`[Federal Register Volume 61, Number 91 (Thursday, May 9, 1996)]
[Rules and Regulations]
[Pages 21084-21102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11400]



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DEPARTMENT OF TRANSPORTATION
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.

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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

[[Page 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 
Sec. 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


Sec. 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., Sec. 173.21) in the HMR and is 
specifically authorized in that regulation. Approvals generally are 
limited in scope, such as in Sec. 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 Sec. 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,

[[Page 21086]]

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 Sec. 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
    Sec. 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, self-contained 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 Sec. 107.105). Additionally, RSPA is 
including language in the rule under the ``emergency processing'' 
provisions of Sec. 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

[[Page 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.
    Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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

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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 Sec. 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 Sec. 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 Sec. 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.
    Sec. 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 Sec. 107.113 (e) and (f) for the 
manner by which the Associate Administrator grants or denies 
applications.
    Sec. 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

[[Page 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.
    Sec. 107.111  Withdrawal. One commenter requested that RSPA clarify 
that all documents deemed confidential by the Associate Administrator 
in accordance with Sec. 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.
    Sec. 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 Sec. 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 Sec. 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

[[Page 21090]]

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 Sec. 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.
    Sec. 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 non-
government 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.
    Sec. 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 Sec. 107.105(a)(17) for analyses, data, or test 
results. In response to comments to the proposed application procedures 
in Sec. 107.105, RSPA is clarifying the extent to which applicants are 
required to supply analyses, data, or test results. See preamble 
discussion under Sec. 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.).

[[Page 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.
    Sec. 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 Sec. 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.
    Sec. 107.123  Reconsideration. One commenter suggested that RSPA 
clarify that applications denied pursuant to Sec. 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 
Secs. 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.
    Sec. 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 Secs. 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 Sec. 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.
    Sec. 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 pre-HMTUSA 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.
    Sec. 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

[[Page 21092]]

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.
    Sec. 107.213  Judicial review. In the NPRM, RSPA proposed to add a 
new section to allow a party to a proceeding under Sec. 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.
    Sec. 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.
    Sec. 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.
    Sec. 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.
    Sec. 107.227  Judicial review. RSPA is amending this section for 
consistency with Sec. 107.213. See preamble discussion under 
Sec. 107.213.
Subpart D--Enforcement
    Sec. 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 Sec. 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 
Sec. 107.305(b) and subparagraphs (1), (2), and (3) which refer to 
``inspectors.''
    Sec. 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.
    Sec. 107.331  Assessment considerations. This section is adopted 
essentially as proposed, with a minor editorial revision.
Subpart H--Approvals, Registrations and Submissions.
    Sec. 107.107  Purpose and scope. This section is adopted as 
proposed.
    Sec. 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.
    Sec. 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 Sec. 107.705 and 
the requirements for an approval application specified in Sec. 107.707 
are essentially the same, RSPA is eliminating the separate language of 
Sec. 107.707, and combining the ``registration and reporting'' 
requirements of Sec. 107.707 with the ``approval application'' 
requirements Sec. 107.705, in a section entitled ``Registrations, 
reports, and applications for approval.''
    Sec. 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 Sec. 107.113 and RSPA is modifying this section 
similarly.
    Sec. 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 
Sec. 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 Sec. 107.111.
    Sec. 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 Sec. 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.
    Sec. 107.715  Reconsideration. Paragraph (b) is adopted as 
proposed.
    Sec. 107.717  Appeal. Proposed paragraph (c) is not adopted for the 
same reasons as discussed under Sec. 107.715 above. Otherwise, the 
section is adopted as proposed.

[[Page 21093]]

Part 171

    Sec. 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.
    Sec. 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.
    Sec. 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.
    Sec. 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

    Sec. 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 Sec. 172.302(c), RSPA 
should cross-reference Sec. 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

    Sec. 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

    Sec. 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

[[Page 21094]]

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 Sec. 107.3, definitions are added in alphabetical order to 
read as follows:


Sec. 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 Sec. 171.15 or Sec. 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.
* * * * *

[[Page 21095]]

    4. In Sec. 107.5, paragraph (a) is revised to read as follows:


Sec. 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.
* * * * *


Sec. 107.5  [Amended]

    5. In addition, in Sec. 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.
 * * * * *


Sec. 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.


Sec. 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 Sec. 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 Sec. 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 
Sec. 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.

Sec. 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;

[[Page 21096]]

    (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 
Sec. 107.7.
    (c) The Associate Administrator grants or denies an application for 
party status in the manner specified in Sec. 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 Sec. 107.109 apply.


Sec. 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.


Sec. 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 
Sec. 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.


Sec. 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 Sec. 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

[[Page 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.


Sec. 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 
Sec. 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 Sec. 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 Sec. 107.117(a) 
and that, with reference to the criteria of Sec. 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 Sec. 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 107.113(g), 
Sec. 107.117(e) or Sec. 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

[[Page 21098]]

    (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.


Sec. 107.125  Appeal.

    (a) A person who requested reconsideration under Sec. 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.


Sec. 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 Sec. 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 Sec. 107.201, paragraph (d) is revised to read as follows:


Sec. 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 Sec. 107.202, in paragraph (a), the introductory text is 
revised to read as follows:


Sec. 107.202  Standards for determining preemption.

    (a) Except as provided in Sec. 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:
* * * * *


Sec. 107.202  Amended]

    9. In addition, in Sec. 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)''.


Sec. 107.203  [Amended]

    10. In Sec. 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:


Sec. 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.


Sec. 107.207  [Amended]

    12. In Sec. 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 Sec. 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:


Sec. 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.
* * * * *


Sec. 107.209  [Amended]

    14. In addition, in Sec. 107.209, in paragraphs (a) and (b), the 
phrase ``for Hazardous Materials Safety'' is removed following 
``Associate Administrator'' each place it appears.
    15. In Sec. 107.211, paragraph (a) is revised and a sentence is 
added at the end of paragraph (c) to read as follows:

[[Page 21099]]

Sec. 107.211  Petition for reconsideration.

    (a) Any person aggrieved by a determination issued under 
Sec. 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 Sec. 107.213 is added to read as follows:


Sec. 107.213  Judicial review.

    A party to a proceeding under Sec. 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.


Sec. 107.215  [Amended]

    17. In Sec. 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 Sec. 107.217, paragraph (d) is revised to read as follows:


Sec. 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.
* * * * *


Sec. 107.217  [Amended]

    19. In addition, in Sec. 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.


Sec. 107.219  [Amended]

    20. In Sec. 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:


Sec. 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 Sec. 107.223, paragraph (a) is revised to read as follows, 
and the following sentence is added at the end of paragraph (c):


Sec. 107.223  Petition for reconsideration.

    (a) Any person aggrieved by a determination under Sec. 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:


Sec. 107.227  Judicial review.

    A party to a proceeding under Sec. 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.


Sec. 107.299  [Removed]

    24. Section 107.299 is removed.
    25. In Sec. 107.305, paragraph (b) is revised to read as follows:


Sec. 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.

[[Page 21100]]

    (3) An inspector may gather information by reasonable means 
including, but not limited to, interviews, statements, photocopying, 
photography, and video- and audio-recording.
    (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 Sec. 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 
Sec. 107.13(h). A subpoena issued under this paragraph may be enforced 
in accordance with Sec. 107.13(i).
* * * * *


Sec. 107.315  [Amended]

    26. In Sec. 107.315, in paragraphs (c) and (d), the last sentence 
is removed.
    27. In Sec. 107.331, the introductory paragraph and paragraph (d) 
are revised to read as follows:


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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 Sec. 107.713.
    (d) To request confidential treatment for information contained in 
the application, the applicant shall comply with Sec. 107.5(a).


Sec. 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

[[Page 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.


Sec. 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 
Sec. 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.


Sec. 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 Sec. 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.


Sec. 107.715  Reconsideration.

    (a) An applicant or a holder may request that the Associate 
Administrator reconsider a decision under Sec. 107.709(f) or 
Sec. 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.


Sec. 107.717  Appeal.

    (a) A person who requested reconsideration under Sec. 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.


Sec. 171.1  [Amended]

    30. In Sec. 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 Sec. 171.1, a new paragraph (d) is added to read as 
follows:


Sec. 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 Sec. 171.2, paragraphs (a), (b), (c) and (d) are revised and 
a new paragraph (h) is added to read as follows:


Sec. 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

[[Page 21102]]

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.


Sec. 171.3  [Amended]

    33. In Sec. 171.3, paragraph (c) and the Note are removed, and 
paragraph (d) is redesignated as paragraph (c).
    34. In Sec. 171.8, the definitions of ``Approval'' and 
``Exemption'' are added in alphabetical order and the definition of 
``Person'' is revised to read as follows:


Sec. 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 Sec. 173.22a, a new paragraph (c) is added to read as 
follows:


Sec. 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 Sec. 178.3, a new paragraph (d) is added to read as follows:


Sec. 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`