Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 60333 

relationships or distribution of power 

and responsibilities established by 

Congress in the preemption provisions 

of section 408(n)(4) of FFDCA. As such, 

the Agency has determined that this 

action will not have a substantial direct 

effect on States or tribal governments, 

on the relationship between the national 

government and the States or tribal 

governments, or on the distribution of 

power and responsibilities among the 

various levels of government or between 

the Federal Government and Indian 

tribes. Thus, the Agency has determined 

that Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000) do not apply 

to this final rule. In addition, this final 

rule does not impose any enforceable 

duty or contain any unfunded mandate 

as described under Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Public Law 104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note). 

VII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: September 24, 2010. 

Lois Rossi, 

Director, Registration Division, Office of 

Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 

371. 

■ 2. Section 180.609 is amended by: 

i. Removing ‘‘Aspirated grain 

fractions’’ in paragraph (a)(1) in the 

table; 

ii. Adding alphabetically the 

following commodities to the table in 

paragraph (a)(1); and 

iii. Revising the entries for Cattle, 

meat byproducts; Goat, meat 

byproducts; Horse, meat byproducts; 

and Sheep, meat byproducts in the table 

in paragraph (a)(2). 

The amendments read as follows: 

§ 180.609 Fluoxastrobin; tolerances for 

residues. 

(a) General. (1) * * * 

Commodity Parts per million 

* * * * * 

Corn, sweet, forage ........ 13 

Corn, sweet, kernel plus 

cob with husks removed ......................... 0.01 

Corn, sweet, stover ........ 10 

Grain, aspirated grain 

fractions ....................... 60 

* * * * * 

Wheat, bran .................... 0.15 

Wheat, forage ................. 7.0 

Wheat, hay ..................... 17 

Wheat, straw ................... 11 

(2) * * * 

Commodity Parts per million 

* * * * * 

Cattle, meat byproducts 0.20 

* * * * * 

Goat, meat byproducts ... 0.20 

* * * * * 

Horse, meat byproducts 0.20 

* * * * * 

Sheep, meat byproducts 0.20 

* * * * * 

[FR Doc. 2010–24575 Filed 9–29–10; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 171, 173, and 178 

[Docket No. PHMSA–06–25736 (HM–231)] 

RIN 2137–AD89 

Hazardous Material; Miscellaneous 

Packaging Amendments 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Final rule. 

SUMMARY: On February 2, 2010, the 

Pipeline and Hazardous Materials Safety 

Administration published a final rule 

amending the Hazardous Materials 

Regulations to: Revise several packaging 

related definitions; add provisions to 

allow more flexibility when preparing 

and transmitting closure instructions, 

including conditions under which 

closure instructions may be transmitted 

electronically; add a requirement for 

shippers to retain packaging closure 

instructions; incorporate new language 

that allows for a practicable means of 

stenciling the United Nations (UN) 

symbol on packagings; and clarify a 

requirement to document the 

methodology used when determining 

whether a change in packaging 

configuration requires retesting as a new 

design or may be considered a variation 

of a previously tested design. The 

February 2 final rule also incorporated 

requirements for the construction, 

maintenance, and use of Large 

Packagings. This final rule responds to 

one petition for reconsideration and 

four appeals submitted in response to 

the February 2 final rule and also 

corrects several errors that occurred in 

that rulemaking. 

DATES: Effective Date: October 1, 2010. 

Voluntary Compliance Date: 

Compliance with the requirements 

adopted herein is authorized as of 

September 30, 2010. However, persons 

voluntarily complying with these 

regulations should be aware that 

appeals may be received and as a result 

of PHMSA’s evaluation of these appeals, 

the amendments adopted in this final 

rule correction may be revised 

accordingly. 

FOR FURTHER INFORMATION CONTACT: 

Eileen Edmonson, Office of Hazardous 

Materials Standards, (202) 366–8553, or 

Ben Moore, Office of Hazardous 

Materials Technology, (202) 366–4545; 

Pipeline and Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 


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60334 Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 

Avenue, SE., Washington, DC 20590– 

0001. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 2, 2010, PHMSA 

published a final rule under Docket No. 

PHMSA–06–25736 (HM–231) (75 FR 

5376) to: Revise several packaging 

related definitions; add provisions to 

allow more flexibility when preparing 

and transmitting closure instructions, 

including conditions under which 

closure instructions may be transmitted 

electronically; add a requirement for 

shippers to retain packaging closure 

instructions; incorporate new language 

that allows for a practicable means of 

stenciling the ‘‘UN’’ symbol on 

packagings; and clarify a requirement to 

document the methodology used when 

determining whether a change in 

packaging configuration requires 

retesting as a new design or may be 

considered a variation of a previously 

tested design under the Hazardous 

Materials Regulations (HMR; 49 CFR 

Parts 171–180). The February 2 final 

rule also incorporated requirements for 

the construction, maintenance, and use 

of Large Packagings harmonizing these 

packaging requirements with those 

issued under the United Nations 

Recommendations on the Transport of 

Dangerous Goods. This final rule 

corrects several errors in the February 2 

final rule and also responds to four 

appeals and one petition for 

reconsideration. Because these 

amendments do not impose new 

requirements, notice and public 

comment procedures are unnecessary. 

II. Petition for Rulemaking and Appeals 

to the Final Rule 

In response to the February 2 final 

rule, PHMSA received one petition for 

rulemaking from the International 

Vessel Operators Dangerous Goods 

Association (IVODGA), and four appeals 

to the final rule from the following 

companies or organizations: American 

Promotional Events, Inc. (APE); 

Association of American Railroads 

(AAR); Dangerous Goods Advisory 

Council (DGAC); and the Reusable 

Industrial Packaging Association (RIPA). 

All object to certain requirements 

adopted in the February 2 final rule. 

Specifically, they request that PHMSA: 

(1) Eliminate the minimum thickness 

requirements for remanufactured steel 

and plastic drums; (2) reinstate the 

previous definition for ‘‘bulk packaging’’ 

to retain the phrase ‘‘no intermediate 

form of containment;’’ (3) revise the 

compliance date for maintaining closure 

instructions to align with a packaging’s 

retest date; and (4) eliminate the 

vibration testing requirement for UN 

standard Large Packagings. 

A. Bulk Packaging Definition 

The February 2 final rule removed the 

phrase ‘‘no intermediate form of 

containment’’ from the introductory 

language of the bulk packaging 

definition contained in § 171.8. PHMSA 

developed this definition as a 

modification of the definition for bulk 

packagings proposed in the Notice of 

Proposed Rulemaking (NPRM; 

September 1, 2006 (71 FR 52017)) to 

clarify that Large Packagings that 

contain inner packagings are considered 

bulk packagings under the HMR. This 

change placed a greater emphasis on 

packaging design and volumetric 

capacity, and was developed in part 

based on a petition from the Monsanto 

Company (P–1173). In the NPRM, the 

definition for a bulk packaging was 

proposed to read a ‘‘Bulk packaging 

means: (1) Any specification cargo tank, 

tank car, or portable tank constructed 

and marked in accordance with Part 178 

of this subchapter; (2) Any DOT 

Specification 3AX, 3AAX or 3T cylinder 

constructed, marked and certified in 

accordance with Subpart C of Part 178 

of this subchapter; or (3) Any industrial 

Packaging, Type A, Type B, 

Intermediate Bulk Container [IBC], 

Large Packaging, or non-specification 

packaging that has a volumetric capacity 

of greater than 450 L (119 gallons).’’ 

The DGAC, AAR, and IVODGA object 

to this definition as adopted in the 

February 2 final rule stating that the 

adopted language was not proposed in 

the NPRM; therefore, interested parties 

had no opportunity to comment on the 

proposal, which is contrary to the 

Administrative Procedure Act (APA). 

They also state under the revised 

definition that a transport vehicle (e.g., 

a railroad box car, dry goods truck, or 

semitrailer) containing non-bulk 

hazardous materials packages may be 

considered a bulk packaging. 

The September 1, 2006 NPRM 

definition for ‘‘bulk packaging’’ did not 

include the phrase ‘‘no intermediate 

form of containment.’’ Therefore, 

interested parties were given an 

opportunity to comment in response to 

the NPRM on the possible effect the 

removal of this phrase would have on 

the proposed bulk packaging definition. 

Further, in response to the petition for 

reconsideration and four appeals, we are 

clarifying that a Large Packaging with 

one or more inner packagings or articles 

is also a bulk packaging. Thus, in 

§ 171.8 we are reinstating the phrase ‘‘no 

intermediate form of containment’’ in 

the bulk packaging definition, and 

permitting Large Packagings that 

contain articles or inner packagings to 

be defined as bulk packagings. We may 

consider amendments to this definition 

in a future rulemaking. 

B. Non-Bulk Packaging Definition 

PHMSA proposed in the NPRM to 

revise the non-bulk packaging definition 

to eliminate the maximum capacity, 

gross mass, and water capacity limits for 

non-bulk packagings. Specifically, the 

NPRM proposed to define the term as 

follows: A ‘‘Non-bulk packaging means 

(1) any packaging constructed, marked, 

tested and certified as meeting the 

standards specified in Subparts L and M 

of Part 178 of this subchapter; (2) except 

for Specifications 3AX, 3AAX and 3T, 

any Specification cylinder constructed, 

marked and certified in accordance with 

subpart C of part 178 of this subchapter; 

and (3) any Industrial Packaging, Type 

A, Type B, Intermediate Bulk Container, 

Large Packaging, or non-specification 

packaging that has a volumetric capacity 

of 450 liters (119 gallons) or less.’’ In 

response to the NPRM, the DGAC and 

APE request PHMSA remove the 

definitions for bulk and non-bulk 

packaging from the HMR. The DGAC 

states the delineations were arbitrary 

and the terms no longer served a useful 

purpose in regulation. The APE states in 

its experience these terms were no 

longer used in international regulations, 

were detrimental to the United States 

(U.S.) transportation industry, and 

offered no safety benefits. Other 

commenters to the NPRM found the 

removal of the volumetric requirements 

from the definitions more confusing for 

determining the application of 

markings, labels, and placards, and were 

concerned the absence of this 

information may present a hazard 

communication problem for emergency 

responders in that it may interfere with 

them discovering a large amount of 

hazardous material during an incident. 

These commenters were also concerned 

that the removal of the volumetric 

requirements may possibly cause the 

distinction between IBCs and drums to 

disappear. For example, IBCs and drums 

have distinctly different handling 

requirements. IBCs, by definition, 

require mechanical handling for 

movement, which is not the case for 

non-bulk packagings such as drums. 

Changes in the volumetric capacities of 

these packagings may result in 

compromises in handling safety. 

Therefore, PHMSA did not adopt in 

§ 171.8 the non-bulk packaging 

definition as proposed in the NPRM. 

In its appeal to the February 2 final 

rule, the APE requests PHMSA define a 

non-bulk packaging for solids based on 


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Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 60335 

a net mass limit of 400 kg and without 

the 450 L limitation. The APE states this 

packaging is an undefined category— 

neither bulk nor non-bulk, but there is 

no safety basis for excluding its use, and 

this packaging was already authorized 

under PHMSA approval number CA 

2006030023. The APE also states such 

packagings are common for transporting 

consumer fireworks; an example would 

be a fiberboard box with a low net mass 

of 75 kg but with a capacity in excess 

of 450 L. Further, the APE states this 

size packaging issue does not arise in 

the UN Recommendations on the 

Transport of Dangerous Goods (UN 

Recommendations). 

PHMSA agrees with the appellants 

that (1) the HMR do not define 

packagings for solids with a net mass of 

400 kg or less (non-bulk) but a net 

capacity that exceeds 450 L, and 

packagings with a net mass that exceeds 

400 kg (bulk) but a net capacity that 

does not exceed 450 L; (2) that many of 

the international requirements for bulk 

and non-bulk packagings do not contain 

these quantity limits; and (3) packagings 

that meet the HMR’s performance 

standards should be considered 

authorized packagings. However, we 

also recognize that many factors 

concerning these size limits serve an 

important function in delineating 

packaging types and performance 

testing in the U.S. Design and testing of 

packages that fall within these sizes may 

not adequately account for the handling 

characteristics that such large and heavy 

packagings may require.Therefore, we 

are not revising the definition in § 171.8 

for a non-bulk packaging at this time, 

but will consider this issue more fully 

for a future rulemaking. 

C. Compliance Date for Package Closure 

Instructions 

The February 2 final rule revised 

§ 178.2(c) to require a packaging 

manufacturer or other person certifying 

a packaging’s compliance with 49 CFR 

Part 178, and each subsequent 

distributor of that packaging, to notify 

each person the packaging is transferred 

to of all the requirements regarding the 

packaging that are not met at the time 

of transfer. Each person who receives 

these written instructions must retain a 

copy for 365 days from the date of 

issuance. This notification may be in 

writing, stored electronically, including 

e-mail transmissions or on a CD or 

similar device. Federal hazmat law 

defines a ‘‘person’’ as including ‘‘a 

government, Indian tribe, or authority of 

a government or tribe that—(i) offers 

hazardous material for transportation in 

commerce; (ii) transports hazardous 

material to further a commercial 

enterprise; or (iii) designs, 

manufactures, fabricates, inspects, 

marks, maintains, reconditions, repairs, 

or tests a package, container, or 

packaging component that is 

represented, marked, certified, or sold 

as qualified for use in transporting 

hazardous materials in commerce 

* * *.’’ See 49 U.S.C. 5102(9); see also 

49 CFR 171.8. 

The DGAC states PHMSA 

misconstrued DGAC’s comments to the 

NPRM concerning closure instructions. 

In its appeal, the DGAC states 

packagings may require retesting or 

updated test reports to ensure closure 

instructions are consistent and 

repeatable with the manner in which 

these packagings were closed when 

tested. It also states completing 

packaging retesting before the October 1, 

2010 effective date of the final rule 

could be costly and time consuming. 

The DGAC recommends adopting a twoyear transition period for retaining 

closure instructions to align with the 

current two-year periodic retesting 

required for combination packagings 

and a one-year transition period for 

single packagings. 

We agree with the appellant that 

adopting a closure instruction retention 

period that aligns with the periodic 

retesting requirements for the packaging 

would make it easier for the 

manufacturer and each subsequent 

distributor of the packaging to comply 

with this requirement. We also agree 

that making this change is appropriate 

given that this requirement was 

intended to provide additional 

flexibility to packaging manufacturers. 

Therefore, in this final rule, we are 

revising the amount of time required for 

retaining packaging closure instructions 

prescribed in § 178.2(c)(1)(ii) to align 

with a packaging’s periodic retest date. 

We are also clarifying language in 

§ 173.22(a)(4) to clearly state that 

additional requirements concerning 

closure instruction retention, including 

the time period required, are prescribed 

in § 178.2(c). 

D. Minimum Thickness Requirement for 

Remanufactured Steel and Plastic 

Drums 

PHMSA added the phrase ‘‘or 

remanufactured for reuse’’ to the third 

sentences in § 173.28(a) and (f), 

respectively, which require steel and 

plastic drums to meet the minimum 

thickness requirements for reusable 

packagings. In their appeals, the DGAC 

and RIPA object to this revision stating 

that Part 178 specification requirements 

for steel or plastic manufactured or 

remanufactured drums do not include 

minimum thicknesses and 

reconditioning, which is a form of reuse 

that has not applied to remanufactured 

packagings for many years. They also 

state a remanufactured drum is much 

like a new drum marked for single use 

in that it must be tested, regardless of 

thickness, to demonstrate compliance 

with the applicable performance 

requirements for its design, and it 

cannot be reused or reconditioned. The 

appellants also state if this provision 

were to go into effect, remanufactured 

drums not meeting minimum thickness 

requirements will have to be taken out 

of service and scrapped, which would 

cause the premature disposal of 

packagings that are still otherwise 

useful. 

We agree with the appellants that this 

change may be misleading. PHMSA 

recognizes the current HMR minimum 

thickness requirements apply to 

packagings for reuse and reconditioning, 

and not to remanufactured packagings. 

We also recognize a remanufactured 

packaging, regardless of thickness, must 

be tested to demonstrate compliance 

with performance requirements. This 

differs from the requirements for reuse 

and reconditioning where the packaging 

is not subject to performance 

requirements as a new design type 

before reuse or reconditioning. 

Therefore, in this final rule, PHMSA is 

revising § 173.28(a) and (f) to remove 

the phrase ‘‘or remanufactured for reuse’’ 

to clarify that this requirement does not 

apply to remanufactured packagings. 

E. Vibration Testing for Large Packaging 

PHMSA added a vibration 

performance test in § 178.985 for UN 

standard Large Packagings to promote 

the integrity of these packagings in 

transportation. The DGAC and APE 

object to this provision in their appeals. 

Both state that PHMSA erroneously 

stated Large Packagings would contain 

hazardous materials without an 

intermediate packaging, but Large 

Packagings are designed to contain 

inner packagings, making them 

essentially combination packagings that 

should comply with § 173.24a(a)(5). The 

appellants state that PHMSA provided 

no safety justification for the additional 

test, and that this change decreases 

harmonization with international 

standards as the vibration test is not 

included in international standards for 

these packagings. The appellants also 

question why PHMSA would submit a 

paper to the UN Committee of Experts 

to permit hazard class Division 1.1D, 

1.4G, and 1.4S explosives in Large 

Packagings but not take this into 

account when preparing the Docket No. 

PHMSA–06–25736 (HM–231) final rule. 


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60336 Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 

On its own initiative, PHMSA added 

the vibration test for Large Packagings, 

other than for flexible Large Packagings, 

in the final rule because, as PHMSA 

stated in the final rule, the similarity of 

the Large Packaging’s design to an IBC 

subjected it to similar packaging design 

stresses and opportunities for failure. 

Further, PHMSA believes, based on 

historical experience with the vibration 

test, that the test is an essential 

component for assessing the integrity of 

an IBC packaging. Therefore, the test is 

equally valid for assessing the integrity 

of a Large Packaging, regardless of 

whether the Large Packaging is used as 

a single or combination packaging. In 

addition, the NPRM’s regulatory 

language did provide for the placement 

of articles or inner packagings in Large 

Packagings. However, these provisions 

were erroneously omitted in the 

February 2 final rule. Therefore, we are 

revising the language in § 178.985(a) 

regarding the vibration test for Large 

Packagings to state these packagings 

must be capable of passing the vibration 

test, and clarifying that Large 

Packagings that contain inner 

packagings are bulk packagings. 

PHMSA agrees with the appellants 

that the vibration test is not currently 

required internationally for Large 

Packagings. In December 2006, PHMSA 

submitted a proposal (No. 2006/98) to 

the 30th session of the UN SubCommittee of Experts on the Transport 

of Dangerous Goods (Sub-Committee) 

(the proposal is available at: http:// 

www.unece.org/trans/doc/2006/ac10c3/ 

ST-SG-AC10-C3-2006-98e.pdf) to 

incorporate into the UN 

Recommendations U.S.-issued 

competent authority approvals that 

permit Division 1.4G (UN 0336) and 

Division 1.4S (UN 0337) consumer 

fireworks to be transported in fiberboard 

and wood Large Packagings. This 

proposal was based on the existing test 

provisions for these packagings. 

PHMSA’s intent in this proposal was to 

add a Large Packaging authorization, not 

to amend the Large Packaging test 

requirements. At that time, the vibration 

test was not yet required for IBCs, but 

we were working with the SubCommittee during that session to add 

the vibration test for composite IBCs 

(see Canadian paper (2006/78); the 

proposal is available at: http:// 

www.unece.org/trans/doc/2006/ac10c3/ 

ST-SG-AC10-C3-2006-78e.pdf). 

PHMSA’s intent was to add the 

vibration test to the composite IBC 

packaging first, and then consider what 

other packaging types it should apply 

to. 

PHMSA withdrew the proposal before 

it was considered by the Sub-Committee 

and decided not to pursue it further at 

a future meeting because we believed 

the information we received initially 

from industry in support of the proposal 

was not sufficiently complete and may 

be inaccurate. After further review, we 

also decided the proposal as written at 

that time was not appropriate as a 

regulation to be made available for 

general use by incorporating it into the 

UN Recommendations. Therefore, the 

Sub-Committee never considered a 

proposal from the U.S. to add a Large 

Packaging authorization for 

identification number UN 0336 and UN 

0337 fireworks. The Sub-Committee 

document noting this withdrawal is 

available at: http://www.unece.org/ 

trans/doc/2006/ac10c3/UN-SCETDG-30- 

INF01e.pdf. 

Finally, on April 1, 2010, the U.S. 

submitted a working paper (No. ST/SG/ 

AC.10/C.3/2010/32) for the 

consideration of the UN Committee of 

Experts entitled ‘‘Vibration test for large 

packagings’’ that asks the Committee to 

add the vibration testing for all Large 

Packaging intended to contain liquids. 

A copy of this paper is available in the 

docket for this final rule at http:// 

www.regulations.gov. 

F. Minimum Puncture Resistance for UN 

50G Fiberboard Large Packagings 

The February 2 final rule added two 

puncture-resistant construction 

requirements under § 178.930 for rigid 

fiberboard UN 50 Large Packagings. The 

first, in § 178.930 (b)(1)(i), states the 

walls of the packaging, including the 

top and bottom, must have a minimum 

puncture resistance of 15 Joules 

(11 foot-pounds of energy) measured 

according to the testing standards 

prescribed in the International 

Organization for Standardization (ISO) 

3036–1975(E) Board—Determination of 

Puncture Resistance, which is 

incorporated by reference in § 171.7 of 

the HMR. The second, in § 178.930 

(b)(1)(ii), includes a requirement that 

metal staples used to fasten a Large 

Packaging be formed or protected so that 

any inner lining cannot be abraded or 

punctured by them. PHMSA added 

these requirements to reduce the 

likelihood that sharp or protruding 

objects will puncture these packagings. 

The APE opposes the ISO standard of 

puncture resistance for fiberboard Large 

Packagings, stating the 15 Joules 

puncture-resistance requirement 

introduces significant additional costs 

that foreign competitors, who may 

import fireworks into the U.S. in 

packagings of comparable mass and 

volume, are not required to comply 

with. The APE also states heavier 

fiberboard would be needed to satisfy 

this requirement, and this additional 

weight may reduce the amount of 

material that can be placed in a 

packaging on a truck. The APE also 

states PHMSA in the past issued an 

approval, CA number not provided, that 

required a 5 Joules puncture resistance 

for fiberboard packagings and requests 

that this standard be applied to the 

fiberboard Large Packaging as well. We 

believe the commenter may be referring 

to Competent Authority Approval 

number CA 2006030023. This 

competent authority permits APE to 

offer for transportation Division 1.4G 

(UN 0336) and Division 1.4S (UN 0337) 

fireworks in UN 50G Large Packagings 

that conform to the UN 

Recommendations construction 

standards for these packagings except 

that the walls, including the top and 

bottom of the packaging, must pass a 

puncture resistance of 5 Joules instead 

of 15 Joules required for all other 

packagings of this type. Additional 

packaging requirements also apply. A 

copy of the approval is available under 

the ‘‘Approvals Search’’ link at: http:// 

www.phmsa.dot.gov/hazmat/regs/sp-a/ 

approvals. Finally, the APE asserts that 

PHMSA did not adequately consider its 

concerns pertaining to this requirement 

in its comments to the NPRM. 

We agree with the appellant that the 

reduction in puncture resistance from 

15 to 5 Joules the appellant is requesting 

for fiberboard UN 50G Large Packagings 

is adequate for the hazard class, weight, 

and type of the hazardous materials 

permitted under this approval. 

However, we disagree that this 

provision should be applied to all Large 

Packagings in other types of hazardous 

materials service. For example, the 

ability of a fiberboard packaging to resist 

further tearing when punctured may be 

crucial to its survivability when it 

contains materials that are heavier than 

fireworks, which typically are 

lightweight when compared to their 

volume, or when it contains materials 

that can disperse easily, such as those 

in grain or powder form, or liquids in 

inner packagings. Therefore, we will 

continue to authorize fiberboard Large 

Packagings that pass a 5 Joule punctureresistance test under the terms of an 

approval based on our determination of 

its ability to transport a specific type of 

hazardous material safely in 

transportation. To determine whether 

other types of hazardous materials may 

be safely transported in a 5 Joule 

puncture-resistant fiberboard Large 

Packaging, we may consider this issue 

and the possibility of allowing the use 

of this type of packaging under the 


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terms of a Special Provision prescribed 

in § 172.102 in a future rulemaking. 

E. Miscellenous Corrections 

1. Editorial Corrections for Large 

Packagings 

In the February 2 final rule, PHMSA 

added standards for constructing and 

testing Large Packagings, represented by 

the code designation ‘‘UN 50’’ (rigid) or 

‘‘UN 51’’ (flexible), but did not 

consistently revise the references in the 

HMR to reflect this change. In this 

rulemaking, we are revising the 

definition in § 171.8, and the references 

in § 173.197 to correctly identify that 

the Large Packaging standards and 

testing provisions in the HMR are now 

prescribed in 49 CFR Part 178, Subparts 

P and Q. These corrections will clarify 

that an approval from the Associate 

Administrator for Hazardous Materials 

Safety is no longer needed to construct 

and test a UN 50 or UN 51 Large 

Packaging. 

2. Section Numbers 

PHMSA renumbered several sections 

pertaining to Large Packagings in the 

February 2 final rule to consolidate 

these requirements into sections that 

occur in the ‘‘§ 178.900’’ series, 

beginning with § 178.900 and ending 

with § 178.985. However, we did not 

discuss this change in the preamble. In 

addition, several section numbers that 

appeared in the final rule’s regulatory 

text were not revised to reflect these 

changes, and some existing sections 

numbers were referenced incorrectly. 

These editorial changes are summarized 

below. 

Section 178.503(e)(1)(i) was 

incorrectly referred to as § 178.3(e)(1)(i) 

in § 178.503(e)(1)(ii)(D) in the February 

2 final rule. This error is corrected in 

this final rule. 

Section 178.902 was renumbered 

§ 178.905; § 178.903 was renumbered 

§ 178.910; § 178.905 was renumbered 

§ 178.920; § 178.906 was renumbered 

§ 178.925; § 178.907 was renumbered 

§ 178.930; § 178.908 was renumbered 

§ 178.935; § 178.909 was renumbered 

§ 178.940, § 178.1001 was renumbered 

§ 178.950 in the February 2 final rule. 

In § 178.910, the reference in 

paragraph (a)(1)(ii) containing the 

identification codes for a Large 

Packaging design type was incorrectly 

described in the NPRM and February 2 

final rule as § 178.901. This section was 

designated as § 178.902 in the NPRM, 

and renumbered § 178.905 in the 

February 2 final rule. Therefore, in 

§ 178.910(a)(1)(ii), the reference to 

§ 178.901 is renumbered § 178.905. Also 

in § 178.910(a)(1)(ii), the reference to the 

section containing the general 

requirements for testing Large 

Packagings was incorrectly described in 

the NPRM and February 2 final rule as 

§ 178.1001. Therefore, § 178.1001 is 

renumbered § 178.955 in this final rule. 

In § 178.915(e), the ‘‘p’’ in packaging 

was placed erroneously in lower case. In 

addition, the bottom- and top-lift testing 

sections for Large Packagings were 

renumbered § 178.970 and § 178.975, 

respectively, in the February 2 final rule 

but were incorrectly described in 

§ 178.915(e) as § 178.1004 and 

§ 178.1005. These errors are also being 

corrected in this final rule. 

In the February 2 final rule, the 

sections that prescribe rigid plastic and 

flexible Large Packaging standards were 

renumbered § 178.925 and § 178.940, 

respectively, but were incorrectly 

described in § 178.955(c)(5)(ii) as 

§ 178.906 and § 178.909. Also, in the 

February 2 final rule, § 178.1001 was 

renumbered § 178.955, § 178.1002 was 

renumbered § 178.960, and § 178.1015 

was renumbered § 178.980. However, 

the references in § 178.965(a) and (b) to 

§ 178.955 and § 178.960 were 

incorrectly described as §§ 178.1001 and 

178.1002, respectively, and the 

reference in § 178.980(d) to § 178.980(c) 

was incorrectly described as 

§ 178.1015(c). 

These errors are being corrected in 

this final rule. 

Section 178.1019 was renumbered 

§ 178.985 in the February 2 final rule. 

3. Punctuation Errors 

In § 178.601(g)(8)(xiii)(C), the comma 

placed erroneously before the 

parenthetic phrase is removed, and the 

quotation mark used as a symbolic 

representation for the word ‘‘inches’’ 

after the numbers 0.625 was replaced 

with the word ‘‘inches.’’ In 

§ 178.601(g)(8)(xiii)(D), the period 

placed erroneously after the word 

‘‘thickness’’ is replaced with a comma. 

V. Rulemaking Analysis and Notices 

A. Statutory/Legal Authority for this 

Rulemaking 

This final rule is published under 

authority of 49 U.S.C. 5103(b), which 

authorizes the Secretary of 

Transportation to prescribe regulations 

for the safe transportation, including 

security, of hazardous materials in 

intrastate, interstate, and foreign 

commerce. This final rule responds to 

one petition for reconsideration and 

four appeals, and corrects several errors 

in the February 2, 2010 final rule. The 

petition and appeals are available for 

review in the public docket for this 

rulemaking. 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule is a non-significant 

regulatory action under section 3(f) of 

Executive Order 12866 and was not 

reviewed by the Office of Management 

and Budget. This final rule is 

considered non-significant under the 

Regulatory Policies and Procedures of 

the Department of Transportation (44 FR 

11034). The revisions adopted in this 

final rule do not alter the cost-benefit 

analysis and conclusions contained in 

the Regulatory Evaluation prepared for 

the February 2, 2010 final rule. 

C. Executive Order 13132 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’), and the 

President’s memorandum on 

‘‘Preemption’’ published in the Federal 

Register on May 22, 2009 (74 FR 24693). 

This final rule preempts State, local, 

and Indian tribe requirements, but does 

not impose any regulation with 

substantial direct effects on the States, 

the relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

The Federal Hazardous Materials 

Transportation Law, 49 U.S.C. 5101– 

5127, contains an express preemption 

provision (49 U.S.C. 5125(b)) 

preempting State, local, and Indian tribe 

requirements on the following subjects: 

(1) The designation, description, and 

classification of hazardous materials; 

(2) The packing, repacking, handling, 

labeling, marking, and placarding of 

hazardous materials; 

(3) The preparation, execution, and 

use of shipping documents related to 

hazardous materials and requirements 

related to the number, contents, and 

placement of those documents; 

(4) The written notification, 

recording, and reporting of the 

unintentional release in transportation 

of hazardous material; or 

(5) The design, manufacture, 

fabrication, marking, maintenance, 

recondition, repair, or testing of a 

packaging or container represented, 

marked, certified, or sold as qualified 

for use in transporting hazardous 

material. 

This final rule addresses covered 

subject items 1, 2, 3, and 5 above. This 

rule preempts any State, local, or Indian 

tribe requirements concerning these 

subjects unless the non-Federal 

requirements are ‘‘substantively the 


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60338 Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 

same’’ as the Federal requirements. This 

final rule is necessary to incorporate 

changes to the final rule in response to 

one petition for reconsideration and 

four appeals, and to make corrections to 

the February 2, 2010 final rule that 

without this rulemaking will become 

effective on October 1, 2010. 

Federal hazardous materials 

transportation law provides at 

§ 5125(b)(2) that, if DOT issues a 

regulation concerning any of the 

covered subjects, DOT must determine 

and publish in the Federal Register the 

effective date of Federal preemption. 

The effective date may not be earlier 

than the 90th day following the date of 

issuance of the final rule and not later 

than two years after the date of issuance. 

This effective date of preemption is 90 

days after the publication of this final 

rule in the Federal Register. 

D. Executive Order 13175 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not have 

tribal implications and does not impose 

direct compliance costs, the funding 

and consultation requirements of 

Executive Order 13175 do not apply. 

E. Regulatory Flexibility Act, Executive 

Order 13272, and DOT Procedures and 

Policies 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities. An agency must 

conduct a regulatory flexibility analysis 

unless it determines and certifies that a 

rule is not expected to have a significant 

impact on a substantial number of small 

entities. The corrections and revisions 

contained in this final rule are minor 

and will have little or no effect on the 

regulated industry. While maintaining 

safety, it relaxes certain requirements. 

Many of the amendments in this 

rulemaking are intended to correct or 

clarify regulatory requirements specific 

to the February 2, 2010 final rule 

concerning the construction and use of 

non-bulk and bulk packagings and do 

not impose any additional costs on 

small entities. 

This final rule has been developed in 

accordance with Executive Order 13272 

(‘‘Proper Consideration of Small Entities 

in Agency Rulemaking’’) and DOT’s 

procedures and policies to promote 

compliance with the Regulatory 

Flexibility Act to ensure that potential 

impacts of draft rules on small entities 

are properly considered. The changes in 

this final rule will enhance safety, and 

I certify that this proposal, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

F. Unfunded Mandates Reform Act of 

1995 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It will not result in costs of $120.7 

million or more, in the aggregate, to any 

of the following: State, local, or Native 

American tribal governments, or the 

private sector. 

G. Paperwork Reduction Act 

This final rule imposes no new 

information collection requirements. 

H. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document may be used 

to cross-reference this action with the 

Unified Agenda. 

I. Environmental Assessment 

The National Environmental Policy 

Act (NEPA), §§ 42 U.S.C. 4321–4375, 

requires federal agencies to analyze 

regulatory actions to determine whether 

the action will have a significant impact 

on the human environment. The 

Council on Environmental Quality 

(CEQ) regulations order federal agencies 

to conduct an environmental review 

considering (1) the need for the action, 

(2) alternatives to the action, 

(3) environmental impacts of the action 

and alternatives, and (4) the agencies 

and persons consulted during the 

consideration process. 40 CFR 

1508.9(b). In the February 2, 2010 final 

rule, we developed an assessment to 

determine the effects of these revisions 

on the environment and whether a more 

comprehensive environmental impact 

statement may be required. The 

requirements in this rulemaking will 

reduce confusion and enhance 

voluntary compliance, thereby reducing 

the likelihood of deaths, injuries, 

property damage, hazardous materials 

release, and other adverse consequences 

of incidents involving the transportation 

of hazardous materials. We have 

determined there will be no significant 

environmental impacts associated with 

this final rule. 

J. Privacy Act 

Anyone is able to search the 

electronic form for all comments 

received into any of our dockets by the 

name of the individual submitting the 

comments (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78), or it 

is available at: http://www.dot.gov/ 

privacy.html. 

List of Subjects 

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, we 

are amending 49 CFR Chapter I, 

subchapter C as follows: 

PART 171—GENERAL INFORMATION, 

REGULATIONS, AND DEFINITIONS 

■ 1. The authority citation for part 171 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128, 44701; 49 

CFR 1.45 and 1.53; Pub. L. 101–410 section 

4 (28 U.S.C. 2461 note); Pub. L. 104–134 

section 31001. 

■ 2. In § 171.8, the following changes 

are made: 

■ a. The definition for ‘‘bulk packaging’’ 

is amended by revising the introductory 

text; and 

■ b. The definition for a ‘‘Large 

packaging’’ is amended by revising 

paragraph (5) to read as follows: 

§ 171.8 Definitions and abbreviations. 

* * * * * 

Bulk packaging means a packaging, 

other than a vessel or a barge, including 

a transport vehicle or freight container, 

in which hazardous materials are loaded 

with no intermediate form of 

containment. A Large Packaging in 

which hazardous materials are loaded 

with an intermediate form of 

containment, such as one or more 

articles or inner packagings, is also a 

bulk packaging. Additionally, a bulk 

packaging has: * * * 

* * * * * 


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Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 60339 

Large packaging * * * 

(5) Conforms to the requirements for 

the construction, testing and marking of 

Large Packagings as specified in 

subparts P and Q of part 178 of this 

subchapter. 

* * * * * 

PART 173—SHIPPERS—GENERAL 

REQUIREMENTS FOR SHIPMENTS 

AND PACKAGINGS 

■ 3. The authority citation for part 173 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128, 44701; 49 

CFR 1.45, 1.53. 

■ 4. In § 173.22, paragraph (a)(4) is 

amended by adding three new sentences 

at the end of the paragraph to read as 

follows: 

§ 173.22 Shipper’s responsibility. 

(a) * * * 

(4) * * * A person must maintain a 

copy of the manufacturer’s notification, 

including closure instructions (see 

§ 178.2(c) of this subchapter) unless 

permanently embossed or printed on the 

packaging. When applicable, a person 

must maintain a copy of any supporting 

documentation for an equivalent level of 

performance under the selective testing 

variation in § 178.601(g)(1) of this 

subchapter. A copy of the notification, 

unless permanently embossed or 

printed on the packaging, and 

supporting documentation, when 

applicable, must be made available for 

inspection by a representative of the 

Department upon request for the time 

period of the packaging’s periodic retest 

date, i.e., every 12 months for single or 

composite packagings and every 24 

months for combination packagings. 

* * * * * 

■ 5. In § 173.28, in paragraph (a), the 

third sentence is revised and, in 

paragraph (f), the third sentence is 

revised to read as follows: 

§ 173.28 Reuse, reconditioning, and 

remanufacture of packagings. 

(a) * * * Packagings not meeting the 

minimum thickness requirements 

prescribed in paragraph (b)(4)(i) of this 

section may not be reused or 

reconditioned for reuse. 

* * * * * 

(f) * * * Drums or jerricans not 

meeting the minimum thickness 

requirements prescribed in paragraph 

(b)(4)(i) of this section may not be 

reused or reconditioned for reuse. 

■ 6. In § 173.197, the first sentence in 

paragraph (c), introductory paragraph is 

revised to read as follows: 

§ 173.197 Regulated medical waste. 

* * * * * 

(c) Large Packagings. Large 

Packagings constructed, tested, and 

marked in accordance with the 

requirements specified in subparts P 

and Q of part 178 of this subchapter and 

conforming to other requirements of this 

paragraph (c) may be used for the 

transportation of regulated medical 

waste, provided the waste is contained 

in inner packagings conforming to the 

requirements of paragraph (e) of this 

section. * * * 

* * * * * 

PART 178—SPECIFICATIONS FOR 

PACKAGINGS 

■ 7. The authority citation for part 178 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128; 49 CFR 

1.45, 1.53. 

■ 8. In § 178.2, paragraph (c)(1)(ii) is 

revised to read as follows: 

§ 178.2 Applicability and responsibility. 

* * * * * 

(c) * * * 

(1) * * * 

(ii) Retain copies of each written 

notification for the amount of time that 

aligns with the packaging’s periodic 

retest date, i.e., every 12 months for 

single or composite packagings and 

every 24 months for combination 

packagings; and 

* * * * * 

■ 9. In § 178.503, paragraph (e)(1)(ii)(D) 

is revised to read as follows: 

§ 178.503 Marking of packagings. 

* * * * * 

(e) * * * 

(1) * * * 

(ii) * * * 

(D) The letters ‘‘u’’ and ‘‘n’’ appear 

exactly as depicted in § 178.503(e)(1)(i) 

with no gaps. 

* * * * * 

■ 10. In § 178.601, paragraphs 

(g)(8)(xiii)(C) and (g)(8)(xiii)(D) are 

revised to read as follows: 

§ 178.601 General requirements. 

* * * * * 

(g) * * * 

(8) * * * 

(xiii) * * * 

(C) Closure ring style including bolt 

size (e.g., square or round back, 0.625 

inches bolt); and 

(D) Closure ring thickness, 

* * * * * 

■ 11. In § 178.910, paragraph (a)(1)(ii) is 

revised to read as follows: 

§ 178.910 Marking of large packagings. 

(a) * * * 

(1) * * * 

(ii) The code number designating the 

Large Packaging design type according 

to § 178.905. The letter ‘‘W’’ must follow 

the Large Packaging design type 

identification code on a Large Packaging 

when the Large Packaging differs from 

the requirements in subpart P of this 

part, or is tested using methods other 

than those specified in this subpart, and 

is approved by the Associate 

Administrator in accordance with the 

provisions in § 178.955; 

* * * * * 

■ 12. In § 178.915, paragraph (e) is 

revised to read as follows: 

§ 178.915 General large packaging 

standards. 

* * * * * 

(e) Large Packaging design types must 

be constructed in such a way as to be 

bottom-lifted or top-lifted as specified in 

§§ 178.970 and 178.975. 

§ 178.930 [Corrected] 

■ 13. In § 178.930, in the second 

sentence of paragraph (a) introductory 

text, remove the word ‘‘large’’, and add 

the word ‘‘Large’’ in its place. 

■ 14. In § 178.955, paragraph (c)(5)(ii) is 

revised to read as follows: 

§ 178.955 General requirements. 

* * * * * 

(c) * * * 

(5) * * * 

(ii) A rigid plastic Large Packaging, 

which differs with regard to additives 

used to comply with § 178.925(b) or 

§ 178.940(b); 

* * * * * 

■ 15. In § 178.965, paragraphs (a), (b), 

and the last sentence in paragraph (c) 

are revised to read as follows: 

§ 178.965 Drop test. 

(a) General. The drop test must be 

conducted for the qualification of all 

Large Packaging design types and 

performed periodically as specified in 

§ 178.955(e) of this subpart. 

(b) Special preparation for the drop 

test. Large Packagings must be filled in 

accordance with § 178.960. 

(c) * * * Large Packagings 

conditioned in this way are not required 

to be conditioned in accordance with 

§ 178.960(d). 

* * * * * 

■ 16. In § 178.980, paragraph (d)(1) is 

revised to read as follows: 

§ 178.980 Stacking test. 

* * * * * 

(d) Periodic retest. 


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60340 Federal Register / Vol. 75, No. 189 / Thursday, September 30, 2010 / Rules and Regulations 

(1) The package must be tested in 

accordance with § 178.980(c) of this 

subpart; or 

* * * * * 

■ 17. In § 178.985, paragraph (a) is 

revised to read as follows: 

§ 178.985 Vibration test. 

(a) General. All rigid Large Packaging 

and flexible Large Packaging design 

types must be capable of withstanding 

the vibration test. 

* * * * * 

Issued in Washington, DC, on 

September 22, 2010, under authority 

delegated in 49 CFR part 1. 

Cynthia L. Quarterman, 

Administrator. 

[FR Doc. 2010–24336 Filed 9–29–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 100 

Subsistence Management Regulations 

for Public Lands in Alaska 

CFR Correction 

In Title 50 of the Code of Federal 

Regulations, Parts 18 to 199, revised as 

of October 1, 2009, on page 663, in 

§ 100.24, remove the second paragraph 

(a)(3). 

[FR Doc. 2010–24662 Filed 9–29–10; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

Fisheries of the Northeastern United 

States 

CFR Correction 

In Title 50 of the Code of Federal 

Regulations, Parts 600 to 659, revised as 

of October 1, 2009, on page 639, in 

§ 648.92, remove the second paragraphs 

(b)(1)(iv) and (b)(1)(v). 

[FR Doc. 2010–24660 Filed 9–29–10; 8:45 am] 

BILLING CODE 1505–01–D 


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