{"operation":"document","citation":"75 FR 5376","title":"Hazardous Material; Miscellaneous Packaging Amendments","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2010-02-02","effective_on":"2010-10-01","summary":"In this final rule, PHMSA is amending packaging requirements in the Hazardous Materials Regulations to enhance compliance flexibility, improve clarity, and reduce regulatory burdens. Specifically, we are revising several packaging related definitions; adding provisions to allow more flexibility when preparing and transmitting closure instructions, including conditions under which closure instructions may be transmitted electronically; adding a requirement for shippers to retain packaging closure instructions; incorporating new language that will allow for a practicable means of stenciling the \"UN\" symbol on packagings; and clarifying 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. This final rule also incorporates requirements for construction, maintenance, and use of Large Packagings.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2010-1615.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2010-1615.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2010-1615","source_url":"https://www.federalregister.gov/documents/2010/02/02/2010-1615/hazardous-material-miscellaneous-packaging-amendments","body":"Federal Register, Volume 75 Issue 21 (Tuesday, February 2, 2010) [Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)] [Rules and Regulations] [Pages 5376-5403] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2010-1615] [[Page 5375]] ----------------------------------------------------------------------- Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. Hazardous Material; Miscellaneous Packaging Amendments; Final Rule Federal Register / Vol. 75 , No. 21 / Tuesday, February 2, 2010 / Rules and Regulations [[Page 5376]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 174, 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: In this final rule, PHMSA is amending packaging requirements in the Hazardous Materials Regulations to enhance compliance flexibility, improve clarity, and reduce regulatory burdens. Specifically, we are revising several packaging related definitions; adding provisions to allow more flexibility when preparing and transmitting closure instructions, including conditions under which closure instructions may be transmitted electronically; adding a requirement for shippers to retain packaging closure instructions; incorporating new language that will allow for a practicable means of stenciling the ``UN'' symbol on packagings; and clarifying 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. This final rule also incorporates requirements for construction, maintenance, and use of Large Packagings. DATES: Effective Date: October 1, 2010. Voluntary Compliance Date: Compliance with the requirements adopted herein is authorized as of March 4, 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 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 Avenue, SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Background II. Provisions Adopted in This Final Rule A. Definitions B. Plastic Packagings Used To Transport Poison Materials C. Revisions to the Hazardous Materials Table D. Exceptions for Shipments of Waste Materials E. Package Closure Instructions F. General Requirements for Bulk Packagings G. Reuse, Reconditioning, and Remanufacture of Packagings H. Package Marking Requirements for Drums I. UN Symbol Marking J. Design-Type Variations K. Selective Testing of Steel Drums L. Revisions to Requirements for IBCs M. Large Packagings N. Additional Revisions in This Final Rule III. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Unfunded Mandates Reform Act of 1995 G. Paperwork Reduction Act H. Regulation Identification Number (RIN) I. Environmental Assessment J. Privacy Act I. Background On September 1, 2006, we published a notice of proposed rulemaking (NPRM) under Docket HM-231 (71 FR 52017) that proposed to: (1) Revise, remove, and add definitions specific to packaging requirements; (2) amend import and export provisions to require plastic single and composite non-bulk packagings containing Division 6.1 material to be marked ``POISON'' in conformance with Sec. 172.313(b); (3) revise certain Sec. 172.101 Table entries for packaging requirements; (4) add and revise certain special provisions to authorize the transportation of certain hazardous materials in Large Packagings; (5) clarify shippers' responsibilities for complying with packaging standards; (6) clarify requirements for stacking of bulk packages; (7) correct an error in provisions applicable to intermediate bulk container (IBC) requirements related to gauge pressure; (8) authorize the transportation of bromine residue in cargo tanks; (9) clarify requirements applicable to closure instructions for specification packagings; (10) add exceptions for marking of steel drums; (11) add an exception to permit marking of the UN symbol on specification packagings with a stencil; (12) amend general requirements for the use of certain packaging variations; and (13) add standards and provisions for the manufacture and use of Large Packagings. Twenty-four persons submitted comments on the NPRM. Most supported adoption of the proposals in the NPRM. Negative comments were generally focused on issues related to record retention of closure instructions, documenting methodologies utilized to determine whether packaging variations achieve an equivalent level of performance to already tested packaging configurations, and the definitions proposed for bulk and non-bulk packaging. The comments may be reviewed at http://www.regulations.gov . For convenience, a list of the commenters is provided below. ---------------------------------------------------------------------------------------------------------------- Date of letter Name/company or when received Document No. ---------------------------------------------------------------------------------------------------------------- Kathryn W. Pacha.......................... 09/05/2006 PHMSA-2006-25736-2 Georgia Department of Public Safety....... 09/25/2006 PHMSA-2006-25736-3 Regulatory Resources, Inc. (RRI).......... 10/06/2006 PHMSA-2006-25736-4 Frits Wybenga............................. 10/09/2006 PHMSA-2006-25736-5 European Chemical Industry Council (CEFIC) 10/24/2006 PHMSA-2006-25736-6 The Dangerous Goods Advisory Council 10/26/2006 PHMSA-2006-25736-7 (DGAC). North American Automotive Hazmat Action 11/16/2006 PHMSA-2006-25736-8 Committee (NAAHAC). Kurt Colborn.............................. 11/22/2006 PHMSA-2006-25736-9 National Association of Chemical 11/22/2006 PHMSA-2006-25736-10 Distributors (NACD). The Chlorine Institute, Inc............... 11/22/2006 PHMSA-2006-25736-11 HMT Associates L.L.C...................... 11/21/2006 PHMSA-2006-25736-12 Air Products and Chemicals, Inc. (Air 11/29/2006 PHMSA-2006-25736-13 Products). American Trucking Associations (ATA)...... 11/30/2006 PHMSA-2006-25736-14 [[Page 5377]] U.S. Department of Energy (DOE)........... 11/30/2006 PHMSA-2006-25736-15 Crop Life America (CropLife).............. 11/27/2006 PHMSA-2006-25736-16 C. L. Smith Company....................... 11/30/2006 PHMSA-2006-25736-17 Flexible Intermediate Bulk Container 11/30/2006 PHMSA-2006-25736-18 Association (FIBCA). Reusable Industrial Packaging Association 11/27/2006 PHMSA-2006-25736-19 (RIPA). Charles E. Tudor, CP-P/MH................. 11/28/2006 PHMSA-2006-25736-20 Steel Shipping Container Institute (SSCI). 11/29/2006 PHMSA-2006-25736-0022 American Promotional Events, Inc. (APE)... 11/30/2006 PHMSA-2006-25736-23 Greg McCanless............................ 10/12/2007 PHMSA-2006-25736-24 ---------------------------------------------------------------------------------------------------------------- On December 1, 2006, we published a correction to the NPRM to correct mathematical calculations under the Paperwork Reduction Act section of the rulemaking. The revision changed the total number of annual respondents from 5,000 to 5,010, and the total number of annual responses from 15,000 to 15,500 for OMB Control No. 2137-0572. This final rule is designed primarily to enhance safety, clarify specific packaging regulations and to ease and enhance compliance by incorporating changes into the HMR based on PHMSA's own initiative and petitions for rulemaking submitted in accordance with 49 CFR 106.95. We are also adding two new subparts to Part 178--Subpart P-Large Packaging Standards, and Subpart Q-Testing of Large Packagings--to facilitate the use of these packagings. In this final rule, we are amending the HMR to: 1. Revise the definitions for ``Bulk packaging'' and ``Large packaging'' to allow intermediate forms of containment and add a definition for ``Strong outer packaging'' for consistency and clarity when shipping in non-specification packaging. 2. Revise Sec. 172.101 Table entries to authorize the use of Large Packagings for certain explosives, and revise packaging requirements for ``Azodicarbonamide'' and ``Isosorbide-5-mononitrate.'' 3. Add and revise special provisions to facilitate the use of Large Packagings. 4. Clarify shippers' responsibilities regarding package closure instructions and electronic transmission, and add new requirements regarding retention and other exceptions. 5. Clarify shippers' responsibilities to comply with the HMR's packaging standards, and to document the method 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. 6. Correct an error in general IBC requirements related to pressure limits. 7. Authorize the transportation of bromine residue in cargo tanks. 8. Revise requirements applicable to closure instructions to permit manufacturers additional flexibility when preparing and transmitting them. 9. Permit stenciling of the UN symbol on specification packagings. 10. Add new Subparts P and Q to Part 178 to authorize the manufacture, testing, and use of Large Packagings. This final rule also implements several revisions proposed in the NPRM based on six petitions for rulemaking: ---------------------------------------------------------------------------------------------------------------- Date of letter Petition Name/company or when received Document No. No. ---------------------------------------------------------------------------------------------------------------- Monsanto-The Agricultural Group. 04/16/1993 PHMSA-RSPA-1993-12657-0001....................... P-1173 Steel Shipping Container 05/20/1997 PHMSA-RSPA-2002-13401-0001....................... P-1337 Institute. The Association of Container 05/20/1998 PHMSA-RSPA-1998-12610-0001....................... P-1359 Reconditioners. Steel Shipping Container 01/26/1999 PHMSA-RSPA-2002-13401-0001....................... P-1371 Institute. Arch Chemicals, Inc............. 10/01/2002 PHMSA-RSPA-2002-14130-0002....................... P-1431 Dangerous Goods Advisory Council 04/19/2005 PHMSA-2005-21091-0001............................ P-1455 ---------------------------------------------------------------------------------------------------------------- The petitions are discussed in more detail in the appropriate sections of this preamble. Each of these petitions may be viewed at http://www.regulations.gov in the docket for this rulemaking. II. Provisions Adopted in This Final Rule Following is a discussion of the comments we received in response to the 2006 NPRM and a detailed explanation of the provisions we are adopting in this final rule. A. Definitions Section 171.8 contains the general definitions and section references that apply to the HMR. In the NPRM, we proposed to revise the definitions in this section for bulk, non-bulk, and large packaging; remove the definition for strong outside container; and add definitions for reconditioned, remanufactured, and strong outer packagings. Bulk and Non-bulk Packaging. In the NPRM, we proposed to revise the definitions for ``Bulk packaging'' and ``Non-bulk packaging'' based on the particular packaging specification at issue and volumetric capacity. The proposed changes were prompted by a petition from Monsanto Company (P-1173) and designed to make the definitions easier to understand. In the NPRM, we proposed to remove the maximum net mass and water capacity limits from these definitions and replace them with requirements that emphasize packaging type and the performance-oriented packaging standards of Subparts C, L, and M of 49 CFR Part 178, as applicable. We proposed these changes to clarify the current definitions, eliminate confusion, and enhance voluntary compliance. We did not intend to change the quantity thresholds in the HMR for bulk or non-bulk packagings. The majority of commenters object to the proposed changes. The commenters have the following concerns: 1. Applicability of the proposed definitions to cylinders. Three commenters (the NACD, The Chlorine Institute, Inc., and Air Products) suggest that the proposed definition for ``bulk packaging'' could be interpreted to cover the DOT 3AX, 3AAX, and 3T bulk cylinders. In its comments, NACD states [[Page 5378]] that these containers have traditionally been considered non-bulk packagings and have been handled as such without safety problems. All three commenters are concerned that this ``re-definition'' will adversely affect the transportation of many compressed gases and could result in the application of regulatory requirements specific to the transportation of bulk packages to transporters of larger chlorine cylinders, essentially eliminating a common transportation method for transporting DOT 3AAX cylinders by highway. The commenters also contend that this change would place a substantial burden on shippers and users of chlorine with no safety justification because historically these packagings have had few problems in transportation. 2. Applicability of the proposed definitions to RAM. The U.S. Department of Energy (DOE) is strongly opposed to a bulk/non-bulk distinction with regard to radioactive materials (RAM) packaging. DOE states that packaging requirements for RAM have historically been based on risk and containment only, without consideration for volume. DOE also cites a previously issued interpretation that stated that RAM packagings are generally considered non-bulk (Reference Number: 01- 0153). DOE is specifically concerned with the implications of bulk venting requirements and the removal of the restriction on intermediate forms of containment in bulk packagings. DOE is further concerned that current requirements restricting the venting of bulk packagings would prevent necessary venting of certain RAM packagings if they are classed as ``bulk.'' 3. Volumetric capacity limits and Harmonization with United Nations (UN) Model Regulations. Nine commenters state that the non-bulk packaging definition should be based on UN Model Regulations (i.e., no volumetric limit for solids). These commenters assert that use of the UN Model Regulations allows non-bulk packagings with volumetric capacities greater than 450 liters (119 gallons) provided the weight does not exceed 400 kg (882 pounds). Generally, the commenters assert that the lack of harmonized definitions places U.S. companies at a competitive disadvantage and appears to provide no safety benefits, while a harmonized standard would promote flexibility and cost- effectiveness. The RIPA agrees it may be beneficial to harmonize with the international requirements, but believes all the consequences of such a change should be considered more fully in a separate rulemaking. 4. Necessity of definitions. Two commenters (DGAC and APE) state the definitions for bulk and non-bulk packaging should be removed from the HMR. In its comments, DGAC states that the delineation is arbitrary and that the terms no longer serve a useful purpose in regulation. APE states these terms are not used in international regulations, and in its experience using these terms is detrimental to U.S. industry and offers no safety benefits. On the other hand, Kathryn W. Pacha states ``Removal of the volumetric requirement from the definition could make the application of markings, labels, and placards more confusing and not less.'' Ms. Pacha supports the volumetric limit in the current version of the HMR and stated in her comments: ``From the perspective of emergency responders, if a package looks big, it should be communicated as ``big'' since communication requirements are for emergency responders.'' RIPA also opposes removing the volumetric limits in the HMR for bulk and non-bulk packagings because it finds the proposed definitions more confusing than the originals, and believes without these volumetric definitions the distinction between IBCs and drums could disappear. Based on the overwhelming opposition to the proposed definitions for ``bulk packaging'' and ``non-bulk packaging,'' we are not adopting the proposed definitions in this final rule. Packaging manufacturers and shippers should be aware that packagings with a volumetric capacity greater than 450 liters (119 gallons) as a receptacle for a liquid, both a maximum net capacity greater than 450 L (119 gallons) and a maximum net mass greater than 400 kg (882 pounds) as a receptacle for a solid, and a water capacity greater than 454 kg (1,000 pounds) as a receptacle for a gas are bulk packagings under the HMR regardless of the weight or volume of the hazardous material contained therein. See Sec. 171.8. We want to emphasize for packaging manufacturers and shippers that the bulk packaging definition is based on the capacity of a packaging, not on the actual amount contained in the packaging at shipment. Thus, packagings with the bulk volumetric capacity mentioned earlier in this paragraph are bulk packagings for purposes of the HMR regardless of the weight or volume of the hazardous material contained therein. In this final rule, we are removing the phrase ``with no intermediate form of containment'' from the definition of a ``bulk packaging.'' Modifying the definition in this way clarifies that Large Packagings, which contain inner packagings, are considered bulk packagings for purposes of the HMR. Commenters did not oppose this change. In conjunction with our proposal to revise the definitions for ``bulk packaging'' and ``non-bulk packaging,'' we proposed to define standards for each specific non-bulk specification packaging type. We proposed to amend Sec. Sec. 178.512 through 178.521 to specify volumetric capacity may not exceed 450 L (119 gallons) for the following packaging design types: aluminum boxes, natural wood boxes, plywood boxes, reconstituted wood boxes, fiberboard boxes, plastic boxes, woven plastic bags, plastic film bags, textile bags, and paper bags. The purpose was to eliminate uncertainty in determining if a package is a bulk package or a non-bulk package. Commenters strongly oppose the revised definitions and the revisions to Sec. Sec. 178.512 through 178.521. As discussed above, we are not adopting the proposed definitions for non-bulk and bulk packagings in this final rule. Similarly, we are not adopting the revisions proposed for Sec. Sec. 178.512 through 178.521. However, packaging manufacturers and shippers should be aware that packagings with a volumetric capacity greater than 450 liters (119 gallons) are bulk packagings regardless of the weight of the hazardous material contained in the packaging. Strong outside container and strong outer packaging. In the NPRM, we proposed to remove the definition for ``strong outside container'' and add a new definition for ``strong outer packaging.'' Currently, the HMR use the terms ``strong outside container,'' ``strong outside packaging,'' and ``strong outer packaging'' interchangeably; however, there is no definition for ``strong outer packaging'' or ``strong outside packaging'' in Sec. 171.8. Therefore, we proposed to remove the wording ``strong outside container'' and ``strong outside packaging,'' add the language from the ``strong outside container'' definition to a new definition for ``strong outer packaging,'' and add additional language to the new definition as follows: [[Page 5379]] ------------------------------------------------------------------------ Strong outside container vs. strong outer packaging Current Proposed ------------------------------------------------------------------------ Strong outside Strong outer container means the packaging means the outermost enclosure outermost enclosure which provides which provides protection against protection against the unintentional the unintentional release of its release of its contents under contents. It is a conditions normally packaging, which is incident to sturdy, durable, transportation. and constructed so that it will retain its contents under normal conditions of transportation, including rough handling. In addition, a strong outer packaging must meet the general packaging requirements of subpart B of part 173 of this subchapter but need not comply with the specification packaging requirements in Part 178 of the subchapter. For transport by aircraft, a strong outer packaging is subject to Sec. 173.27 of this subchapter. ------------------------------------------------------------------------ Three commenters, RRI, the DGAC, and the NAAHAC, submitted comments in support of the proposed new definition. RRI and NAAHAC strongly support the new definition; however, they disagree with the use of the phrase ``including rough handling'' following the long-used phrase ``normal conditions of transport'' because it implies that rough handling is ``normal.'' In the course of transportation, packages are handled in a manner that can be characterized as ``rough.'' Rough handling is common and may occur any time a package is loaded or unloaded in a hurried manner, shifts while in a transport vehicle, or is dropped from a height of more than a few inches (e.g., three inches). After further consideration, we have concluded that adding the phrase ``including rough handling'' is redundant and inconsistent with other HMR provisions that include the phrase ``normal conditions of transportation.'' Therefore, in this final rule we are removing the phrase ``including rough handling'' from the definition proposed in the NPRM. DGAC supports the new definition for ``strong outer packaging'' but questions the need to reference Subpart B of Part 173 and Sec. 173.27. DGAC contends that most strong outer packagings are used to transport limited quantities, the regulatory requirements for which already reference Subpart B. The commenter is correct that the regulatory requirements applicable to limited quantity shipments already reference Subpart B. However, there are a number of instances in the HMR authorizing the transportation of certain classes and quantities of hazardous materials, other than limited quantities, in strong outer packagings. Including the references to Subpart B of Part 173 and Sec. 173.27 in the definition for ``strong outer packaging'' will contribute to an increased level of regulatory compliance by cross-referencing the requirements that apply. PHMSA notes none of the commenters objected to the interchangeable manner in which ``strong outside container,'' ``strong outside packaging,'' and ``strong outer packaging'' are currently used in the HMR. Although ``strong outer packaging'' is used the most in the HMR, to PHMSA's knowledge, the interchangeable use of this wording with strong outside container and strong outside packaging has resulted in little or no confusion to the shipper. Further, we believe that removing ``strong outside container'' and ``strong outside packaging'' from the HMR may cause confusion for the regulated community that may compromise safety, whereas adding the definition for ``strong outer packaging'' and a sentence at its end that states the three terms are interchangeable may clarify their meaning. Therefore, in this final rule we are adding a sentence to the end of the new definition for ``strong outer packaging'' in Sec. 171.8 to clarify that ``strong outside container'' and ``strong outside packaging'' are synonymous in meaning with ``strong outer packaging.'' Remanufactured packaging, Reused packaging, and Reconditioned Packaging. Currently, the HMR define ``remanufactured packaging,'' ``reused packaging,'' and ``reconditioned packaging'' in Sec. 173.28. In the NPRM, we proposed to add a reader's aid to Sec. 171.8 to refer to the definitions for ``remanufactured packaging'' and ``reconditioned packaging'' in Sec. 173.28. We did not propose a reference to ``reused packaging'' in the NPRM. RIPA supports the addition of the reader's aids for ``remanufactured packaging'' and ``reconditioned packaging'' in Sec. 171.8, and suggests that PHMSA should also add a reference for ``reused packaging'' in Sec. 171.8. We agree. In this final rule, we are adding a reference for ``reused packaging'' in Sec. 171.8. B. Plastic Packagings Used To Transport Poison Materials Section 171.23 establishes conditions under which shippers may use the international standards as authorized by the HMR for shipments transported to, from, or within the United States. Arch Chemicals, Inc. (``Arch'') petitioned PHMSA (P-1431) to amend this section to reference the marking requirement in Sec. 172.313(b). Paragraph (b) of Sec. 172.313 requires plastic single and composite non-bulk packagings containing Division 6.1 material to be marked ``POISON.'' The purpose of this marking is to inform persons who may wish to re-use a packaging that previously contained a poisonous material that the packaging should not be used for foodstuffs because the poison may have permeated the packaging material. In its petition, Arch states that, because Sec. 171.23 does not require compliance with Sec. 172.313, import shipments need not have this marking, creating an inconsistency in the HMR. Thus, in the NPRM we proposed to require import and export shipments to be marked in accordance with Sec. 172.313(b). Several commenters, including Arch, oppose this proposal. Instead, they suggest that we eliminate the domestic marking requirement. Two commenters, Air Products and CropLife, state the term ``poison'' is not used in international regulations. CropLife further states it believes the United States should not require that ``poison'' be marked on foreign plastics that contain these types of materials without evidence the requirement will achieve measureable safety improvements. Commenters also state that the current requirements are outdated because newer plastics have been developed since Sec. 172.313(b) was originally incorporated into the HMR. The newer plastics are designed so that they could be filled with a poison material, cleaned, and filled with a foodstuff safely. [[Page 5380]] In this final rule we are not adopting the proposed change due to overwhelming opposition to the proposal, including opposition from the original petitioner. Comments concerning elimination of the domestic marking requirement are beyond the scope of this rulemaking. PHMSA may consider revisions to the import-export requirements or a proposal to the UN as a future initiative. The Dangerous Goods Advisory Council (DGAC) notes that PHMSA permits the use of the word ``TOXIC'' in the place of ``POISON.'' We agree that TOXIC can be used in place of POISON throughout the HMR. Therefore, we are not revising Sec. 172.313 in this final rule to clarify further that the HMR permit the word ``TOXIC'' to be used as an alternative to the word ``POISON.'' C. Revisions to the Hazardous Materials Table The Hazardous Materials Table (HMT) in Sec. 172.101 lists the proper shipping name, hazard class, and identification number that must be used to describe a hazardous material in transportation. In the NPRM, we proposed several minor amendments to the HMT related to packaging provisions. We received no comments on these proposals; therefore, we are adopting them as proposed in this final rule. We are amending the entries for ``Azodicarbonamide'' and ``Isosorbide-5-mononitrate.'' Because these materials pose similar hazards, they are best packaged in the same manner as Musk xylene (5- tert-Butyl-2,4,6-trinitro-m-xylene). We are changing their references for non-bulk packaging to Sec. 173.223. To authorize the transportation of certain explosives in Large Packagings consistent with the UN Recommendations, several entries for explosives are revised to read ``62'' rather than ``none'' in Column (8c). We are also making editorial changes to the special provisions and vessel stowage requirements for these entries in the HMT. As proposed in the NPRM, we are revising Sec. 173.223 for consistency with the revised HMT entries for ``Azodicarbonamide'' and ``Isosorbide-5-mononitrate.'' PHMSA received no comments on the language change proposed in the NPRM, and will adopt these provisions as proposed. D. Exceptions for Shipments of Waste Materials Section 173.12 establishes conditions for reuse of previously used packagings for the transportation of hazardous waste. The Association of Container Reconditioners (ACR) (P-1328) petitioned PHMSA to amend Sec. 173.12(c). ACR states the minimum thickness criteria specified in Sec. 173.28(b)(4) for the reuse of metal and plastic drums and jerricans should be applied to packagings reused for waste materials under the exception in Sec. 173.12(c). ACR contends that hazardous waste packagings currently excepted under Sec. 173.12(c) should be subject to minimum thickness criteria, and that the inclusion of Sec. 173.12(c) is an oversight and was inadvertently incorporated into the HMR as part of Docket HM-181 (December 21, 1990; 55 FR 52401). The exception in Sec. 173.12(c) is not authorized for a packaging intended to be used more than two times (initial use and the return shipment of the waste product). A package may only be shipped under this exception once and must meet the following conditions: (1) It may only be transported by highway; (2) it must be loaded by the shipper and unloaded by the consignee or shipped by a private motor carrier; (3) the packaging may not be offered for transportation less than twenty-four hours after it is finally closed for transportation and; (4) each package must be inspected for leakage and found to be free from leaks immediately prior to being offered for transportation. If the packaging is subsequently reused, it will be subject to the minimum thickness requirements in Sec. 173.28(b)(4). The significant restrictions of Sec. 173.12(c) and the fact that the exception may only be used once per packaging make it unnecessary to require a shipper to comply with the minimum thickness criteria in Sec. 173.28(b)(4). Therefore, we do not believe that the packages that comply with the restrictions in Sec. 173.12(c) need to comply with the minimum thickness criteria in Sec. 173.28(b)(4). We also do not believe that the costs associated with the impacts of both petitioners' requests are commensurate with the benefits and, therefore, in this final rule we are denying their petitions. Citing safety as their concern, RIPA supports maintaining minimum thickness criteria for steel and plastic drums reused for one-time shipments of hazardous wastes under the waste exceptions in Sec. 173.12. RIPA suggests that the uncertainty in characterizing these wastes warrants more stringent requirements for their packaging. We disagree. As we previously stated, based on the additional provisions that must be met in Sec. 173.12(c), we concluded that there will be minimal, if any, additional safety benefit as a result of an additional minimum thickness requirement for this exception and there would be significant additional cost associated with the addition of such a requirement. E. Packaging Closure Instructions In accordance with Sec. 178.2(c), a packaging manufacturer and subsequent distributors of the packaging must provide written instructions for assembling and closing the packaging so that it will maintain its integrity during transportation. However, this section does not specify how detailed the closure instructions must be or what they must include. Generally, we expect that the closure instructions will provide for a consistent and repeatable means of closure. For example, the manufacturer's closure instructions could specify a range of torque values applicable to the closure or a detailed closure method (e.g., tighten the cap until the bottle contacts the cap gasket and then tighten an additional \\3/4\\ turn). Alternatively, the packaging and closure could be designed with a stop feature of other indexing to indicate how the cap should be tightened. The closure instructions should be consistent with the language in the packaging test report and written so the user is able to duplicate the closure method. In the NPRM, we proposed to add language to Sec. 178.2(c) to clarify closure instruction requirements. The new language clarifies that any closure method is authorized provided that it is measurable and repeatable. Several commenters express concern with this new language, suggesting that it is a significant, unnecessary, and potentially costly new requirement (RIPA); that it will be ineffective because closure failures, when they occur, are more likely the result of human error and not closing the package in accordance with the closure instructions (DGAC); and that it may not always be possible to employ a closure method that is ``measurable'' (FIBCA) or ``repeatable'' (RIPA). Comments are not correct that the proposed language requiring packagings to be closed ``in the same manner'' as when the package design type was tested is a new requirement; this is a longstanding regulatory requirement. The proposed revision to this section was intended to clarify that packaging closure methods must be consistent and repeatable, but need not necessarily require instruments such as a torque wrench. We are confident that manufacturers will be able to develop closure methods for all packagings that are both repeatable and measurable. The meaning of the term ``measurable'' will differ depending on the type of packaging. For example, on a bottle [[Page 5381]] ``measurable'' could be the torque setting on a torque wrench or the number of turns (or fraction thereof) past contact with a gasket. In the case of a flexible packaging, it could be the setting on a sewing device, type and grade of thread, the type of glue, the location where the tie-off is to be placed, or pressure settings on a sealing device. We agree that certain closure methods are not measurable in the sense that they cannot be quantified with a number and a unit of measure (e.g., 25 inch-pounds). In this final rule, we are revising Sec. 178.2(c)(1)(ii) to clarify that closure instructions must provide for a repeatable means of closure consistent with the means of closure used for performance testing. This change is intended to provide additional flexibility to packaging manufacturers and allow for packagings with a simpler means of closure. In addition, in this final rule we are amending Sec. 178.2(c) to clarify that a packaging manufacturer may transmit the information required in this section, including closure instructions, using electronic means instead of or in addition to making a written notification. Such electronic means of notification may include emailed transmissions or transmission on a CD or other similar device. Permitting the use of electronic means to meet the notification requirements in this section provides manufacturers with additional flexibility and will reduce compliance costs. Note that if a manufacturer elects to utilize electronic measures to make the required notifications, he must make a positive notification--that is, he must email or transmit the information specific to the packaging in question and the transmission must be in a form that can be printed in hard copy by the person receiving the notification. Referring the person receiving the notification to a website for the required information is not acceptable. In the NPRM, we proposed to revise the shipper's responsibilities in Sec. 173.22(a)(4) to include a requirement to retain a copy of the packaging closure instructions provided by the packaging manufacturer. As proposed, a shipper would be required to retain closure instructions for at least 375 days. Current requirements specify that the person transferring the packaging to the shipper or distributor must furnish a copy of the closure instructions; however, there is no requirement for the shipper to retain the documentation. A number of commenters (RIPA, DGAC, Mr. Frits Wybenga, Air Products, FIBCA, CropLife, and SSCI) oppose a requirement for shippers to retain packaging closure instructions. These commenters state the proposed requirement imposes a significant new record retention requirement without adequate justification or underlying data. RIPA states it ``is unaware of any data or other evidence developed by DOT to support its proposal. In fact, it is quite probable that leaks from closures are more often the result of human error rather than the unavailability of adequate closure instructions.'' RIPA suggests that if the proposal is adopted, the record retention period should be limited to 365 days and shippers should be required to retain only one current copy of a manufacturer's closure notification. Several commenters questioned the safety benefit of retaining packaging closure instructions for 375 days. Two commenters (DOE and NAAHAC) support the proposal to ensure that the necessary closure instructions and supporting test documents are available and used, but DOE's request that PHMSA clarify how this proposed requirement would apply to gas cylinders, cargo tanks, and portable tanks. DOE also requests that PHMSA simplify the retention requirement for variation packagings to keep document retention costs at a minimum. Air Products states precautionary labels exist on compressed gas cylinders that include closure instructions, and questions what benefit additional closure instructions would provide. NAAHAC requests that only the initial shipper be required to provide closure instructions and supportive documentation, if applicable, to the second user of the package. NAAHAC states ``to require that all of this information be provided to and maintained by [each] subsequent shipper who has opened the package and is reusing it would place a significant burden on the industry.'' The NACD suggested, if a sufficient need can be demonstrated for retaining the closure instructions, that PHMSA require each shipper to retain an on-site master list of closure instructions and variations instead of those for each individual packaging to reduce the amount of paperwork. Underlying our NPRM proposal to require shippers to retain packaging closure instructions was our belief that, in the absence of a regulatory requirement, most shippers retain closure instructions as a responsible business practice to ensure that employees know how to properly close a package. We, therefore, assumed that imposition of a regulatory requirement would result in only a minimally increased paperwork burden. However, the commenters indicate that retention of closure instructions is not a common practice. We continue to believe that shippers should retain and utilize the closure instructions provided by packaging manufacturers to ensure these packagings, including those with variations, are properly prepared and closed for transportation. As we stated in the NPRM, a packaging may be filled and closed by a hazmat employee other than the individual w","truncated":true,"body_characters":185058}