

application processing) that allows an

applicant to submit a written request for

a 30-day extension.

Finally, commenters stated that, while

they favored initiating a rulemaking in

addition to issuing an exemption, they

did not agree with initiating a

rulemaking in lieu of issuing an

exemption. The commenters stated that

the latter penalized an applicant

because rulemaking usually has taken

longer than processing of an exemption

request. One of the commenters noted

that, in its experience, RSPA staff faced

with this situation would issue an

exemption to the applicant, and

concurrently initiate a rulemaking

action, which could lead ultimately to

issuance of a rule of general

applicability.

RSPA has seldom issued a rulemaking

in lieu of processing an exemption

application, and RSPA does not intend

to change that policy. However, RSPA

believes that if the subject of an

exemption application is so broad and

of such general applicability that it

should result in a rulemaking action,

going forward with issuance of the

exemption during the pendency of the

rulemaking process may have the effect

of prejudging the rulemaking. A large

number of applications for similar

exemptions or ‘‘party to’’ status may

also adversely impact RSPA’s programs.

For these reasons, the Associate

Administrator may either process the

exemption application, use the

application as a basis for rulemaking, or

do both. When an applicant meets all

other regulatory requirements and

demonstrates a compelling necessity for

an exemption, the Associate

Administrator may issue an exemption.

§ 107.115 Priority processing. Some

commenters supported RSPA’s proposal

to establish a new priority processing

category for applications that do not

qualify for emergency processing but

merit more expeditious consideration

than routine processing. One

commenter stated that overall

processing time should be reduced.

However, other commenters expressed

concern that the processing time of

routine and priority exemption

applications would be the same if each

must undergo the same review process

as proposed. Some commenters opposed

a priority processing category because it

would delay the preparation and

processing of applications for

exemptions as each applicant tried to

demonstrate significant economic loss

and RSPA evaluated each application.

One commenter requested that RSPA

provide an indication of the time in

which RSPA would respond to a

priority exemption application. Another

commenter requested that RSPA

provide the Associate Administrator the

flexibility to issue temporary

exemptions to applicants who qualify

for priority processing while the

application is being processed to

minimize financial burdens on the

applicant. Commenters stated that cases

that have the potential for severe

economic harm are already handled by

emergency processing.

Another commenter requested that

RSPA clarify why current emergency

processing should be replaced by two

separate processing categories that

appear to be more complex. The

commenter noted that, in the NPRM,

priority processing would be based on

economic factors and emergency

processing would be based on life and

property criteria. The commenter stated

that, in the current emergency

processing procedures, RSPA considers

either endangerment to life or property

or serious economic loss. The

commenter asked whether RSPA, by

proposing two separate processing

categories, is suggesting that it considers

a health threat to be more important

than economic loss, even if the health

threat is remote and the economic loss

is substantial.

One commenter objected to the

proposed rule requiring nongovernment entities to meet higher

standards than government entities to

qualify for priority processing. Based on

the comments, RSPA has determined

that adding a priority processing

category is not warranted. Therefore, the

proposal is not adopted in this final

rule.

§ 107.117 Emergency processing.

Commenters favored the continued

existence of an emergency processing

category. One commenter stated that the

current procedures require that ‘‘an

applicant need only show that existing

conditions necessitate the transportation

of a hazardous material, or that the

protection of life and property would

not be possible if such material is not

transported.’’ The commenter objected

to the proposed emergency processing

procedures in that they require

applicants to demonstrate that such

processing is necessary to prevent

‘‘significant injury’’ to persons or

property. The commenter requested that

RSPA remove the term ‘‘significant’’

because it is subjective. The current

procedures allow only applicants who

can show that a life-threatening

situation exists to qualify for emergency

processing. In the proposed rule, RSPA

responded to requests of applicants that

a broader standard be utilized in

determining that emergency processing

is warranted. At the same time, RSPA

proposed to include the term

‘‘significant’’ to set a reasonable limit on

the expanded criteria, and believes that

the term is necessary to ensure fairness

to applicants awaiting routine

processing by not allowing applicants to

allege ‘‘minor’’ injuries or losses as the

basis for emergency processing.

One commenter stated that, under the

proposed rule, the Associate

Administrator could deny priority or

emergency processing if timely

application could have been made. The

commenter requested that RSPA allow

an applicant to explain circumstances

that may have contributed to the

applicant not filing an application in a

timely manner so that the applicant may

still be considered for priority or

emergency processing. RSPA

contemplates that an applicant seeking

emergency processing will provide

evidence of circumstances that

prevented the applicant from filing the

application in a timely manner.

One commenter stated that it is

unlikely that applicants who request

emergency processing will be able to

supply the information specified in

proposed § 107.105(a)(17) for analyses,

data, or test results. In response to

comments to the proposed application

procedures in § 107.105, RSPA is

clarifying the extent to which applicants

are required to supply analyses, data, or

test results. See preamble discussion

under § 107.105.

Another commenter stated that the

‘‘emergency processing’’ language

appeared to apply only to ‘‘carrier’’

exemptions and questioned its

applicability to exemptions issued to

shippers. The commenter stated that the

proposed rule directs carriers to send

the exemption application to the office

of the modal administration which has

oversight responsibility for the carrier’s

mode of transportation (e.g., FHWA, the

Federal Railroad Administration, etc.).
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21091

The commenter stated that shippers

often utilize more than one mode and

therefore the proposed requirement that

an application be sent to only one

modal office requires ‘‘fine tuning.’’ Any

applicant, including a shipper, seeking

an emergency exemption must submit

the application to the specified modal

contact official for the initial mode of

transportation to be utilized.

Some commenters suggested that

emergency exemption applications be

submitted directly to RSPA, consistent

with other exemption submissions, and

not to the specific modal

administration. An emergency

exemption application is most

expeditiously handled when submitted

to the applicable modal administration,

where an immediate analysis of the

proposed transportation can be

performed by personnel having

expertise in the affected mode of

transportation. This process will

eliminate the need for RSPA to forward

the exemption application to the

affected mode for input, thus allowing

for more expeditious application review

and more timely and efficient customer

service.

In this final rule the section is

adopted essentially as proposed with

editorial changes for clarity. Proposed

paragraph (f) is deleted as unnecessary,

and proposed paragraph (g) and (h) are

redesignated as (f) and (g), respectively.

§ 107.121 Modification, suspension,

or termination of exemption or grant of

party status. One commenter expressed

concern that the proposed rule would

allow termination simply ‘‘for no other

reason than if the Department wants it

terminated regardless of the shipping

and incident experience * * *.’’ The

commenter argued that: (1) This

provision appears contrary to the

performance-oriented packaging system;

(2) this provision gives no regard to

contracts for the supply of materials

between shippers and consignees; (3)

the exemption holder is placed at the

mercy of RSPA personnel; (4) it is

doubtful that the proposed rule

comported with the intent of Congress;

(5) the proposed rule does not comport

with the preamble, which indicates that

the purpose of the NPRM is to expedite

processing of applications and promote

program consistency; and (6) based on

the foregoing, the proposed rule is

‘‘significant.’’

This rule clarifies standards for

exemption modification, suspension,

and termination and gives the Associate

Administrator more flexibility to

determine which of the three remedies

is appropriate in a given situation.

Presently, the Associate Administrator

may modify or suspend an exemption if

its provisions are violated or if new

information suggests that the activity

under the exemption creates a risk to

life or property. The Associate

Administrator may terminate an

exemption if it is no longer consistent

with the public interest, is no longer

necessary due to a change in the

regulations, or was granted on the basis

of false or misleading information. The

‘‘public interest’’ criterion encompasses

all grounds on which the Associate

Administrator may terminate an

exemption, but it is vague. Furthermore,

the sharp distinction that the existing

regulation draws between those

conditions that justify modifying or

suspending an exemption and those that

justify terminating it handicap the

Associate Administrator in taking the

action that is most appropriate in a

particular circumstance. For example,

the current regulation may require the

termination of an exemption when

modification would suffice.

The Associate Administrator’s

decision to modify, suspend, or

terminate an exemption must be based

on the criteria specified in the proposed

regulatory text (see 49 CFR 107.121 (a)

and (b)).

In this final rule § 107.121 is adopted

essentially as proposed. Paragraph (d) is

added to specify conditions by which

the Associate Administrator may

declare a proposed action immediately

effective.

§ 107.123 Reconsideration. One

commenter suggested that RSPA clarify

that applications denied pursuant to

§ 107.113(d) are eligible for

reconsideration in accordance with this

section. RSPA agrees that they are

eligible for reconsideration, but sees no

reason for a rule change. In the NPRM,

RSPA specifically stated that applicants

may request reconsideration of

decisions made under §§ 107.113(g),

107.117(e), and 107.121(c). This section

is adopted as proposed.

Subpart C—Preemption

One commenter suggested that

‘‘Associate Administrator for Hazardous

Materials Safety’’ be revised to read

‘‘Associate Administrator’’ for

consistency with other sections in part

107. RSPA agrees and, in the interest of

achieving consistency, is modifying the

language of subpart C as suggested in all

general references to the Associate

Administrator. Also, RSPA is making

other minor modifications to the

regulatory language of subpart C for

clarity and consistency.

§ 107.205 Notice. One commenter

recommended changing ‘‘may publish

notice of an application’’ in paragraph

(b), to ‘‘will publish notice of, including

an opportunity to comment on, an

application.’’ RSPA agrees and is

revising the paragraph to require

publication of the notice in the Federal

Register.

In paragraph (c) and in §§ 107.211(c),

107.217(c), and 107.223(c), RSPA is

adding a sentence, ‘‘Late-filed

comments are considered so far as

practicable.’’ This sentence reflects the

manner in which RSPA has handled

late-filed comments in preemption

matters and is consistent with § 106.23

concerning the handling of late-filed

comments in rulemaking actions.

Because this change is merely a

modification to a rule of agency

procedure, public notice and an

opportunity to comment on the change

are not mandated by the Administrative

Procedure Act.

§ 107.209 Determination.

Commenters also favored revision of

paragraph (c) to change ‘‘may publish’’

to ‘‘will publish’’. RSPA agrees and is

making this change.

One commenter disagreed with the

proposed deletion of paragraph (b) to

eliminate the Associate Administrator’s

authority to issue a preemption

determination on his or her own

initiative. The commenter did not agree

that the authority was eliminated by the

Hazardous Materials Transportation

Uniform Safety Act of 1990 (HMTUSA).

The commenter recommended adding

language allowing the Associate

Administrator to issue a preemption

determination where he or she is

directly affected by a requirement of a

State or political subdivision or Indian

tribe. RSPA disagrees. The preHMTUSA regulations authorized RSPA

to issue inconsistency rulings, which

were merely advisory in nature, on its

own initiative. However, in enacting

HMTUSA, Congress replaced these

advisory inconsistency rulings with

authorization to issue binding

preemption determinations and, further,

provided for issuance of preemption

determinations only in response to

applications by ‘‘directly affected’’

persons. See 49 U.S.C. 5125(d). In light

of these statutory changes, RSPA

believes that it is inappropriate for the

Associate Administrator to initiate a

preemption determination proceeding

on his or her own initiative. Therefore,

paragraph (b) is eliminated as proposed.

§ 107.211 Petition for

reconsideration. RSPA proposed to

amend this section by revising

paragraph (a) to read ‘‘The petition must

be filed within 20 days of publication of

the determination in the Federal

Register.’’ A commenter expressed

concern about this language in light of

RSPA’s proposal to make publication
21092 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

optional. As previously stated, RSPA

will publish all preemption

determinations and, therefore, this

language will not be problematic. The

proposal is adopted in this final rule.

§ 107.213 Judicial review. In the

NPRM, RSPA proposed to add a new

section to allow a party to a proceeding

under § 107.203(a) to seek review by the

appropriate district court of the United

States of a decision of the Administrator

by filing a petition with the court within

60 days after the Administrator’s

decision becomes final. One commenter

recommended that references to the

‘‘Administrator’’ be changed to the

‘‘Associate Administrator.’’ RSPA agrees

with this suggestion and amends this

section accordingly. The commenter

also requested that RSPA specify when

its decision on a petition for

reconsideration of a preemption

determination becomes final. The

Associate Administrator’s decision

becomes final when it is published in

the Federal Register. RSPA is amending

this section to clarify this issue. In

addition, RSPA is revising the wording

‘‘decision’’ to read ‘‘determination’’ to

minimize confusion.

§ 107.217 Notice. One commenter

suggested that the word ‘‘ruling’’ in

paragraph (d) be changed to ‘‘outcome

of a determination on the application.’’

RSPA agrees with this suggestion, and is

making the change accordingly.

§ 107.221 Determination. A

commenter asked that, in paragraph (d),

the word ‘‘may’’ be changed to ‘‘will’’

concerning publication of

determinations in the Federal Register.

RSPA agrees and is making this change.

§ 107.223 Petition for

reconsideration. One commenter

suggested that the term ‘‘order’’ be

changed to ‘‘determination.’’ For clarity

and consistency, RSPA is making this

change.

§ 107.227 Judicial review. RSPA is

amending this section for consistency

with § 107.213. See preamble discussion

under § 107.213.

Subpart D—Enforcement

§ 107.305 Investigations. A

commenter opposed the proposal to

authorize RSPA inspectors to issue

subpoenas for the production of

documents or other tangible evidence

because of the potential for abuse. RSPA

is adopting the provision as proposed.

RSPA inspectors are broadly

empowered, through delegations of

investigatory authority under the

Federal hazmat law, 49 U.S.C. 5121, to

collect evidence reasonably related to

hazardous materials compliance

inspections. Their use of a subpoena

without involvement of RSPA’s Office

of the Chief Counsel will improve

program efficiency by expediting the

information-gathering process. The

potential for inspectors to abuse this

authority is minimal because the

Director of the Office of Hazardous

Materials Enforcement must approve the

issuance of the subpoena and the

recipient of the subpoena may seek

review of the subpoena by RSPA’s

Office of the Chief Counsel under

§ 107.13(h).

For clarity, RSPA added the words

‘also known as ‘‘hazmat inspectors’’ or

‘‘inspectors’’’ after the words

‘‘Hazardous Materials Enforcement

Specialists.’’ This addition was not

proposed in the NPRM, but is added on

RSPA’s initiative to provide consistency

between § 107.305(b) and subparagraphs

(1), (2), and (3) which refer to

‘‘inspectors.’’

§ 107.315 Admission of violations.

Paragraphs (c) and (d) are revised to

delete the recommendation that

payment of a civil penalty be

documented by forwarding a photocopy

of the respondent’s electronic fund

transfer receipt or check to the Office of

the Chief Counsel. This administrative

change, not in the NPRM, eliminates a

potential paperwork burden on the

regulated industry. Because this change

is merely a modification to a rule of

agency procedure, public notice and

opportunity to comment on the change

are not required by the Administrative

Procedure Act.

§ 107.331 Assessment

considerations. This section is adopted

essentially as proposed, with a minor

editorial revision.

Subpart H—Approvals, Registrations

and Submissions.

§ 107.107 Purpose and scope. This

section is adopted as proposed.

§ 107.705 Registration and reporting.

One commenter recommended that

RSPA develop a standard form in place

of general procedures for registrations

and reports. RSPA does not believe that

a standard form is practical, considering

the variation in information required for

the numerous approvals, registrations,

and reports that would have to be

accommodated by a standard generic

form.

Except as discussed in the following

paragraph, this section is adopted as

proposed.

§ 107.707 Applications. The

proposed provisions for renewal of

approvals state that RSPA will issue a

written extension to operate under an

expired approval until RSPA makes a

final determination on the application.

One commenter requested that the

renewal procedures for approvals be

consistent with renewal procedures for

exemptions in that if an application is

submitted at least 60 days prior to the

expiration date, the expiration is

automatically extended until RSPA

makes a final determination on the

application. RSPA agrees with the

commenter, and is adopting the

suggestion. Further, since the

requirements for registration and

reporting specified in the proposed

§ 107.705 and the requirements for an

approval application specified in

§ 107.707 are essentially the same,

RSPA is eliminating the separate

language of § 107.707, and combining

the ‘‘registration and reporting’’

requirements of § 107.707 with the

‘‘approval application’’ requirements

§ 107.705, in a section entitled

‘‘Registrations, reports, and applications

for approval.’’

§ 107.709 Application processing.

Commenters again expressed opposition

to RSPA’s proposal to permit the

Associate Administrator to consider

pending or completed enforcement

actions in determining whether an

approval application is processed or

denied. This issue is discussed under

§ 107.113 and RSPA is modifying this

section similarly.

§ 107.711 Withdrawal. With respect

to documents submitted in conjunction

with an exemption application which is

later withdrawn, one commenter

requested that RSPA clarify that all

documents deemed confidential by the

Associate Administrator in accordance

with § 107.5 that are related to an active

or inactive application will remain

confidential. RSPA has agreed to do so,

and is extending this confidential

treatment to documents submitted in

conjunction with an approval

application. See preamble comments to

49 CFR § 107.111.

§ 107.713 Approval modification,

suspension, or termination. One

commenter raised the same concerns

about the proposed procedures for

modification, suspension, or

termination of approvals as he raised

regarding modification, suspension, or

termination of exemptions. RSPA

discussed these issues under § 107.121.

Paragraph (d) is added to specify

conditions by which the Associate

Administrator may declare a proposed

action immediately effective. Otherwise,

the section is adopted as proposed.

§ 107.715 Reconsideration.

Paragraph (b) is adopted as proposed.

§ 107.717 Appeal. Proposed

paragraph (c) is not adopted for the

same reasons as discussed under

§ 107.715 above. Otherwise, the section

is adopted as proposed.
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21093

Part 171

§ 171.1 Purpose and scope. One

commenter recommended that the

wording ‘‘in commerce’’ be added

following ‘‘hazardous materials’’

throughout this section for clarity and

consistency with the Federal hazardous

material transportation law. RSPA

agrees and is modifying paragraph (a)

accordingly.

Additionally, a new paragraph (d) is

added, as proposed, to clarify that the

requirements of subchapter C are

applicable to the use of terms and

symbols prescribed in this subchapter

for marking, labeling, placarding, and

describing hazardous materials and

packagings used in their transport.

§ 171.2 General requirements. The

modifications of paragraphs (a) through

(d), and the addition of paragraph (h)

are adopted essentially as proposed in

the NPRM, with minor modifications to

the regulatory language for accuracy and

clarity. Identifications listed in

paragraph (d) have been expanded to

include most, if not all, of the

identifications covered by the

regulations.

§ 171.3 Hazardous waste. A

commenter objected to RSPA’s proposal

to eliminate paragraph (c) of this

section; the commenter opined that the

paragraph implements a requirement of

the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6923(b),

that all RCRA rules issued by the

Environmental Protection Agency be

consistent with the Federal hazmat law

and the HMR. The commenter also

stated that retention of this provision is

necessary to inform states implementing

RCRA of the necessity for consistency

with the Federal hazmat law and the

HMR. For preemption purposes, RSPA

looks at hazardous waste issues together

with issues covering all other hazardous

materials. RCRA’s directive that EPA’s

hazardous waste requirements be

consistent with the Federal hazmat law

does not mandate that RSPA establish a

separate preemption provision for

hazardous waste. Therefore, RSPA is

deleting paragraph (c), including the

note contained therein, as proposed.

§ 171.8 Definitions. RSPA is

adopting a definition for ‘‘approval’’ and

revising the definition for ‘‘person’’, as

proposed. In addition, RSPA is adding

a definition for ‘‘exemption’’ for clarity.

Because this latter change is merely

informative, public notice and

opportunity to comment on the change

are not required by the Administrative

Procedure Act.

Part 172

§ 172.302 General marking

requirements for bulk packagings. A

commenter requested that RSPA

authorize markings for small portable

tanks and intermediate bulk containers

(IBC’s) to be only one inch high. The

commenter suggested that, instead of

incorporating the minimum height of

exemption number markings into

§ 172.302(c), RSPA should crossreference § 172.302(b), which requires

exemption markings to be the same size

as other required markings on bulk

packagings and makes the marking size

dependent upon the size and capacity of

the packaging. The commenter also

requested that width requirements for

exemption markings be specified. RSPA

is considering changes to the marking

height and width requirements under a

separate rulemaking action. Therefore,

the proposed change in the NPRM and

this commenter’s suggested change

regarding size of exemption markings

are not adopted as part of this final rule.

Part 173

§ 173.22a Use of packagings

authorized under exemptions. Proposed

paragraph (c) is revised to refer to

‘‘offeror’’ rather than ‘‘shipper.’’ Also, a

sentence is added to clarify that a carrier

shall maintain a copy of an exemption

in the same manner as for a shipping

paper.

Part 178

§ 178.3 Marking of packagings.

Paragraph (d) is adopted as proposed.

IV. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule is not considered a

significant regulatory action under

section 3(f) of Executive Order 12866

and, therefore, was not subject to review

by the Office of Management and

Budget. The rule is not significant

according to the Regulatory Policies and

Procedures of the Department of

Transportation (44 FR 11034).

This final rule will not result in any

additional costs to persons subject to the

HMR. Therefore, preparation of a

regulatory impact analysis or regulatory

evaluation is not warranted.

B. Executive Order 12612

This final rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612 (‘‘Federalism’’). The Federal

hazardous materials transportation law

(49 U.S.C. 5101–5127) contains an

express preemption provision that

preempts State, local, and Indian tribe

requirements on certain covered

subjects. Covered subjects are:

(i) the designation, description, and

classification of hazardous material;

(ii) the packing, repacking, handling,

labeling, marking, and placarding of

hazardous material;

(iii) the preparation, execution, and

use of shipping documents pertaining to

hazardous material and requirements

respecting the number, content, and

placement of such documents;

(iv) the written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material; or

(v) the design, manufacturing,

fabrication, marking, maintenance,

reconditioning, repairing, or testing of a

package or container which is

represented, marked, certified, or sold

as qualified for use in the transportation

of hazardous material.

Title 49 U.S.C. 5125(b)(2) provides

that if DOT issues a regulation

concerning any of the covered subjects

after November 16, 1990, DOT must

determine and publish in the Federal

Register the effective date of Federal

preemption. That effective date may not

be earlier than the 90th day following

the date of issuance of the final rule and

not later than two years after the date of

issuance. The effective date of Federal

preemption for this final rule is October

1, 1996. Because RSPA lacks discretion

in this area, preparation of a Federalism

assessment is not warranted.

C. Regulatory Flexibility Act

I certify that this final rule will not

have a significant economic impact on

a substantial number of small entities.

This final rule amends existing

requirements and adds new procedural

provisions to clarify existing practice.

The amendments contained in this rule

do not impose any new requirements on

persons subject to the HMR; thus, there

are no direct or indirect adverse

economic impacts for small units of

government, businesses, or other

organizations.

D. Paperwork Reduction Act

Information collection requirements

applicable to applications for

exemptions contained in this final rule

are unchanged in substance and amount

of burden from those currently

approved by the Office of Management

and Budget (OMB) under OMB control

number 2137–0051. RSPA is requesting

revision of the OMB approval to update

section references in accordance with

changes made in this final rule.

Information collection requirements

applicable to approvals are unchanged

in substance and amount of burden from

those previously approved under OMB

control number 2137–0557. RSPA is

requesting reinstatement and revision of

this approval from OMB and will
21094 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

display, through publication in the

Federal Register, the control number

when it is approved by OMB. Public

comment on this request has been

invited through publication of a Federal

Register notice on March 5, 1996 (61 FR

8706). Under the Paperwork Reduction

Act of 1995, no person is required to

respond to a requirement for collection

of information unless the requirement

displays a valid OMB control number.

E. Regulation Identification Number

(RIN)

A regulation identifier number (RIN)

is assigned to each regulatory action

listed in the Unified Agenda of Federal

Regulations. The Regulatory Information

Service Center publishes the Unified

Agenda in April and October of each

year. The RIN number contained in the

heading of this document can be used

to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 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, Incorporation by reference,

Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation,

Packaging and containers, Radioactive

materials, Reporting and recordkeeping

requirements, Uranium.

49 CFR Part 178

Hazardous materials transportation,

Motor vehicle safety, Packaging and

containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49

CFR chapter I is amended as follows:

PART 107—HAZARDOUS MATERIALS

PROGRAM PROCEDURES

1–2. The authority citation for part

107 continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49

CFR 1.45, 1.53.

3. In § 107.3, definitions are added in

alphabetical order to read as follows:

§ 107.3 Definitions.

* * * * *

Acting knowingly means acting or

failing to act while

(1) Having actual knowledge of the

facts giving rise to the violation, or

(2) Having the knowledge that a

reasonable person acting in the same

circumstances and exercising due care

would have had.

Administrator means the

Administrator, Research and Special

Programs Administration.

Applicant means the person in whose

name an exemption, approval,

registration, a renewed or modified

exemption or approval, or party status

to an exemption is requested to be

issued.

Application means a request under

subpart B of this part for an exemption,

a renewal or modification of an

exemption, party status to an

exemption, or a request under subpart H

of this part for an approval, or renewal

or modification of an approval.

Approval means a written

authorization, including a competent

authority approval, from the Associate

Administrator to perform a function for

which prior authorization by the

Associate Administrator is required

under subchapter C of this chapter.

* * * * *

Associate Administrator means the

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration.

* * * * *

Competent Authority Approval means

an approval by the competent authority

which is required under the provisions

of an international standard, such as the

International Civil Aviation

Organization’s Technical Instructions

for the Safe Transport of Dangerous

Goods by Air or the International

Maritime Dangerous Goods Code. To the

extent that it satisfies the requirement of

the international standard, any of the

following may serve as a competent

authority approval: a specific regulation

of this subchapter or subchapter C of

this chapter, an exemption or approval

issued under the provisions of this

subchapter or subchapter C of this

chapter, or a separate document issued

to one or more persons by the Associate

Administrator.

Exemption means a document issued

under the authority of 49 U.S.C. 5117 by

the Associate Administrator that

authorizes a person to perform a

function that is not otherwise

authorized under this subchapter,

subchapter C, or other regulations

issued under 49 U.S.C. 5101–5127 (e.g.,

Federal Highway Administration

routing).

* * * * *

Filed means received at the Research

and Special Programs Administration

office designated in the applicable

provision or, if no office is specified, at

the Office of Hazardous Materials

Exemptions and Approvals (DHM–30),

Research and Special Programs

Administration, U.S. Department of

Transportation, 400 7th Street SW.,

Washington DC, 20590–0001.

Holder means the person in whose

name an exemption or approval has

been issued.

* * * * *

Incident means an event resulting in

the unintended and unanticipated

release of a hazardous material or an

event meeting incident reporting

requirements in § 171.15 or § 171.16 of

this chapter.

* * * * *

Investigation includes investigations

authorized under 49 U.S.C. 5121 and

inspections authorized under 49 U.S.C.

5118 and 5121.

Manufacturing exemption means an

exemption from compliance with

specified requirements that otherwise

must be met before representing,

marking, certifying (including

requalifying, inspecting, and testing),

selling or offering a packaging or

container as meeting the requirements

of subchapter C of this chapter

governing its use in the transportation

in commerce of a hazardous material. A

manufacturing exemption is an

exemption issued to a manufacturer of

packagings who does not offer for

transportation or transport hazardous

materials in packagings subject to the

exemption.

Party means a person, other than a

holder, authorized to act under the

terms of an exemption.

* * * * *

Registration means a written

acknowledgment from the Associate

Administrator that a registrant is

authorized to perform a function for

which registration is required under

subchapter C of this chapter (e.g.,

registration with RSPA as a cylinder

retester pursuant to 49 CFR 173.34(e)(1),

or registration in accordance with 49

CFR 178.503 regarding marking of

packagings). For purposes of subparts A

through E, ‘‘registration’’ does not

include registration under subpart F or

G of this part.

Report means information, other than

an application, registration or part

thereof, required to be submitted to the

Associate Administrator pursuant to

this subchapter, subchapter B or

subchapter C of this chapter.

* * * * *
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21095

4. In § 107.5, paragraph (a) is revised

to read as follows:

§ 107.5 Request for confidential treatment.

(a) If any person filing a document

with the Associate Administrator claims

that some or all the information

contained in the document is exempt

from the mandatory public disclosure

requirements of the Freedom of

Information Act (5 U.S.C. 552), is

information referred to in 18 U.S.C.

1905, or is otherwise exempt by law

from public disclosure, and if that

person requests the Associate

Administrator not to disclose the

information, that person shall file,

together with the document, a second

copy of the document with the

confidential information deleted. The

person shall indicate each page of the

original document that is confidential or

contains confidential information by

marking or stamping ‘‘confidential’’ on

each page for which a claim of

confidentiality is made, and may file a

statement specifying the justification for

the claim of confidentiality. If the

person states that the information comes

within the exception in 5 U.S.C.

552(b)(4) for trade secrets and

commercial or financial information,

that person shall include a statement as

to why the information is privileged or

confidential. If the person filing a

document does not mark or stamp a

document as confidential or submit a

second copy of the document with the

confidential information deleted, the

Associate Administrator may assume

that there is no objection to public

disclosure of the document in its

entirety.

* * * * *

§ 107.5 [Amended]

5. In addition, in § 107.5, in paragraph

(b), the phrase ‘‘Associate Administrator

for Hazardous Materials Safety’’ is

revised to read ‘‘Associate

Administrator’’ both places it appears.

6. Subpart B of part 107 is revised to

read as follows:

Subpart B—Exemptions

Subpart B—Exemptions

107.101 Purpose and scope.

107.105 Application for exemption.

107.107 Application for party status.

107.109 Application for renewal.

107.111 Withdrawal.

107.113 Application processing and

evaluation.

107.117 Emergency processing.

107.121 Modification, suspension or

termination of exemption or grant of

party status.

107.123 Reconsideration.

107.125 Appeal.

107.127 Availability of documents for

public inspection.

* * * * *

§ 107.101 Purpose and scope.

This subpart prescribes procedures for

the issuance, modification and

termination of exemptions from

requirements of this subchapter,

subchapter C of this chapter, or

regulations issued under chapter 51 of

49 U.S.C.

§ 107.105 Application for exemption.

(a) General. Each application for an

exemption or modification of an

exemption must—

(1) Be submitted in duplicate and, for

timely consideration, at least 120 days

before the requested effective date to:

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration, U.S.

Department of Transportation, 400 7th

Street, SW, Washington, DC 20590–

0001. Attention: Exemptions, DHM–31;

(2) State the name, street and mailing

addresses, and telephone number of the

applicant; if the applicant is not an

individual, state the name, street and

mailing addresses, and telephone

number of an individual designated as

an agent of the applicant for all

purposes related to the application;

(3) If the applicant is not a resident of

the United States, a designation of agent

for service in accordance with § 107.7 of

this part; and

(4) For a manufacturing exemption, a

statement of the name and street address

of each facility where manufacturing

under the exemption will occur.

(b) Confidential treatment. To request

confidential treatment for information

contained in the application, the

applicant shall comply with § 107.5(a).

(c) Description of exemption proposal.

The application must include the

following information that is relevant to

the exemption proposal:

(1) A citation of the specific

regulation from which the applicant

seeks relief;

(2) Specification of the proposed

mode or modes of transportation;

(3) A detailed description of the

proposed exemption (e.g., alternative

packaging, test, procedure or activity)

including, as appropriate, written

descriptions, drawings, flow charts,

plans and other supporting documents;

(4) A specification of the proposed

duration or schedule of events for which

the exemption is sought;

(5) A statement outlining the

applicant’s basis for seeking relief from

compliance with the specified

regulations and, if the exemption is

requested for a fixed period, a

description of how compliance will be

achieved at the end of that period;

(6) If the applicant seeks emergency

processing specified in § 107.117, a

statement of supporting facts and

reasons;

(7) Identification and description of

the hazardous materials planned for

transportation under the exemption;

(8) Description of each packaging,

including specification or exemption

number, as applicable, to be used in

conjunction with the requested

exemption;

(9) For alternative packagings,

documentation of quality assurance

controls, package design, manufacture,

performance test criteria, in-service

performance and service-life limitations;

(d) Justification of exemption

proposal. The application must

demonstrate that an exemption achieves

a level of safety at least equal to that

required by regulation, or if a required

safety level does not exist, is consistent

with the public interest. At a minimum,

the application must provide the

following:

(1) Information describing all relevant

shipping and incident experience of

which the applicant is aware that relates

to the application;

(2) A statement identifying any

increased risk to safety or property that

may result if the exemption is granted,

and a description of the measures to be

taken to address that risk; and

(3) Either—

(i) Substantiation, with applicable

analyses, data or test results, that the

proposed alternative will achieve a level

of safety that is at least equal to that

required by the regulation from which

the exemption is sought; or

(ii) If the regulations do not establish

a level of safety, an analysis that

identifies each hazard, potential failure

mode and the probability of its

occurrence, and how the risks

associated with each hazard and failure

mode are controlled for the duration of

an activity or life-cycle of a packaging.

§ 107.107 Application for party status.

(a) Any person eligible to apply for an

exemption may apply to be made party

to an application or an existing

exemption, other than a manufacturing

exemption.

(b) Each application filed under this

section must—

(1) Be submitted in duplicate to:

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration, U.S.

Department of Transportation, 400 7th

Street, SW, Washington, DC 20590–

0001. Attention: Exemptions, DHM–31;
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(2) Identify by number the exemption

application or exemption to which the

applicant seeks to become a party;

(3) State the name, street and mailing

addresses, and telephone number of the

applicant; if the applicant is not an

individual, state the name, street and

mailing addresses, and telephone

number of an individual designated as

the applicant’s agent for all purposes

related to the application; and

(4) If the applicant is not a resident of

the United States, provide a designation

of agent for service in accordance with

§ 107.7.

(c) The Associate Administrator

grants or denies an application for party

status in the manner specified in

§ 107.113(e) and (f) of this subpart.

(d) A party to an exemption is subject

to all terms of that exemption, including

the expiration date. If a party to an

exemption wishes to renew party status,

the exemption renewal procedures set

forth in § 107.109 apply.

§ 107.109 Application for renewal.

(a) Each application for renewal of an

exemption or party status to an

exemption must—

(1) Be submitted in duplicate to:

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration, U.S.

Department of Transportation, 400 7th

Street, SW, Washington, DC 20590–

0001. Attention: Exemptions, DHM–31;

(2) Identify by number the exemption

for which renewal is requested;

(3) State the name, street and mailing

addresses, and telephone number of the

applicant; if the applicant is not an

individual, state the name, street and

mailing addresses, and telephone

number of an individual designated as

an agent of the applicant for all

purposes related to the application;

(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 exemption

since its issuance or most recent

renewal. If the applicant is aware of no

incidents, the applicant shall 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

involved in any loss of contents,

including loss by venting other than as

authorized in subchapter C.

(b) If at least 60 days before an

existing exemption expires the holder

files an application for renewal that is

complete and conforms to the

requirements of this section, the

exemption will not expire until final

administrative action on the application

for renewal has been taken.

§ 107.111 Withdrawal.

An application may be withdrawn at

any time before a decision to grant or

deny it is made. Withdrawal of an

application does not authorize the

removal of any related records from the

RSPA dockets or files. Applications that

are eligible for confidential treatment

under § 107.5 will remain confidential

after the application is withdrawn. The

duration of this confidential treatment

for trade secrets and commercial or

financial information is indefinite,

unless the party requesting the

confidential treatment of the materials

notifies the Associate Administrator that

the confidential treatment is no longer

required.

§ 107.113 Application processing and

evaluation.

(a) The Associate Administrator

reviews an application for exemption,

modification of exemption, party to

exemption, or renewal of an exemption

to determine if it is complete and

conforms with the requirements of this

subpart. This determination will be

made within 30 days of receipt of the

application for exemption, modification

of exemption, or party to exemption,

and within 15 days of receipt of an

application for renewal of an

exemption. If an application is

determined to be incomplete, the

applicant is informed of the reasons.

(b) An application, other than a

renewal, party to, or emergency

exemption application, that is

determined to be complete is docketed.

Notice of the application is published in

the Federal Register, and an

opportunity for public comment is

provided. All comments received during

the comment period are considered

before final action is taken on the

application.

(c) No public hearing or other formal

proceeding is required under this

subpart before the disposition of an

application. Unless emergency

processing under § 107.117 is requested

and granted, applications are usually

processed in the order in which they are

filed.

(d) During the processing and

evaluation of an application, the

Associate Administrator may request

additional information from the

applicant. If the applicant does not

respond to a written request for

additional information within 30 days

of the date the request was received, the

application may be deemed incomplete

and denied. However, if the applicant

responds in writing within the 30-day

period requesting an additional 30 days

within which it will gather the

requested information, the Associate

Administrator may grant the 30-day

extension.

(e) The Associate Administrator may

grant or deny an application, in whole

or in part. In the Associate

Administrator’s discretion, an

application may be granted subject to

provisions that are appropriate to

protect health, safety or property. The

Associate Administrator may impose

additional provisions not specified in

the application or remove conditions in

the application that are unnecessary.

(f) The Associate Administrator may

grant an application on finding that—

(1) The application complies with this

subpart;

(2) The application demonstrates that

the proposed alternative will achieve a

level of safety that:

(i) Is at least equal to that required by

the regulation from which the

exemption is sought, or

(ii) If the regulations do not establish

a level of safety, is consistent with the

public interest and adequately will

protect against the risks to life and

property inherent in the transportation

of hazardous materials in commerce;

(3) The application states all material

facts, and contains no materially false or

materially misleading statement;

(4) The applicant meets the

qualifications required by applicable

regulations; and

(5) The applicant is fit to conduct the

activity authorized by the exemption.

This assessment may be based on

information in the application, prior

compliance history of the applicant, and

other information available to the

Associate Administrator.

(g) An applicant is notified in writing

whether the application is granted or

denied. A denial contains a brief

statement of reasons.

(h) An exemption and any renewal

thereof terminates according to its terms

or, if not otherwise specified, two years

after the date of issuance. A grant of

party status to an exemption, unless

otherwise stated, terminates on the date

that the exemption expires.

(i) The Associate Administrator, on

determining that an application
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21097

concerns a matter of general

applicability and future effect and

should be the subject of rulemaking,

may initiate rulemaking under part 106

of this chapter in addition to or instead

of acting on the application.

(j) The Associate Administrator

publishes in the Federal Register a list

of all exemption grants, denials, and

modifications and all exemption

applications withdrawn under this

section.

§ 107.117 Emergency processing.

(a) An application is granted

emergency processing if the Associate

Administrator, on the basis of the

application and any inquiry undertaken,

finds that—

(1) Emergency processing is necessary

to prevent significant injury to persons

or property (other than the hazardous

material to be transported) that could

not be prevented if the application were

processed on a routine basis; or

(2) Emergency processing is necessary

for immediate national security

purposes or to prevent significant

economic loss that could not be

prevented if the application were

processed on a routine basis.

(b) Where the significant economic

loss is to the applicant, or to a party in

a contractual relationship to the

applicant with respect to the activity to

be undertaken, the Associate

Administrator may deny emergency

processing if timely application could

have been made.

(c) A request for emergency

processing on the basis of potential

economic loss must reasonably describe

and estimate the potential loss.

(d) An application submitted under

this section must conform to § 107.105

to the extent that the receiving U.S.

Department of Transportation official

deems necessary to process the

application. An application on an

emergency basis must be submitted to

the U.S. Department of Transportation

modal contact official for the initial

mode of transportation to be utilized, as

follows:

(1) Certificate-Holding Aircraft: The

Federal Aviation Administration Civil

Aviation Security Office that serves the

place where the flight will originate or

that is responsible for the aircraft

operator’s overall aviation security

program. The nearest Civil Aviation

Security Office may be located by

calling the FAA Duty Officer, 202–267–

3333 (any hour).

(2) Noncertificate-Holding Aircraft

(Those Which Operate Under 14 CFR

Part 91): The Federal Aviation

Administration Civil Aviation Security

Office that serves the place where the

flight will originate. The nearest Civil

Aviation Security Office may be located

by calling the FAA Duty Officer, 202–

267–3333 (any hour).

(3) Motor Vehicle Transportation:

Director, Office of Motor Carrier

Research and Standards, Federal

Highway Administration, U.S.

Department of Transportation,

Washington, DC 20590–0001, 202–366–

4001 (day); 202–267–2100 (night).

(4) Rail Transportation: Staff Director,

Hazardous Materials Division, Office of

Safety Assurance and Compliance,

Federal Railroad Administration, U.S.

Department of Transportation,

Washington, DC 20590–0001, 202–366–

0509 or 366–0523 (day); 202–267–2100

(night).

(5) Water Transportation: Chief,

Hazardous Materials Standards Branch,

Operating and Environmental Standards

Division, United States Coast Guard,

U.S. Department of Transportation,

Washington, DC 20593–0001, 202–267–

1577 (day); 202–267–2100 (night).

(e) On receipt of all information

necessary to process the application, the

receiving Department of Transportation

official transmits to the Associate

Administrator, by the most rapid

available means of communication, an

evaluation as to whether an emergency

exists under § 107.117(a) and, if

appropriate, recommendations as to the

conditions to be included in the

exemption. If the Associate

Administrator determines that an

emergency exists under § 107.117(a) and

that, with reference to the criteria of

§ 107.113(f), granting of the application

is in the public interest, the Associate

Administrator grants the application

subject to such terms as necessary and

immediately notifies the applicant. If

the Associate Administrator determines

that an emergency does not exist or that

granting of the application is not in the

public interest, the applicant

immediately is so notified.

(f) A determination that an emergency

does not exist is not subject to

reconsideration under § 107.123 of this

part.

(g) Within 90 days following issuance

of an emergency exemption, the

Associate Administrator will publish, in

the Federal Register, a notice of

issuance with a statement of the basis

for the finding of emergency and the

scope and duration of the exemption.

§ 107.121 Modification, suspension or

termination of exemption or grant of party

status.

(a) The Associate Administrator may

modify an exemption or grant of party

status on finding that—

(1) Modification is necessary so that

an exemption reflects current statutes

and regulations; or

(2) Modification is required by

changed circumstances to meet the

standards of § 107.113(f).

(b) The Associate Administrator may

modify, suspend or terminate an

exemption or grant of party status, as

appropriate, on finding that—

(1) Because of a change in

circumstances, the exemption or party

status no longer is needed or no longer

would be granted if applied for;

(2) The application contained

inaccurate or incomplete information,

and the exemption or party status would

not have been granted had the

application been accurate and complete;

(3) The application contained

deliberately inaccurate or incomplete

information; or

(4) The holder or party knowingly has

violated the terms of the exemption or

an applicable requirement of this

chapter, in a manner demonstrating the

holder or party is not fit to conduct the

activity authorized by the exemption.

(c) Except as provided in paragraph

(d) of this section, before an exemption

or grant of party status is modified,

suspended or terminated, the Associate

Administrator notifies the holder or

party in writing of the proposed action

and the reasons for it, and provides an

opportunity to show cause why the

proposed action should not be taken.

(1) The holder or party may file a

written response that shows cause why

the proposed action should not be taken

within 30 days of receipt of notice of the

proposed action.

(2) After considering the holder’s or

party’s written response, or after 30 days

have passed without response since

receipt of the notice, the Associate

Administrator notifies the holder or

party in writing of the final decision

with a brief statement of reasons.

(d) The Associate Administrator, if

necessary to avoid a risk of significant

harm to persons or property, may in the

notification declare the proposed action

immediately effective.

§ 107.123 Reconsideration.

(a) An applicant for exemption, an

exemption holder, or an applicant for

party status to an exemption may

request that the Associate Administrator

reconsider a decision under

§ 107.113(g), § 107.117(e) or § 107.121(c)

of this part. The request must—

(1) Be in writing and filed within 20

days of receipt of the decision;

(2) State in detail any alleged errors of

fact and law;

(3) Enclose any additional

information needed to support the

request to reconsider; and
21098 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

(4) State in detail the modification of

the final decision sought.

(b) The Associate Administrator

grants or denies, in whole or in part, the

relief requested and informs the

requesting person in writing of the

decision. If necessary to avoid a risk of

significant harm to persons or property,

the Associate Administrator may, in the

notification, declare the action

immediately effective.

§ 107.125 Appeal.

(a) A person who requested

reconsideration under § 107.123 and is

denied the relief requested may appeal

to the Administrator. The appeal must—

(1) Be in writing and filed within 30

days of receipt of the Associate

Administrator’s decision on

reconsideration;

(2) State in detail any alleged errors of

fact and law;

(3) Enclose any additional

information needed to support the

appeal; and

(4) State in detail the modification of

the final decision sought.

(b) The Administrator, if necessary to

avoid a risk of significant harm to

persons or property, may declare the

Associate Administrator’s action

effective pending a decision on appeal.

(c) The Administrator grants or

denies, in whole or in part, the relief

requested and informs the appellant in

writing of the decision. The

Administrator’s decision is the final

administrative action.

§ 107.127 Availability of documents for

public inspection.

(a) Documents related to an

application under this subpart,

including the application itself, are

available for public inspection, except

as specified in paragraph (b) of this

section, at the Office of the Associate

Administrator for Hazardous Materials

Safety, Research and Special Programs

Administration, Dockets Unit, U.S.

Department of Transportation, 400 7th

Street, SW, Washington, DC 20590–

0001, Room 8421. Office hours are 8:30

a.m. to 5:00 p.m., Monday through

Friday, except holidays when the office

is closed. Copies of available documents

may be obtained as provided in part 7

of this title.

(b) Documents available for

inspection do not include materials

determined to be withheld from public

disclosure under § 107.5 and in

accordance with the applicable

provisions of section 552(b) of title 5,

United States Code, and part 7 of this

title.

7. In § 107.201, paragraph (d) is

revised to read as follows:

§ 107.201 Purpose and scope.

* * * * *

(d) Unless otherwise ordered by the

Associate Administrator, an application

for a preemption determination which

includes an application for a waiver of

preemption will be treated and

processed solely as an application for a

preemption determination.

8. In § 107.202, in paragraph (a), the

introductory text is revised to read as

follows:

§ 107.202 Standards for determining

preemption.

(a) Except as provided in § 107.221

and unless otherwise authorized by

Federal law, any requirement of a State

or political subdivision thereof or an

Indian tribe, that concerns one of the

following subjects and that is not

substantively the same as any provision

of the Federal hazardous material

transportation law, this subchapter or

subchapter C that concerns that subject,

is preempted:

* * * * *

§ 107.202 Amended]

9. In addition, in § 107.202, in

paragraph (b)(3), the wording ‘‘49 U.S.C.

5125 (b) or (c)’’ is revised to read ‘‘49

U.S.C. 5125(c)’’.

§ 107.203 [Amended]

10. In § 107.203, the following

changes are made:

a. In paragraph (a), the wording ‘‘a

State, political subdivision, or Indian

tribe’’ is revised to read ‘‘a State or

political subdivision thereof or an

Indian tribe’’ each place it appears.

b. In paragraphs (a) and (d), the

phrase ‘‘for Hazardous Materials Safety’’

is removed immediately following

‘‘Associate Administrator’’ each place it

appears.

11. Section 107.205 is revised to read

as follows:

§ 107.205 Notice.

(a) If the applicant is other than a

State, political subdivision, or Indian

tribe, the applicant shall mail a copy of

the application to the State, political

subdivision, or Indian tribe concerned

accompanied by a statement that the

State, political subdivision, or Indian

tribe may submit comments regarding

the application to the Associate

Administrator. The application filed

with the Associate Administrator must

include a certification that the applicant

has complied with this paragraph and

must include the names and addresses

of each State, political subdivision, or

Indian tribe official to whom a copy of

the application was sent.

(b) The Associate Administrator will

publish notice of, including an

opportunity to comment on, an

application in the Federal Register and

may notify in writing any person readily

identifiable as affected by the outcome

of the determination.

(c) Each person submitting written

comments to the Associate

Administrator with respect to an

application filed under this section shall

send a copy of the comments to the

applicant and certify to the Associate

Administrator that he or she has

complied with this requirement. The

Associate Administrator may notify

other persons participating in the

proceeding of the comments and

provide an opportunity for those other

persons to respond. Late-filed comments

are considered so far as practicable.

§ 107.207 [Amended]

12. In § 107.207, the following

changes are made:

a. In paragraph (a), the wording ‘‘or

her’’ is added immediately following the

word ‘‘his’’ each place it appears.

b. In paragraphs (a) and (b), the

wording ‘‘for Hazardous Materials

Safety’’ is removed immediately

following ‘‘Associate Administrator’’

each place it appears.

c. In paragraphs (a) and (b), the

wording ‘‘or she’’ is added immediately

following the word ‘‘he’’ each place it

appears.

13. In § 107.209, paragraph (b) is

removed, and paragraphs (c), (d), and (e)

are redesignated as paragraphs (b), (c),

and (d), respectively, and newly

designated paragraph (c) is revised to

read as follows:

§ 107.209 Determination.

* * * * *

(c) The Associate Administrator

provides a copy of the determination to

the applicant and to any other person

who substantially participated in the

proceeding or requested in comments to

the docket to be notified of the

determination. A copy of each

determination is placed on file in the

public docket. The Associate

Administrator will publish the

determination or notice of the

determination in the Federal Register.

* * * * *

§ 107.209 [Amended]

14. In addition, in § 107.209, in

paragraphs (a) and (b), the phrase ‘‘for

Hazardous Materials Safety’’ is removed

following ‘‘Associate Administrator’’

each place it appears.

15. In § 107.211, paragraph (a) is

revised and a sentence is added at the

end of paragraph (c) to read as follows:
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21099

§ 107.211 Petition for reconsideration.

(a) Any person aggrieved by a

determination issued under § 107.209

may file a petition for reconsideration

with the Associate Administrator. The

petition must be filed within 20 days of

publication of the determination in the

Federal Register.

* * * * *

(c) * * * Late-filed comments are

considered so far as practicable.

* * * * *

16. A new § 107.213 is added to read

as follows:

§ 107.213 Judicial review.

A party to a proceeding under

§ 107.203(a) may seek review by the

appropriate district court of the United

States of a decision of the Associate

Administrator by filing a petition with

the court within 60 days after the

Associate Administrator’s determination

becomes final. The determination

becomes final when it is published in

the Federal Register.

§ 107.215 [Amended]

17. In § 107.215, in paragraph (a), the

phrase ‘‘for Hazardous Materials Safety’’

is removed immediately following

‘‘Associate Administrator’’ each place it

appears, and the wording ‘‘State,

political subdivision, or Indian tribe’’ is

revised to read ‘‘State or political

subdivision thereof or an Indian tribe.’’

18. In § 107.217, paragraph (d) is

revised to read as follows:

§ 107.217 Notice.

* * * * *

(d) The Associate Administrator may

notify any other persons who may be

affected by the outcome of a

determination on the application.

* * * * *

§ 107.217 [Amended]

19. In addition, in § 107.217, in

paragraphs (a), (b), (c), and (e), the

phrase ‘‘for Hazardous Materials Safety’’

is removed immediately following the

wording ‘‘Associate Administrator’’

each place it appears, and the following

sentence is added at the end of

paragraph (c):

* * * * *

(c) * * * Late-filed comments are

considered so far as practicable.

§ 107.219 [Amended]

20. In § 107.219, the following

changes are made:

a. In paragraphs (a), (b), (c), and (d),

the phrase ‘‘for Hazardous Materials

Safety’’ is removed immediately

following the wording ‘‘Associate

Administrator’’ each place it appears.

b. In paragraphs (a) and (b), the

wording ‘‘or she’’ is added immediately

following ‘‘he,’’ each place it appears,

and the wording ‘‘or her’’ is added

immediately following ‘‘his,’’ each place

it appears.

c. In paragraphs (c)(1) and (c)(2), the

phrase ‘‘State or political subdivision’’

is revised to read ‘‘State or political

subdivision thereof or Indian tribe’’

each place it appears.

21. Section 107.221 is revised to read

as follows:

§ 107.221 Determination.

(a) After considering the application

and other relevant information received

or obtained during the proceeding, the

Associate Administrator issues a

determination.

(b) The Associate Administrator may

issue a waiver of preemption only on

finding that the requirement of the State

or political subdivision thereof or

Indian tribe affords the public a level of

safety at least equal to that afforded by

the requirements of the Federal

hazardous material transportation law

or the regulations issued thereunder and

does not unreasonably burden

commerce. In determining if the

requirement of the State or political

subdivision thereof or Indian tribe

unreasonably burdens commerce, the

Associate Administrator considers:

(1) The extent to which increased

costs and impairment of efficiency

result from the requirement of the State

or political subdivision thereof or

Indian tribe.

(2) Whether the requirement of the

State or political subdivision thereof or

Indian tribe has a rational basis.

(3) Whether the requirement of the

State or political subdivision thereof or

Indian tribe achieves its stated purpose.

(4) Whether there is need for

uniformity with regard to the subject

concerned and if so, whether the

requirement of the State or political

subdivision thereof or Indian tribe

competes or conflicts with those of

other States or political subdivisions

thereof or Indian tribes.

(c) The determination includes a

written statement setting forth relevant

facts and legal bases and providing that

any person aggrieved by the

determination may file a petition for

reconsideration with the Associate

Administrator.

(d) The Associate Administrator

provides a copy of the determination to

the applicant and to any other person

who substantially participated in the

proceeding or requested in comments to

the docket to be notified of the

determination. A copy of the

determination is placed on file in the

public docket. The Associate

Administrator will publish the

determination or notice of the

determination in the Federal Register.

(e) A determination under this section

constitutes an administrative finding of

whether a particular requirement of a

State or political subdivision thereof or

Indian tribe is preempted under the

Federal hazardous material

transportation law or any regulation

issued thereunder, or whether

preemption is waived.

22. In § 107.223, paragraph (a) is

revised to read as follows, and the

following sentence is added at the end

of paragraph (c):

§ 107.223 Petition for reconsideration.

(a) Any person aggrieved by a

determination under § 107.221 may file

a petition for reconsideration with the

Associate Administrator. The petition

must be filed within 20 days of

publication of the determination in the

Federal Register.

* * * * *

(c) * * * Late-filed comments are

considered so far as practicable.

23. Section 107.227 is revised to read

as follows:

§ 107.227 Judicial review.

A party to a proceeding under

§ 107.215(a) may seek review by the

appropriate district court of the United

States of a decision of the Associate

Administrator by filing a petition with

the court within 60 days after the

Associate Administrator’s determination

becomes final. The determination

becomes final when it is published in

the Federal Register.

§ 107.299 [Removed]

24. Section 107.299 is removed.

25. In § 107.305, paragraph (b) is

revised to read as follows:

§ 107.305 Investigations.

* * * * *

(b) Investigations and Inspections.

Investigations under 49 U.S.C. 5121(a)

are conducted by personnel duly

authorized for that purpose by the

Associate Administrator. Inspections

under 49 U.S.C. 5121(c) are conducted

by Hazardous Materials Enforcement

Specialists, also known as ‘‘hazmat

inspectors’’ or ‘‘inspectors,’’ whom the

Associate Administrator has designated

for that purpose.

(1) An inspector will, on request,

present his or her credentials for

examination, but the credentials may

not be reproduced.

(2) An inspector may administer oaths

and receive affirmations in any matter

under investigation by the Associate

Administrator.
21100 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

(3) An inspector may gather

information by reasonable means

including, but not limited to,

interviews, statements, photocopying,

photography, and video- and audiorecording.

(4) With concurrence of the Director,

Office of Hazardous Materials

Enforcement, Research and Special

Programs Administration, an inspector

may issue a subpoena for the production

of documentary or other tangible

evidence if, on the basis of information

available to the inspector, the

documents and evidence materially will

advance a determination of compliance

with this subchapter or subchapter C.

Service of a subpoena shall be in

accordance with § 107.13 (c) and (d). A

person to whom a subpoena is directed

may seek review of the subpoena by

applying to the Office of Chief Counsel

in accordance with § 107.13(h). A

subpoena issued under this paragraph

may be enforced in accordance with

§ 107.13(i).

* * * * *

§ 107.315 [Amended]

26. In § 107.315, in paragraphs (c) and

(d), the last sentence is removed.

27. In § 107.331, the introductory

paragraph and paragraph (d) are revised

to read as follows:

§ 107.331 Assessment considerations.

After finding a knowing violation

under this subpart, the Office of Chief

Counsel assesses a civil penalty taking

the following into account:

* * * * *

(d) The respondent’s prior violations;

* * * * *

28. A new subpart H of part 107 is

added to read as follows:

Subpart H—Approvals, Registrations and

Submissions

Sec.

107.701 Purpose and scope.

107.705 Registrations, reports, and

applications for approval.

107.709 Processing of an application for

approval, including an application for

renewal or modification.

107.711 Withdrawal.

107.713 Approval modification, suspension

or termination.

107.715 Reconsideration.

107.717 Appeal.

§ 107.701 Purpose and scope.

This subpart prescribes procedures for

the issuance, modification and

termination of approvals, and the

submission of registrations and reports,

as required by this chapter.

(b) The procedures of this subpart are

in addition to any requirements in

subchapter C of this chapter applicable

to a specific approval, registration or

report. If compliance with both a

specific requirement of subchapter C of

this chapter and a procedure of this

subpart is not possible, the specific

requirement applies.

(c) Registration under subpart F or G

of this part is not subject to the

procedures of this subpart.

§ 107.705 Registrations, reports, and

applications for approval.

(a) A person filing a registration,

report, or application for an approval, or

a renewal or modification of an

approval subject to the provisions of

this subpart must—

(1) File the registration, report, or

application with the Associate

Administrator for Hazardous Materials

Safety, Research and Special Programs

Administration, U.S. Department of

Transportation, 400 7th Street, SW,

Washington, DC 20590–0001, Attention:

Approvals, DHM–32;

(2) Identify the section of the chapter

under which the registration, report, or

application is made;

(3) If a report is required by an

approval, a registration or an exemption,

identify the approval, registration or

exemption number;

(4) Provide the name, street, mailing

address, and telephone number of the

person on whose behalf the registration,

report, or application is made and, if

different, the person making the filing;

(5) If the person on whose behalf the

filing is made is not a resident of the

United States, provide a designation of

agent for service in accordance with

§ 107.7;

(6) Provide a description of the

activity for which the registration or

report is required; and

(7) Provide additional information as

requested by the Associate

Administrator, if the Associate

Administrator determines that a filing

lacks pertinent information or otherwise

does not comply with applicable

requirements.

(b) In addition to the provisions in

paragraph (a) for an approval, an

application for an approval, or an

application for modification or renewal

of an approval, the applicant must

provide—

(1) A description of the activity for

which the approval is required;

(2) The proposed duration of the

approval;

(3) The transport mode or modes

affected, as applicable;

(4) Any additional information

specified in the section containing the

approval; and

(5) For an approval which provides

exceptions from regulatory requirements

or prohibitions—

(i) Identification of any increased risk

to safety or property that may result if

the approval is granted, and

specification of the measures that the

applicant considers necessary or

appropriate to address that risk; and

(ii) Substantiation, with applicable

analyses or evaluations, if appropriate,

demonstrating that the proposed activity

will achieve a level of safety that is at

least equal to that required by the

regulation.

(c) For an approval with an expiration

date, each application for renewal or

modification must be filed in the same

manner as an original application. If a

complete and conforming renewal

application is filed at least 60 days

before the expiration date of an

approval, the Associate Administrator,

on written request from the applicant,

will issue a written extension to permit

operation under the terms of the expired

approval until a final decision on the

application for renewal has been made.

Operation under an expired approval is

prohibited absent a written extension.

This paragraph does not limit the

authority of the Associate Administrator

to modify, suspend or terminate an

approval under § 107.713.

(d) To request confidential treatment

for information contained in the

application, the applicant shall comply

with § 107.5(a).

§ 107.709 Processing of an application for

approval, including an application for

renewal or modification.

(a) No public hearing or other formal

proceeding is required under this

subpart before the disposition of an

application.

(b) At any time during the processing

of an application, the Associate

Administrator may request additional

information from the applicant. If the

applicant does not respond to a written

request for additional information

within 30 days of the date the request

was received, the application may be

deemed incomplete and denied.

However, if the applicant responds in

writing within the 30-day period

requesting an additional 30 days within

which it will gather the requested

information, the Associate

Administrator may grant the 30-day

extension.

(c) The Associate Administrator may

grant or deny an application, in whole

or in part. At the Associate

Administrator’s discretion, an

application may be granted subject to

provisions that are appropriate to

protect health, safety and property. The

Associate Administrator may impose

additional provisions not specified in
Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations 21101

the application, or delete conditions in

the application which are unnecessary.

(d) The Associate Administrator may

grant an application on finding that—

(1) The application complies with this

subpart;

(2) The application demonstrates that

the proposed activity will achieve a

level of safety that—

(i) Is at least equal to that required by

the regulation, or

(ii) If the regulations do not establish

a level of safety, is consistent with the

public interest and adequately will

protect against the risks to life and

property inherent in the transportation

of hazardous materials in commerce;

(3) The application states all material

facts, and contains no materially false or

materially misleading statement;

(4) The applicant meets the

qualifications required by applicable

regulations; and

(5) The applicant is fit to conduct the

activity authorized by the approval, or

renewal or modification of approval.

This assessment may be based on

information in the application, prior

compliance history of the applicant, and

other information available to the

Associate Administrator.

(e) Unless otherwise specified in this

chapter or by the Associate

Administrator, an approval in which a

term is not specified does not expire.

(f) The Associate Administrator

notifies the applicant in writing of the

decision on the application. A denial

contains a brief statement of reasons.

§ 107.711 Withdrawal.

An application may be withdrawn at

any time before a decision to grant or

deny it is made. Withdrawal of an

application does not authorize the

removal of any related records from the

RSPA dockets or files. Applications that

are eligible for confidential treatment

under § 107.5 will remain confidential

after the application is withdrawn. The

duration of this confidential treatment

for trade secrets and commercial or

financial information is indefinite,

unless the party requesting the

confidential treatment of the materials

notifies the Associate Administrator that

the confidential treatment is no longer

required.

§ 107.713 Approval modification,

suspension or termination.

(a) The Associate Administrator may

modify an approval on finding that—

(1) Modification is necessary to

conform an existing approval to relevant

statutes and regulations as they may be

amended from time to time; or

(2) Modification is required by

changed circumstances to enable the

approval to continue to meet the

standards of § 107.709(d).

(b) The Associate Administrator may

modify, suspend or terminate an

approval, as appropriate, on finding

that—

(1) Because of a change in

circumstances, the approval no longer is

needed or no longer would be granted

if applied for;

(2) The application contained

inaccurate or incomplete information,

and the approval would not have been

granted had the application been

accurate and complete;

(3) The application contained

deliberately inaccurate or incomplete

information; or

(4) The holder knowingly has violated

the terms of the approval or an

applicable requirement of this chapter

in a manner demonstrating lack of

fitness to conduct the activity for which

the approval is required.

(c) Except as provided in paragraph

(d) of this section, before an approval is

modified, suspended or terminated, the

Associate Administrator notifies the

holder in writing of the proposed action

and the reasons for it, and provides an

opportunity to show cause why the

proposed action should not be taken.

(1) The holder may file a written

response with the Associate

Administrator within 30 days of receipt

of notice of the proposed action.

(2) After considering the holder’s or

party’s written response, or after 30 days

have passed without response since

receipt of the notice, the Associate

Administrator notifies the holder in

writing of the final decision with a brief

statement of reasons.

(d) The Associate Administrator, if

necessary to avoid a risk of significant

harm to persons or property, may in the

notification declare the proposed action

immediately effective.

§ 107.715 Reconsideration.

(a) An applicant or a holder may

request that the Associate Administrator

reconsider a decision under § 107.709(f)

or § 107.713(c). The request must:

(1) Be in writing and filed within 20

days of receipt of the decision;

(2) State in detail any alleged errors of

fact and law;

(3) Enclose any additional

information needed to support the

request to reconsider; and

(4) State in detail the modification of

the final decision sought.

(b) The Associate Administrator

considers newly submitted information

on a showing that the information could

not reasonably have been submitted

during application processing.

(c) The Associate Administrator

grants or denies, in whole or in part, the

relief requested and informs the

requesting person in writing of the

decision.

§ 107.717 Appeal.

(a) A person who requested

reconsideration under § 107.715 may

appeal to the Administrator the

Associate Administrator’s decision on

the request. The appeal must:

(1) Be in writing and filed within 30

days of receipt of the Associate

Administrator’s decision on

reconsideration;

(2) State in detail any alleged errors of

fact and law;

(3) Enclose any additional

information needed to support the

appeal; and

(4) State in detail the modification of

the final decision sought.

(b) The Administrator, if necessary to

avoid a risk of significant harm to

persons or property, may declare the

Associate Administrator’s action

effective pending a decision on appeal.

(c) The Administrator grants or

denies, in whole or in part, the relief

requested and informs the appellant in

writing of the decision on appeal. The

Administrator’s decision on appeal is

the final administrative action.

PART 171—GENERAL INFORMATION,

REGULATIONS, AND DEFINITIONS

29. The authority citation for part 171

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 171.1 [Amended]

30. In § 171.1, in the introductory text

of paragraph (a), the wording ‘‘in

commerce’’ is added immediately

following the wording ‘‘materials’’ and

preceding ‘‘by’’.

31. Also in § 171.1, a new paragraph

(d) is added to read as follows:

§ 171.1 Purpose and scope.

* * * * *

(d) The use of terms and symbols

prescribed in this subchapter for the

marking, labeling, placarding and

description of hazardous materials and

packagings used in their transport.

32. In § 171.2, paragraphs (a), (b), (c)

and (d) are revised and a new paragraph

(h) is added to read as follows:

§ 171.2 General requirements.

(a) No person may offer or accept a

hazardous material for transportation in

commerce unless that person is

registered in conformance with subpart

G of part 107 of this chapter, if

applicable, and the hazardous material

is properly classed, described,

packaged, marked, labeled, and in
21102 Federal Register / Vol. 61, No. 91 / Thursday, May 9, 1996 / Rules and Regulations

condition for shipment as required or

authorized by applicable requirements

of this subchapter, or an exemption,

approval or registration issued under

this subchapter or subchapter A of this

chapter.

(b) No person may transport a

hazardous material in commerce unless

that person is registered in conformance

with subpart G of part 107 of this

chapter, if applicable, and the

hazardous material is handled and

transported in accordance with

applicable requirements of this

subchapter, or an exemption, approval

or registration issued under this

subchapter or subchapter A of this

chapter.

(c) No person may represent, mark,

certify, sell, or offer a packaging or

container as meeting the requirements

of this subchapter or an exemption,

approval or registration issued under

this subchapter or subchapter A of this

chapter, governing its use in the

transportation in commerce of a

hazardous material, whether or not it is

used or intended to be used for the

transportation of a hazardous material,

unless the packaging or container is

manufactured, fabricated, marked,

maintained, reconditioned, repaired and

retested, as appropriate, in accordance

with applicable requirements of this

subchapter, or an exemption, approval

or registration issued under this

subchapter or subchapter A of this

chapter.

(d) The representations, markings,

and certifications subject to the

prohibitions of paragraph (c) of this

section include, but are not limited to—

(1) Specification identifications that

include the letters ‘‘ICC,’’ ‘‘DOT,’’

‘‘MC,’’ or ‘‘UN’’;

(2) Exemption, approval, and

registration numbers that include the

letters ‘‘DOT,’’ ‘‘EX,’’ ‘‘M,’’ or ‘‘R’’; and

(3) Test dates associated with

specification, registration, approval,

retest or exemption markings indicating

compliance with a test or retest

requirement of this subchapter, or an

exemption, an approval or a registration

issued under this subchapter or

subchapter A of this chapter.

* * * * *

(h) No person shall—

(1) Falsify or alter an exemption,

approval, registration or other grant of

authority issued under this subchapter

or subchapter A of this chapter; or

(2) Offer a hazardous material for

transportation or transport a hazardous

material in commerce, or represent,

mark, certify, or sell a packaging or

container, under a false or altered

exemption, approval, registration or

other grant of authority issued under

this subchapter or subchapter A of this

chapter.

§ 171.3 [Amended]

33. In § 171.3, paragraph (c) and the

Note are removed, and paragraph (d) is

redesignated as paragraph (c).

34. In § 171.8, the definitions of

‘‘Approval’’ and ‘‘Exemption’’ are added

in alphabetical order and the definition

of ‘‘Person’’ is revised to read as follows:

§ 171.8 Definitions and abbreviations.

* * * * *

Approval means a written

authorization, including a competent

authority approval, from the Associate

Administrator to perform a function for

which prior authorization by the

Associate Administrator is required

under subchapter C of this chapter.

* * * * *

Exemption means a document issued

under the authority of 49 U.S.C. 5117 by

the Associate Administrator that

authorizes a person to perform a

function that is not otherwise

authorized under this subchapter,

subchapter C, or other regulations

issued under 49 U.S.C. 5101–5127 (e.g.,

Federal Highway Administration

routing).

* * * * *

Person means an individual, firm,

copartnership, corporation, company,

association, joint-stock association,

including any trustee, receiver, assignee,

or similar representative thereof; or

government, Indian tribe, or agency or

instrumentality of any government or

Indian tribe when it offers hazardous

material for transportation in commerce

or transports hazardous material to

further a commercial enterprise, but

such term does not include:

(1) The United States Postal Service;

(2) For the purposes of 49 U.S.C. 5123

and 5124, any agency or instrumentality

of the Federal Government.

* * * * *

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

AND PACKAGINGS

35. The authority citation for Part 173

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

36. In § 173.22a, a new paragraph (c)

is added to read as follows:

§ 173.22a Use of packagings authorized

under exemptions.

* * * * *

(c) When an exemption issued to a

person who offers a hazardous material

contains requirements that apply to a

carrier of the hazardous material, the

offeror shall furnish a copy of the

exemption to the carrier before or at the

time a shipment is tendered. When the

provisions of the exemption require it to

be in the possession of a carrier during

transportation in commerce, the carrier

shall maintain the copy of the

exemption in the same manner as

required for a shipping paper.

PART 178—SPECIFICATIONS FOR

PACKAGINGS

37. The authority citation for Part 178

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

38. In § 178.3, a new paragraph (d) is

added to read as follows:

§ 178.3 Marking of packagings.

* * * * *

(d) No person may mark or otherwise

certify a packaging or container as

meeting the requirements of a

manufacturing exemption unless that

person is the holder of or a party to that

exemption, an agent of the holder or

party for the purpose of marking or

certification, or a third party tester.

Issued in Washington, DC on May 2, 1996,

under authority delegated in 49 CFR part 1.

Rose A. McMurray,

Acting Deputy Administrator, Research and

Special Programs Administration.

[FR Doc. 96–11400 Filed 5–8–96; 8:45 am]

BILLING CODE 4910–60–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 663

[Docket No. 951227306–5306–01; I.D.

043096A]

Pacific Coast Groundfish Fishery;

Closure and Trip Limit Reduction

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Closure; fishing restrictions;

request for comments.

SUMMARY: NMFS announces the closure

of the open access fishery for

thornyheads taken and retained north of

Point Conception, CA (34°27′ N. lat.),

and a further restriction to the open

access fishery for sablefish taken with

nontrawl gear north of the Conception

subarea (36°00′ N. lat.). This action is

authorized by the Pacific Coast

Groundfish Fishery Management Plan