{"operation":"document","citation":"77 FR 24885","title":"Hazardous Materials; Miscellaneous Amendments (RRR)","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"proposed","official":true,"published_on":"2012-04-26","effective_on":null,"summary":"PHMSA proposes to make miscellaneous amendments to the Hazardous Materials Regulations to update and clarify certain regulatory requirements. These proposed amendments are designed to promote safer transportation practices; eliminate unnecessary regulatory requirements; address a petition for rulemaking; incorporate a special permit into the Hazardous Materials Regulations; facilitate international commerce; and simplify the regulations. Among other provisions, PHMSA is proposing to update various entries in the Hazardous Materials Table and corresponding special provisions, clarify the lab pack requirements for temperature-controlled materials, and revise the training requirements to require that a hazardous material employer must make hazardous materials employee training records available upon request to an authorized official of the Department of Transportation (DOT) or the Department of Homeland Security (DHS).","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2012-9895.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2012-9895.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2012-9895","source_url":"https://www.federalregister.gov/documents/2012/04/26/2012-9895/hazardous-materials-miscellaneous-amendments-rrr","body":"Federal Register, Volume 77 Issue 81 (Thursday, April 26, 2012) [Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)] [Proposed Rules] [Pages 24885-24907] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2012-9895] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 105, 171, 172, 173, 177, 178, and 180 [Docket No. PHMSA-2011-0138 (HM-218G)] RIN 2137-AE78 Hazardous Materials; Miscellaneous Amendments (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA proposes to make miscellaneous amendments to the Hazardous Materials Regulations to update and clarify certain regulatory requirements. These proposed amendments are designed to promote safer transportation practices; eliminate unnecessary regulatory requirements; address a petition for rulemaking; incorporate a special permit into the Hazardous Materials Regulations; facilitate international commerce; and simplify the regulations. Among other provisions, PHMSA is proposing to update various entries in the Hazardous Materials Table and corresponding special provisions, clarify the lab pack requirements for temperature-controlled materials, and revise the training requirements to require that a hazardous material employer must make hazardous materials employee training records available upon request to an authorized official of the Department of Transportation (DOT) or the Department of Homeland Security (DHS). DATES: Comments must be received by June 25, 2012. ADDRESSES: You may submit comments by any of the following methods: Federal Rulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments. Fax: 202-493-2251. Mail: Dockets Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground [[Page 24886]] Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590- 0001. Hand Delivery: To U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: Include the agency name and docket number PHMSA-2011- 0138 (HM-218G) or rule identification number (RIN 2137-AE78) for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, 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 (65 FR 19477), or you may visit http://www.regulations.gov . Docket: You may view the public docket through the Internet at http://www.regulations.gov or in person at the Docket Operations office at the above address (See ADDRESSES). FOR FURTHER INFORMATION CONTACT: Rob Benedict, Standards and Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Contents I. Background II. Section-by-Section Review III. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866, Executive Order 13563 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis I. Background The purpose of this NPRM is to update and clarify existing requirements by incorporating changes into the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) based on PHMSA's own initiatives. The proposed amendments were identified through an extensive review of the HMR and previously-issued letters of interpretation to the regulated hazardous materials transportation community. In addition, this NPRM proposes to incorporate a widely-held special permit with a longstanding history of safety into the HMR and respond to a petition for rulemaking. To this end, PHMSA is proposing to revise, clarify, and relax certain regulatory requirements. Specifically, PHMSA is proposing to: Permit designated agents for non-residents to submit designation requests by electronic mail in addition to traditional mail. Add the Sulphur Institute's (TSI) ``Molten Sulphur Rail Tank Car Guidance'' document to the list of informational materials not requiring incorporation by reference in Sec. 171.7 (Responds to petition for rulemaking P-1581). Revise the Sec. 172.101 Hazardous Materials Table (HMT) to correct an error in the transportation requirements for entries listed under the proper shipping name, ``Hydrazine Dicarbonic Acid Diazide.'' Revise the Sec. 172.101 HMT to remove the entry for ``Zinc ethyl, see Diethylzinc'' which was superseded by proper shipping names adopted in a previous rulemaking. Revise special provision 138 in Sec. 172.102 to clarify the lead solubility calculation utilized for classification of material as a Marine Pollutant. Remove references to special provisions B72 and B74 in Sec. 172.102. These special provisions were removed in a previous rulemaking; however, twelve entries in the Sec. 172.101 HMT still contain references to these special provisions. Revise the shipping paper requirements in Sec. 172.203(e) to permit the phrase ``Residue last contained'' to be placed before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence. Update the training recordkeeping requirements in Sec. 172.704 to specify that a hazardous materials (hazmat) employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or the Department of Homeland Security. Clarify that the material of trade exception in Sec. 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks. Clarify the lab pack provisions in Sec. 173.12 pertaining to temperature-controlled materials contained in a lab pack. Clarify the exceptions for external emergency self-closing valves on cargo tank motor vehicles (CTMVs) in Sec. 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation. Correct an inadvertent deletion of the Sec. 173.62 packaging requirements for explosives. Incorporate special permit DOT SP-13556 into Sec. 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks. Revise the requirements for cargo air transport of alcoholic beverages Sec. 173.150 to harmonize with the International Civil Aviation Organization's (ICAO) Technical Instructions (TI). Clarify the exceptions in Sec. 173.159a for non-spillable batteries secured to skids or pallets. Revise Sec. 178.2(c) to clarify the applicability of the notification requirements for packages containing residues. Clarify the inspection record requirements in Sec. 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases. Clarify the requirements for the Flame Penetration Resistance test required for chemical oxygen generators and certain compressed gases in Appendix E to Part 178. II. Section-by-Section Review Part 105 Section 105.40 This section provides the requirements for designated agents for non-residents. In specific instances, such as the approval of fireworks manufactured by a foreign entity, the HMR require non-residents of the United States who perform hazmat operations within the United States to designate a permanent resident of the United States to act as an agent and receive documents on behalf of the non- [[Page 24887]] resident. As specified in the HMR, non-residents of the United States must prepare a designation notification and file it with PHMSA in accordance with Sec. 105.40. Currently, the HMR only permits designated agent notification documents to be mailed to the Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, Attn: PHH-30, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, as specified in Sec. 105.40(d). Revising this requirement to allow an agent designation to be transmitted by electronic mail would provide greater regulatory flexibility and align the submission of these documents with the procedures currently in place for the submission of other documents required by PHMSA. In this NPRM, PHMSA is proposing to amend Sec. 105.40(d) to permit agent designations to be submitted by electronic mail to the special permits or approvals office, as appropriate. The option to submit a completed agent designation to the Approvals and Permits Division by mail would remain unchanged. Part 171 Section 171.7 The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) directs agencies to use voluntary consensus standards in lieu of government-unique standards except where inconsistent with law or otherwise impractical. Section 171.7 lists all standards incorporated by reference into the HMR and informational materials not requiring incorporation by reference. The informational materials not requiring incorporation by reference are noted throughout the HMR and provide best practices and additional safety measures that while not mandatory, may enhance safety and compliance. The Sulphur Institute (TSI) represents the sulphur industry in the United States on a variety of issues including the safe transportation of sulphur in commerce. TSI submitted petition P-1581 requesting that PHMSA incorporate by reference TSI's ``Molten Sulphur Tank Rail Car Guidance Document.'' TSI also requested that we amend Sec. 173.24(b)(4) to add the sentence ``Dried residue of molten sulfur on tank cars shall meet the `Molten Sulphur Rail Car Guidance Document' incorporated by reference in Sec. 171.7.'' TSI recognizes that molten sulphur rail tank cars with formed, solid sulphur obscuring tank car markings, labels, and stencils can present a safety risk. Furthermore, markings and labels with diminished visibility due to molten sulphur residue present an obstacle to not only those responsible for the safe handling of these rail tank cars, but also to first responders who rely on rapid and accurate identification of a material through hazard communication markings in the event of an accident or incident. Further, the presence of an excessive amount of formed, solid sulphur on molten sulphur tank car safety appliances may also lead to decreased effectiveness of safety equipment. To address these issues, TSI has created a document entitled ``Molten Sulphur Rail Tank Car Guidance'' which provides best practices for the safe transport of molten sulphur in rail tank cars. In this rulemaking, PHMSA proposes to adopt ``Molten Sulphur Rail Tank Car Guidance'' in the list of informational materials not requiring incorporation by reference in Sec. 171.7(b). The inclusion of this document as reference material in the HMR should provide rail shippers of molten sulfur with a greater situational awareness of safe transport conditions for this particular commodity and reduce rail incidents for this hazardous material. In addition, PHMSA proposes to revise the entries for ``Sulfur, Molten'' specified in the Sec. 172.101 HMT to reference special provision ``R1'' and add special provision ``R1'' to the R codes specified in Sec. 172.102(c)(6). This new special provision will recommend the use of the Molten Sulphur Rail Tank Car Guidance document when transporting ``Sulfur, Molten'' residues by rail; however, it will not make its use mandatory. By referencing this document, we believe a greater level of safety may be achieved during the transportation of rail tanks cars which have held or currently hold molten sulfur. Part 172 Section 172.101 This section contains the HMT and explanatory text for each of the columns in the table. In this NPRM, PHMSA is proposing a number of revisions to the Sec. 172.101 HMT, and the special provisions specified in Sec. 172.102 to clarify the regulations and correct inadvertent errors. Proposed changes to the Sec. 172.101 HMT will appear as an, ``add,'' ``remove,'' or ``revise,'' and include the following: Hydrazine dicarbonic acid diazide Zinc ethyl, see Diethylzinc Hydrazine dicarbonic acid diazide UN3469 Paint related material, flammable, corrosive (including paint thinning or reducing compound) UN2484 tert-Butyl isocyanate NA2927 Ethyl phosphonothioic dichloride, anhydrous NA2845 Ethyl phosphonous dichloride, anhydrous pyrophoric liquid NA2927 Ethyl phosphorodichloridate NA2845 Methyl phosphonous dichloride, pyrophoric liquid UN1831 Sulfuric acid, fuming with 30 percent or more free sulfur trioxide NA2448 Sulfur, molten UN2448 Sulfur, molten UN3492 Toxic by inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50 UN3493 Toxic by inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50 UN3488 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m\\3\\ and saturated vapor concentration greater than or equal to 500 LC50 UN3489 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50 UN3490 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m\\3\\ and saturated vapor concentration greater than or equal to 500 LC50 UN3491 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50 On January 28, 2008, PHMSA published a final rule under Docket Number PHMSA-2005-21812 (HM-218D) [73 FR 4699] entitled ``Hazardous Materials; Miscellaneous Amendments.'' In this final rule, one of the two duplicate entries in the Sec. 172.101 HMT for ``Hydrazine, aqueous solution, with more than 37% hydrazine, by mass'' was intended to be eliminated. Although one entry in the Sec. 172.101 HMT for ``Hydrazine, aqueous solution, with more than 37% hydrazine, by mass'' was deleted, during the table revisions of this final rule, Columns 5 through 10 for the [[Page 24888]] entries for ``Hydrazine, aqueous solution, with more than 37% Hydrazine, by mass'' Packing Groups II and III were inadvertently relocated below the entry ``Hydrazine dicarbonic acid diazide.'' ``Hydrazine dicarbonic acid diazide'' should not have any entries in Columns 5 through 10 as it is forbidden for transport in the HMR. The appearance of these entries in the Sec. 172.101 HMT is confusing and could potentially lead to the mistaken belief that ``Hydrazine dicarbonic acid diazide'' is not a forbidden material, but, rather authorized for transport as a Packing Group II or III material. Therefore, in this NPRM, we are proposing to remove the Packing Group II and III entries for the proper shipping name, ``Hydrazine dicarbonic acid diazide'' in the Sec. 172.101 HMT. On January 14, 2009, PHMSA published a final rule under Docket Numbers PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J) [74 FR 220] entitled ``Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.'' Among other revisions, PHMSA removed various specific entries for organometallic compounds and substances in the Sec. 172.101 HMT because these entries were superseded by more appropriate generic entries. As part of these revisions, the entry for ``UN1366 Diethylzinc'' was removed from the Sec. 172.101 HMT. However, the entry for ``Zinc ethyl, see Diethylzinc'' was inadvertently overlooked. In this NPRM, we are proposing to remove the proper shipping name, ``Zinc ethyl, see Diethylzinc'' since ``UN1366 Diethylzinc'' is no longer listed in the Sec. 172.101 HMT. Individuals offering ``Zinc ethyl'' should choose one of the more appropriate generic entries for organometallic compounds and substances added to the Sec. 172.101 HMT under the January 14, 2009 final rule. On January 13, 2009, PHMSA, in coordination with the Federal Railroad Administration (FRA), published a final rule under Docket Number FRA-2006-25169 [74 FR 1770], entitled ``Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials.'' Among other revisions, this final rule revised the HMR to improve the crashworthiness protection of railroad tank cars designed to transport poisonous inhalation hazard (PIH) materials. As part of this final rule, the Sec. 172.101 HMT and special provisions specified in Sec. 172.102 were amended to consolidate and update the special provisions applicable to the rail tank car transportation of PIH materials. The revisions to the Sec. 172.101 HMT were for ease of reference only and did not substantively change the requirements applicable to the transportation of PIH materials by railroad tank cars. Specifically, special provisions B71, B72, and B74 were removed from the Sec. 172.101 HMT and Sec. 172.102, while Sec. 172.244(a) was revised to incorporate the language from these eliminated special provisions. However, twelve additional references to special provisions B72, and B74 for selected entries in the Sec. 172.101 HMT were not removed at the time of publication of this final rule. Therefore, in this NPRM, PHMSA proposes to make the following amendments to the Column (7) special provisions of the Sec. 172.101 HMT: Special provision B72 is removed from Column (7) for the following entries: UN2484 tert-Butyl isocyanate; UN3492 Toxic by inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m\\3\\ and saturated vapor concentration greater than or equal to 500 LC50; UN3488 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m\\3\\ and saturated vapor concentration greater than or equal to 500 LC50; and UN3490 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m\\3\\ and saturated vapor concentration greater than or equal to 500 LC50. Special provision B74 is removed from Column (7) for the following entries: NA2927 Ethyl phosphonothioic dichloride, anhydrous; NA2845 Ethyl phosphonous dichloride, anhydrous pyrophoric liquid; NA2927 Ethyl phosphorodichloridate; NA2845 Methyl phosphonous dichloride, pyrophoric liquid; UN1831 Sulfuric acid, fuming with 30 percent or more free sulfur trioxide; UN3493 Toxic by inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50; UN3489 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50; and UN3491 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m\\3\\ and saturated vapor concentration greater than or equal to 10 LC50. In addition, as discussed above, PHMSA proposes to revise the entries for ``Sulfur, Molten'' specified in the Sec. 172.101 HMT to reference special provision ``R1.'' Section 172.102 This section contains the special provisions listed in column (7) of the Sec. 172.101 HMT. These special provisions contain packaging provisions, prohibitions, exceptions from requirements for particular quantities or forms of materials, and requirements or prohibitions applicable to specific modes of transportation. In this NPRM, PHMSA is proposing revisions to the special provisions specified in Sec. 172.102 to clarify the regulations and correct inadvertent errors. As discussed above, PHMSA proposes to add special provision ``R1'' to the R codes specified in Sec. 172.102(c)(6). This new special provision will reference the ``Molten Sulphur Rail Tank Car Guidance'' document as a resource for best practices for the cleaning of tank cars containing ``Sulfur, Molten.'' By referencing this document, we believe a greater level of safety can be achieved when transporting rail tanks cars which have held or currently hold molten sulfur. In this rulemaking, we propose to revise special provision 138 to harmonize the HMR with the International Maritime Dangerous Goods (IMDG) code and to clarify that the solubility calculation provided in special provision 138 should be applied when determining when to utilize the lead compounds, soluble n.o.s. entry in the List of Marine Pollutants found in Sec. 172.101, Appendix B. The defining criteria for the solubility of a lead compound is specified in special provision 138 in Sec. 172.102(c)(1). Special provision 138 specifies that a lead compound is soluble when it exhibits a solubility greater than 5 percent after being mixed with a 0.07 M (molar concentration) of hydrochloric acid and is stirred for one hour. If the material exhibits a solubility of 5 percent or less after the test is completed, it is considered insoluble and not subject to the HMR. The IMDG Code identifies ``Lead compounds, soluble, n.o.s.,'' in Columns 4 and 6 of [[Page 24889]] the Dangerous Goods List (DGL; Chapter 3.2) as a marine pollutant, and simultaneously refers to the definition for the solubility of lead compounds under Chapter 3.3.1, special provision 199. On March 5, 1999, the Research and Special Programs Administration (RSPA), the predecessor agency to PHMSA, published a final rule under Docket Number RSPA-98-4185 (HM-215C) [64 FR 10741], entitled ``Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.'' In HM-215C, when PHMSA incorporated the IMDG code's definition for ``Lead compounds, soluble, n.o.s.,'' in special provision 138 into the HMR, our intent was to mirror special provision 199 of the IMDG code and to permit the definition provided in this special provision to apply to both the ``lead compounds, soluble n.o.s.'' entry in the Sec. 172.101 HMT and the entry in the List of marine pollutants in Sec. 172.101, Appendix B. However, as adopted in the HMR, special provision 138 is unclear with regard to whether this criteria applies to marine pollutants. On December 29, 2006, PHMSA published a final rule under Docket Number PHMSA-2006-25476 (HM-215I) [71 FR 78596], entitled ``Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions.'' The HM-215I final rule revised the HMR to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions also harmonized the HMR with certain changes to the IMDG Code, the ICAO Technical Instructions, and the United Nations (UN) Recommendations. As part of the revisions in that final rule, new entries, ``UN3469, Paint related material, flammable, corrosive (including paint thinning or reducing compound),'' PG II, and PG III were added to the Sec. 172.101 HMT. However, these entries were never published in subsequent versions of the HMR. Therefore, in this NPRM, we are proposing to add the entries for ``Paint related material, flammable, corrosive (including paint thinning or reducing compound)'' UN3469, PG II, and PG III. Section 172.203 Section 172.202 specifies the requirements that a shipping description of a hazardous material must be indicated on a shipping paper. On December 29, 2006, PHMSA published a final rule under PHMSA- 06-25476 (HM-215I) [71 FR 78595] that permitted the continued use for domestic shipments of either one of two shipping description sequences in effect in the HMR on December 31, 2006, until January 1, 2013. Specifically, the HMR authorizes the basic description of a hazardous material to consist of either the identification number first, followed by the proper shipping name, hazard class, and packing group, or as an alternative description sequence, the proper shipping name, hazard class, ID number and packing group. In addition, the basic description described above and specified in paragraphs Sec. 172.202(a)(1)-(4) must be shown in the sequences described with no additional information interspersed. After January 1, 2013, only the basic shipping description sequence consisting of the identification number first, followed by the proper shipping name, hazard class, and packing group (in that order) is authorized. However, Sec. 172.203 provides allowances for a shipping paper to contain information in addition to the basic shipping description specified in Sec. 172.202. Specifically, Sec. 172.203(e)(1) permits that the shipping paper for a packaging containing the residue of a hazardous material may include the words ``RESIDUE: LAST CONTAINED * * *'' in association with the basic description of the hazardous material last contained in the packaging. Further, the shipping papers for tank cars containing the residue of a hazardous material must include the phrase, ``RESIDUE: LAST CONTAINED * * *'' before the basic description. While the HMR provides such a general provision, various international standards provide more specific guidance on the location of this phrase. Currently the ICAO TI, IMDG Code, and UN Model Regulations require this phrase, if used, to be placed either before or after the basic shipping description. In this NPRM, PHMSA proposes to revise Sec. 172.203(e)(1) to permit the shipping paper for a packaging containing the residue of a hazardous material to include the words ``RESIDUE: LAST CONTAINED * * *'' before or after the basic shipping description of the hazardous material last contained in the packaging. PHMSA also proposes to remove the language ``in association with'' and replace it with the language ``before or after'' to align with various international standards. This proposed revision harmonizes the HMR with the ICAO TI, IMDG Code and UN Model Regulations. For rail shipments of tank cars, Sec. 172.203(e)(2) requires that the description on the shipping paper for a tank car containing the residue of a hazardous material must include the phrase, ``RESIDUE: LAST CONTAINED * * *'' before the basic description. Prior to the publication of the HM-215I final rule, the proper shipping name was the first piece of information required in the basic shipping description, and therefore, the phrase, ``RESIDUE: LAST CONTAINED * * *'' preceded the proper shipping name. Effective January 1, 2013, rail shipments coming from Canada to the United States will be unable to comply with both the current requirements in the HMR for rail tank cars and the Transportation of Dangerous Goods (TDG) requirements. As stated above, after January 1, 2013, the proper shipping name will no longer be permitted to be the first piece of shipping information in the basic shipping description. Subsequently, the phrase, ``RESIDUE: LAST CONTAINED * * *'' will no longer immediately precede the proper shipping name. Furthermore the phrase, ``RESIDUE: LAST CONTAINED * * *'' may not be inserted into the basic description, as Sec. 172.202(b) specifies the basic shipping description may not contain any additional information interspersed in the sequence described in Sec. 172.202(a). Canada's TDG regulations currently permit a residue of hazardous material to be described as ``Residue--Last Contained'' or ``R[eacute]sidu--dernier contenu,'' followed by the shipping name of the dangerous goods last contained in the means of containment. Therefore, in this NPRM, PHMSA proposes to revise Sec. 172.203(e)(2) to require the description on the shipping paper for a tank car containing the residue of a hazardous material to include the phrase, ``RESIDUE: LAST CONTAINED * * *'' before or after the basic shipping description, or immediately preceding the proper shipping name. This change maintains the HMR's harmonization with the ICAO TI, IMDG Code and UN Model Regulations while permitting shipments transported to, from or within the United States to remain in compliance with the Canadian TDG shipping paper requirements. This revision will foster commerce between rail systems in the United States and Canada. [[Page 24890]] Section 172.704 The requirements for hazardous materials training are specified in Sec. 172.704. This section includes a description of the applicability for hazardous materials training, the necessary components of a training program, and the recurrent training and recordkeeping requirements. Currently, 49 CFR Part 172, Subpart I describes the requirements for security plans. Specifically, Sec. Sec. 172.802(d) and 172.820(i)(1) require that a copy of the security plan must be maintained and that security plan documentation be made available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation (DOT) or the Department of Homeland Security (DHS). Similar to the security plan requirements, the training requirements include a recordkeeping component. Specifically, as specified in Sec. 172.704(d), a record of current training, inclusive of the preceding three years, must be created and retained by each hazmat employer for as long as that employee is employed by that employer as a hazmat employee and for 90 days thereafter. However, unlike the security plan documentation, the HMR currently do not stipulate that the training records must be made available upon request to authorized officials of the DOT or DHS. The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation of hazardous material in intrastate, interstate, and foreign commerce. The Secretary has delegated this authority to PHMSA. Authority to enforce the HMR has been delegated to the Federal Aviation Administration ``with particular emphasis on the transportation or shipment of hazardous materials by air;'' the Federal Railroad Administration ``with particular emphasis on the transportation or shipment of hazardous materials by railroad;'' PHMSA ``with particular emphasis on the shipment of hazardous materials and the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of multi-modal containers that are represented, marked, certified, or sold for use in the transportation of hazardous materials;'' and the Federal Motor Carrier Safety Administration ``with particular emphasis on the transportation or shipment of hazardous materials by highway'' (CFR part 1, subpart C). In addition, as provided in the Homeland Security Act and as defined in a Memorandum of Agreement between the DHS and the DOT, the United States Coast Guard retained the ability to enforce the HMR with particular emphasis on the transportation or shipment of hazardous materials by vessel. Thus, enforcement of the HMR, including the training regulations, is shared among the DOT operating administrations, United States Coast Guard and DHS, with each placing particular emphasis on their respective authorities. Federal hazmat law, 49 U.S.C. 5121(b)(2), states that a person subject to this law shall make the records, property, reports, and information available for inspection when the Secretary undertakes an investigation or makes a request. The completion of training in accordance with Subpart H of Part 172 is essential for hazmat employees handling hazardous materials and ensures proper compliance with the HMR resulting in a greater level of safety. The recordkeeping requirements specified in Sec. 172.704(d) allow for hazmat employers and PHMSA personnel to verify that only individuals knowledgeable in the applicable regulations are handling hazardous materials. In an effort to foster greater compliance with the training requirements specified in Subpart H of Part 172, in this rulemaking we are proposing to revise Sec. 172.704(d) to require that an employer must make hazmat employee training records required by Subpart H of Part 172 available upon request, at a reasonable time and location, to an authorized official of DOT or DHS. Part 173 Section 173.6 Section 173.6 specifies the exceptions for shipments of materials of trade. A material of trade, is defined in Sec. 171.8 as ``a hazardous material, other than a hazardous waste, that is carried on a motor vehicle for the purpose of protecting the health and safety of the motor vehicle operator or passengers; for the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment); or by a private motor carrier (including vehicles operated by a rail carrier) in direct support of a principal business that is other than transportation by motor vehicle.'' Section 173.6 authorizes only specific hazard classes and quantities to utilize the materials of trade exception. A hazardous material that meets the definition of a material of trade and is transported by motor vehicle in conformance with Sec. 173.6 is not subject to any other requirements of the HMR except for those explicitly set forth or referenced in Sec. 173.6. PHMSA recently received a request for a formal letter of interpretation pertaining to the application of the materials of trade exception (Reference No.: 10-0101). The letter expressed confusion and concern regarding whether the exception would apply to Division 2.1 and Division 2.2 compressed gas transported in Dewar flasks. Dewar flasks are not considered cylinders but are often used to transport Division 2.2 cryogenic liquids. Currently, Sec. 173.6(a)(2) states that a Division 2.1 or 2.2 material in a cylinder with a gross weight not over 100 kg (220 pounds), may be transported as a material of trade provided it meets the definition of a material of trade specified in Sec. 171.8 and all other requirements of Sec. 173.6. As noted in PHMSA's response to this letter, Dewar flasks are permitted to utilize the exception specified in Sec. 173.6 provided they meet all the requirements of that section. PHMSA did not intend to limit the materials of trade exception solely to Division 2.1 or 2.2 materials packaged in cylinders. PHMSA acknowledges that this requirement needs additional clarification, and believes that increased clarity will help to ensure the proper intended application of the materials of trade exception. Therefore, in this NPRM, we are proposing to modify Sec. 173.6(a)(2) to clarify that Dewar flasks may be transported as materials of trade provided these materials meet all the requirements specified in Sec. 173.6. Section 173.12 Section 173.12 specifies the exceptions for shipment of waste materials including the requirements for waste packages known as ``lab packs.'' A lab pack, although not specifically defined in Sec. 171.8, is considered a large outer packaging containing small inner packagings that are filled with various compatible laboratory hazardous wastes. In accordance with Sec. 173.12, a lab pack is a combination packaging consisting of a glass inner packaging, not exceeding 4 L (1 gallon) rated capacity, or a metal or plastic inner packaging, not exceeding 20 L (5.3 gallons) rated capacity. Inner packagings containing liquid must be surrounded by a chemically-compatible absorbent material in sufficient quantity to absorb the total liquid contents. These inner packagings are then further packed in specification outer packaging and the completed package must not exceed a gross weight of 205 kilograms. The requirements and regulatory relief [[Page 24891]] provided for the transportation of waste hazardous materials under the lab pack exception are specified in Sec. 173.12(b) of the HMR. The requirements for lab packs were adopted in a final rule published under Docket Number HM-181 entitled, ``Performance Oriented Packaging Standards; Changes to Classification, Hazard Communication, Packaging and Handling Requirements Based on UN Standards and Agency Initiative'' and published on December 21, 1990 [55 FR 52402]. These requirements were adopted to align the HMR with regulations on lab packs issued by the Environmental Protection Agency. The lab packing section was recently amended in a final rule published on May 14, 2010, in the Federal Register under Docket Number PHMSA-2009-0289 (HM-233A) [74 FR 53413] entitled, ``Hazardous Materials: Incorporation of Special Permits into Regulations.'' As part of these amendments, certain widely-used and longstanding special permits that had an established safety record were incorporated into the HMR. Special Permit DOT SP-13192 was among these special permits, and it authorized the transport of additional hazardous materials not previously authorized for transport under Sec. 173.12. Specifically, the incorporation of this special permit authorized the transport of waste Division 4.2, Packing Group (PG) I material and Division 5.2 (organic peroxide) material in lab packs. PHMSA recently received a request for a formal letter of interpretation pertaining to the recent changes of the lab pack exception (Reference No.: 10-0233). The writer expressed confusion and concern regarding whether the amendments of the HM-233A final rule authorized the transportation, as lab packs, of Division 4.1 and Division 5.2 materials that were also required to be temperature- controlled. PHMSA explained that Sec. 173.12(b) permits certain waste materials to be placed in non-specification packagings which conform to the requirements of that section. Furthermore, hazardous materials placed in lab packs are also subject to additional safety control measures designed to mitigate the risks presented by these materials, such as quantity limitations, additional packaging, and segregation requirements. However, these control measures do not eliminate the requirement that lab packs containing materials required to be temperature-controlled must also comply with temperature-control requirements specified in Sec. 173.21(f)(1). PHMSA acknowledges that this requirement needs additional clarification, and believes that increased clarity w","truncated":true,"body_characters":113033}