# Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR)

- **operation:** document
- **citation:** 78 FR 14702
- **title:** Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR)
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2013-03-07
- **effective on:** 2013-05-06
- **summary:** PHMSA is amending the Hazardous Materials Regulations in response to petitions for rulemaking submitted by the regulated community to update, clarify, or provide relief from miscellaneous regulatory requirements. Specifically, PHMSA is amending the recordkeeping and package marking requirements for third-party labs and manufacturers to assure the traceability of packaging; removing the listing for "NA1203, Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol"; harmonizing internationally and providing a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids Types B through F; allowing smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material; and providing greater flexibility by allowing the Dangerous Cargo Manifest to be in locations designated by the master of the vessel besides "on or near the vessel's bridge" while the vessel is in a United States port.
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Federal Register, Volume 78 Issue 45 (Thursday, March 7, 2013) [Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)] [Rules and Regulations] [Pages 14702-14716] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2013-04197] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 172, 173, 176, and 178 [Docket No. PHMSA-2011-0142 (HM-219)] RIN 2137-AE79 Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA is amending the Hazardous Materials Regulations in [[Page 14703]] response to petitions for rulemaking submitted by the regulated community to update, clarify, or provide relief from miscellaneous regulatory requirements. Specifically, PHMSA is amending the recordkeeping and package marking requirements for third-party labs and manufacturers to assure the traceability of packaging; removing the listing for ``NA1203, Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol''; harmonizing internationally and providing a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids Types B through F; allowing smokeless powder classified as a Division 1.4C material to be reclassified as a Division 4.1 material; and providing greater flexibility by allowing the Dangerous Cargo Manifest to be in locations designated by the master of the vessel besides ``on or near the vessel's bridge'' while the vessel is in a United States port. DATES: Effective Date: This rule is effective May 6, 2013. Voluntary Compliance Date: Voluntary compliance with all amendments is authorized March 7, 2013. FOR FURTHER INFORMATION CONTACT: Lisa O'Donnell at (202) 366-8553 at the Office of Hazardous Materials Standards, 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 1A. Notice of Proposed Rulemaking (NPRM) B. Commenters II. Discussion of Amendments and Applicable Comments A. General Comments B. Comments Beyond the Scope of this Rulemaking C. Provisions Not Adopted in This Final Rule and Discussion of Comments D. Provisions Adopted in This Final Rule and Discussion of Comments III. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866, Executive Order 13610, 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 A. Notice of Proposed Rulemaking (NPRM) On May 24, 2012, PHMSA (also ``we'' or ``us'') published a Notice of Proposed Rulemaking (NPRM) titled, ``Hazardous Materials: Miscellaneous Petitions for Rulemaking (RRR)'' under Docket PHMSA 2011- 0142 (HM-219) in the Federal Register. The NPRM and this final rule are part of the Department of Transportation's Retrospective Regulatory Review (RRR) designed to identify ways to improve the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The Administrative Procedure Act (APA) requires Federal agencies to give interested persons the right to petition an agency to issue, amend, or repeal a rule (5 U.S.C. 553(e)). PHMSA's rulemaking procedure regulations, in 49 CFR Sec. 106.95, provide for persons to ask PHMSA to add, amend, or delete a regulation by filing a petition for rulemaking containing adequate support for the requested action. The NPRM responded to eight petitions for rulemaking submitted to PHMSA by various stakeholders. In the NPRM, we proposed to amend the HMR to update, clarify, or provide relief from miscellaneous regulatory requirements at the request of the regulated community. Below is a summary of the proposed changes in the May 24, 2012 NPRM: Revise Sec. 178.3 to clearly indicate that a manufacturer or third-party laboratory mark may not be used when continued certification of a packaging is conducted by someone other than the original manufacturer or third-party testing laboratory, unless specifically authorized by the original manufacturer or third-party testing laboratory; Revise Sec. Sec. 178.601(l), 178.801(l) and 178.955(i) to relax the record retention requirements for packaging test reports and provide a chart to clearly identify the retention requirements; Revise the Hazardous Materials Table (HMT; 49 CFR Sec. 172.101) by removing the listing for ``NA1203, Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol''; and removing reference to gasohol in Sections Sec. Sec. 172.336(c)(4) and 172.336(c)(5); Revise Sec. 172.101 to refer to Sec. 173.151 to harmonize internationally and provide a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids, Types B through F; Add a reference in 49 CFR Sec. 178.601(c)(4) and Sec. 178.801(c)(7) to ASTM D4976-06 Standard Specification for Polyethylene Plastics Molding and Extrusion Materials to provide a range of acceptable resin tolerances in the plastic drum and IBC material; Allow smokeless powder classed as a Division 1.4C material to be reclassed as a Division 4.1 material to relax the regulatory requirements for these materials without compromising safety; and Allow the Dangerous Cargo Manifest (DCM) to be in locations designated by the master of the vessel besides ``on or near the vessel's bridge'' while the vessel is in a United States port to ensure that the DCM is readily available to communicate to emergency responders and enforcement personnel the presence and nature of the hazardous materials on board a vessel. PHMSA received six public comments in response to the above amendments proposed in the May 24, 2012, HM-219 NPRM. These comments are discussed in further detail in this final rule. B. Commenters The comment period for the May 24, 2012 NPRM closed on July 23, 2012. PHMSA received comments from six entities, five of which submitted the petitions discussed in the NPRM, and one is a council of manufacturers, shippers and carriers of hazardous materials, and their representative associations. Two commenters supported proposed changes in the HMR in their entirety; one commenter supported the proposed changes and asked for a further revision; one commenter disagreed with proposed changes pertaining to packaging marking and test report record retention, our intent to retain Special provision 172, and our intent to incorporate by reference ASTM Standard 04976-06 without stating that plastic drums and IBCs made from polyethylene meeting that standard do not constitute a different design type; one commenter asked that we adopt changes as they were written in their petition, not as they were proposed in the NPRM; and one commenter withdrew their petition. In consideration of the comments received to the public docket, PHMSA has developed this final rule. We address and discuss the proposals adopted and those not adopted into the HMR in this rulemaking under the heading: Discussion of Amendments and Applicable Comments. One commenter asked that we make additional amendments that were not specifically addressed in the NPRM and, therefore, these suggested amendments are considered beyond the scope of this [[Page 14704]] rulemaking. The comments, as submitted to this docket, may be accessed via http://www.regulations.gov and were submitted by the following companies, and associations (abbreviations used throughout the document and Docket Reference numbers are also provided): ---------------------------------------------------------------------------------------------------------------- Commenter Abbreviation Docket reference ---------------------------------------------------------------------------------------------------------------- Association of Hazmat Shippers........ AHS......................... PHMSA-2011-0142-0004. Dangerous Goods Advisory Council...... DGAC........................ PHMSA-2011-0142-0005. Hapag-Lloyd........................... ............................ PHMSA-2011-0142-0003. International Vessel Operators IVODGA...................... PHMSA-2011-0142-0002. Dangerous Goods Association. Plastic Drum Institute, Inc. and the PDI and RIBCA............... PHMSA-2011-0142-0007. Rigid Intermediate Bulk Container Association, Inc.. Sporting Arms and Ammunition SAAMI....................... PHMSA-2011-0142-0006. Manufacturers' Institute, Inc.. ---------------------------------------------------------------------------------------------------------------- II. Discussion of Amendments and Applicable Comment A. General Comments On September 30, 1993, President Bill Clinton issued Executive Order 12866, which asked Federal agencies ``to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision- making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public.'' On October 21, 2011, President Barack Obama issued Executive Order 13563, which is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866. This executive order urged government agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Finally, federal agencies were directed to periodically review existing significant regulations; retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome; and modify, streamline, expand, or repeal regulatory requirements in accordance with what has been learned. On May 10, 2012, President Barack Obama issued Executive Order 13610 (Identifying and Reducing Regulatory Burdens) reaffirming the goals of Executive Order 13563 (Improving Regulation and Regulatory Review) and Executive Order 12866 (Regulatory Planning and Review). Executive Order 13610 directs agencies to prioritize ``those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment.'' Executive Order 13610 further instructs agencies to give ``consideration to the cumulative effects of their regulations, including cumulative burdens, and prioritize reforms that will significantly reduce burdens.'' In response to Executive Orders 12866, 13610, and 13563, PHMSA has undertaken a retrospective review of the HMR. This final rule, and the NPRM that preceded it, are part of PHMSA's regulatory review initiative. This initiative was in response to petitions for rulemaking by the regulated community. Its intent is to update, clarify, or provide relief from miscellaneous regulatory requirements. The NPRM provided an opportunity for further public participation in the development of the regulatory amendments, and promoted exchange of information and perspectives among the various stakeholders. Six entities commented on the NPRM. PHMSA fully considered all comments. The comments are comprehensive and raised important issues that need to be addressed. A detailed description of the original proposals in the May 24, 2012 NPRM, a summary of the comments received, a response to those comments, and PHMSA's decision are detailed below. B. Comments Beyond the Scope of This Rulemaking In this section, PHMSA discusses the comments to the NPRM that provided suggestions for additional revisions that were not specifically addressed in the NPRM. Based on an assessment of the proposed changes and the comments received, PHMSA identifies one comment as beyond the scope of this rulemaking action. The comments submitted by IVODGA asked that we consider a revision to the proposed language in Sec. 176.30(a) to insert: ``The carrier may use the DCM format found in the International Conference on Facilitation of Maritime Travel and Transport (FAL Convention), Form 7, as amended, for these purposes.'' Referring to the FAL Convention Form 7 as an acceptable DCM format was not proposed in the NPRM and, therefore, the regulated community was not given the opportunity to comment on this amendment. For this reason, PHMSA is unable to address this suggested revision in this rule. However, it should be noted that the HMR would not prohibit the use of the FAL Convention Form 7 provided that it contains all of the required information on the DCM. If we do choose to pursue adoption of this beyond the scope comment, we will do so in a separate rulemaking. Alternatively, if IVODGA believes this amendment warrants rulemaking action, we encourage them to file a petition for rulemaking in accordance with Sec. 106.95 including all information (see Sec. 106.100) needed to support a petition. C. Provisions Not Adopted in This Final Rule and Discussion of Comments In this section, PHMSA discusses the changes proposed in the NPRM and the comments received in response to the NPRM. Based on an assessment of the proposed changes and the comments received, PHMSA identified one provision that we are not adopting in this final rule. Specifically, PHMSA received a comment from Plastic Drum Institute, Inc. (PDI) and the Rigid Intermediate Bulk Container Association, Inc. (RIBCA) withdrawing their petitions for rulemaking. Below is a summary of the amendment proposed, the comment received, and PHMSA's rationale for not adopting such an amendment. In two petitions (P-1554 and P-1564) addressed in the NPRM, RIBCA and PDI asked that we incorporate by reference ``ASTM D4976-06, Standard Specification for Polyethylene Plastics Molding and Extrusion Materials,'' which provides standard requirements for polyethylene plastic molding and extrusion materials. The petitioners also asked that we revise the HMR to state that plastic drums or Intermediate Bulk Containers (IBCs) made from polyethylene meeting ASTM D4976-06 would not constitute a different packaging provided the polyethylene used is within a tolerance defined in the standard. PDI and RIBCA indicated in the petitions that their members have been cited for ``probable violations'' for a number of reasons pertaining to [[Page 14705]] changes in material construction in their plastic drums and IBCs. In the NPRM we proposed to incorporate by reference in Sec. 171.7 ASTM D4976-06, Standard Specification for Polyethylene Plastics Molding and Extrusion Materials, and revise Sec. Sec. 178.509(b)(1) and 178.707(c)(3) to include reference to ASTM D4976-06. Packaging testing data was not provided and, consequently, we were unable to determine if packagings manufactured of resins within the tolerance range specified in the standard passed the performance criteria. For this reason, we did not propose to revise the HMR to state that plastic drums or IBCs made from polyethylene meeting ASTM D4976-06 tolerances would not constitute a different packaging. RIBCA and PDI filed a notice of withdrawal of the petitions. Therein, they suggested that by proposing the incorporation of ASTM D4976-06 without stating that plastic drums or IBCs made from polyethylene meeting ASTM D4976-06 do not constitute a ``different packaging'' as defined in Sec. 178.601(c), PHMSA was in effect imposing a greater burden on industry. They indicate that their petitions were essentially intended ``to advise enforcement staff that a certain range of specifications should be recognized as `equivalent' for purposes of deciding whether new design qualification tests were required under the HMRs.'' They further state that they did not intend for ASTM D4976-06 to be considered an exhaustive list of what is acceptable in manufacturing their products. Furthermore, they contend that ``a change in resin specifications, whether within or outside the referenced ASTM standard, cannot by itself, absent a performance test failure, justify imposition of a fine.'' The Dangerous Goods Advisory Council (DGAC) also commented on this provision. DGAC supported the incorporation by reference of ASTM 04976-06, but expressed a preference that PHMSA state that variations of material density within ASTM D4976- 06 would not constitute a new design type. While we support the incorporation by reference of ASTM D4976-06 to provide acceptable ranges for materials used in the manufacture of plastic drums and IBCs, we are not incorporating this standard in this final rule. The intent of PHMSA in its proposal was not to impose a greater burden on industry, but rather to refer to an industry standard for guidance as to acceptable ranges in materials used to manufacture hazardous materials packagings. For this reason, we are not incorporating by reference ASTM D4976-06 into the HMR. D. Provisions Adopted in This Final Rule and Discussion of Comments In this section, PHMSA discusses the changes proposed in the NPRM and the comments received in response to the NPRM. Based on an assessment of the proposed changes and the comments received, PHMSA is adopting these provisions in this final rule. Also, to clearly identify the issues addressed in this rule, PHMSA provides the following list of adopted amendments discussed in this section: Revise Sec. 178.3 to clearly indicate that a manufacturer or third-party laboratory mark may not be used when continued certification of a packaging is conducted by someone other than the original manufacturer or third-party testing laboratory, unless specifically authorized by the original manufacturer or third-party testing laboratory; Revise Sec. Sec. 178.601(l), 178.801(l), and 178.955(i) to relax the record retention requirements for packaging test reports and provide a chart to clearly identify the recordkeeping requirements; Revise the Hazardous Materials Table (HMT; 49 CFR Sec. 172.101) by removing the listing for ``NA1203, Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol''; and removing reference to gasohol in Sec. Sec. 172.336(c)(4) and 172.336(c)(5); Revise Sec. 172.101 to refer to Sec. 173.151 to harmonize internationally and provide a limited quantity exception for Division 4.1, Self-reactive solids and Self-reactive liquids, Types B through F; Allow smokeless powder classed as a Division 1.4C material to be reclassed as a Division 4.1 material to relax the regulatory requirements for these materials without compromising safety; Allow the DCM to be in locations designated by the master of the vessel besides ``on or near the vessel's bridge'' while the vessel is in a United States port to ensure that the DCM is readily available to communicate to emergency responders and enforcement personnel the presence and nature of the hazardous materials on board a vessel. Certification Packaging Marking and Recordkeeping Requirements (P-1479) In a petition for rulemaking (P-1479), gh Package & Product, Testing and Consulting, Inc. requested that PHMSA consider amending the HMR to indicate that an entity performing continued packaging certification on a UN certification packaging is not allowed to use the original manufacturer's or third party laboratory's mark unless authorized by the manufacturer or third-party laboratory. The petitioner also requested PHMSA to amend the HMR to provide that packaging test reports are kept for a limited time instead of the current requirement of ``until the packaging is no longer manufactured.'' Marking Regarding the manufacturer's or third party tester's mark, the petitioner stated that his laboratory tested a packaging at least three times, and the packaging failed each time. Eleven years after the petitioner had tested the packaging, he learned that the package that had failed in his laboratory was still being manufactured and that the petitioner's symbol was being used on the packaging as the packaging tester's mark. For these reasons, the petitioner was concerned that the regulations expose the manufacturer and the original third-party test laboratory to potential liability for defective packaging and other packaging violations. The current regulations provide the person who is certifying compliance of a packaging the option of marking the packaging with a symbol rather than the company name and address provided that the symbol is registered with PHMSA's Associate Administrator for Hazardous Materials Safety. While it is implied that the symbol being used is that of the person who has registered the symbol, it is not explicit. The petitioner has indicated that since the regulations do not specify who is authorized to use the mark, some third-party retesters that did not initially certify the packaging are continuing to use the original third-party laboratory's symbol to certify compliance. While the symbol is associated with the original manufacturer or third-party laboratory, that entity has no control over the packaging being retested by someone else. In the NPRM, we proposed to revise Sec. 178.3 to clarify that the required marking must identify the person who is certifying that the packaging meets the applicable UN Standard. We further proposed that, for continued certification of the packaging through periodic retesting, the mark must identify the person who certifies the packaging. DGAC disagrees with the proposed changes stating that they would have the effect of replacing, in the UN performance packaging marking, the mark of the person who performed the design qualification tests with the mark of the person who performed the most recent periodic retest. DGAC states that ``periodic retesting does not necessarily [[Page 14706]] confirm compliance with all requirements applicable to a UN design type (e.g., requirements in Sec. Sec. 178.504-523).'' Further, they state that: [A] consequence of the proposed changes is that the UN package marking for a given design type would have to be changed at least every year in the case of single or composite packagings and every two years in the case of combination packagings. It does not appear that PHMSA has considered the costs of changing these package markings at this frequency in its regulatory evaluation. At a minimum, such marking changes could result in considerable administrative costs. In addition, we question whether these changes would provide a meaningful enhancement to safety. PHMSA's intent has been that the certification mark that is used on the packaging is that of the person manufacturing that packaging or testing the packaging on behalf of the manufacturer. If a packaging that passed an original design qualification test by one manufacturer is then made and retested by another manufacturer, the symbol or name of the manufacturer doing the retesting should be on the packaging. While the periodic retesting requirements are less stringent in some regards than the design qualification tests, e.g., with respect to the vibration test as detailed in Sec. 178.608, when a manufacturer or third party places the UN marking on a packaging following either a design qualification test or a retest, that entity is certifying that the packaging meets the UN requirements for that packaging. PHMSA's intent with respect to whose mark may be used at what time is documented in penalty action reports published on PHMSA's Web site that indicate that it is a violation to mark a packaging with the symbol of a manufacturer or packaging certifier other than the company that actually manufactured or certified the packaging.\1\ Since this is a clarification of the HMR, the administrative costs will not change if the packaging testers are already complying with the HMR. --------------------------------------------------------------------------- \1\ See http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Press%20Releases/2011%20Hazmat%20Penalty%20Action%20Report.pdf , --------------------------------------------------------------------------- For these reasons, PHMSA is adopting the changes proposed regarding the packaging certifier's mark in this final rule and is revising Sec. 178.3 to clearly indicate that the required marking must identify the person who is certifying that the packaging meets the applicable UN Standard. Further, for continued certification of the packaging through periodic retesting, the marking must identify the person who certifies that the packaging continues to meet the applicable UN standard. Test Reports Regarding the packaging test reports, the petitioner explained that the record retention requirements indicate that the test report must be maintained at each location where the packaging is manufactured and each location where the design qualification tests are conducted for as long as the packaging is produced and for at least two years thereafter. According to petitioner, often the original manufacturer or third-party laboratory is not aware that a packaging is still being made. The petitioner sought relief from the paperwork burden. In the NPRM we proposed to revise Sec. 178.601(l), which specifies recordkeeping requirements for testing non-bulk packaging; Sec. 178.801(l), which specifies recordkeeping requirements for testing IBCs; and Sec. 178.955(i), which specifies recordkeeping requirements for testing large packagings to indicate that records are maintained until the next periodic retest. DGAC opposes this change, stating that: PHMSA may alter the required frequency based on an approval and, in the case of IBCs and Large packagings, PHMSA may substitute a quality control program for required periodic retesting (see Sec. 178.801(e)(2)). As such, the periodic retest date is not a date certain, raising the question of how the person who conducted the design qualification tests can know the actual time period for retaining records. If PHMSA maintains the proposed record retention requirements in some form, we recommend the retention period be tied to the date of the design qualification testing rather than the date of periodic retesting. When the required packaging retest frequency is based on an approval and, in the case of IBCs and Large packagings, a quality control program is substituted for required periodic retesting, records would have to be maintained predicated on the specifications of each approval. We do agree with DGAC that retest dates may vary depending on a variety of factors and, in this final rule, we are adding the word ``required'' in conjunction with ``periodic retest'' to clarify that records of the retest must be kept only five years after the HMR- required test is performed successfully. Specifically, we are revising the language proposed in the NPRM in Sec. 178.601(l), which specifies recordkeeping requirements for testing non-bulk packaging; Sec. 178.801(l), which specifies recordkeeping requirements for testing IBCs; and Sec. 178.955(i), which specifies recordkeeping requirements for testing large packagings, to indicate that records are maintained until the next required periodic retest is successfully performed and a new test report produced. In all other respects we are amending the HMR as proposed in the NPRM. In doing so, we are limiting the document retention period for persons conducting initial design testing to five years beyond the next successful required periodic retest. In addition, we provide a chart to clearly identify the retention requirements for test reports. Clarification of Alcohol and Gasoline Mixtures (P-1522) In its petition (P-1522), Shell Chemicals asked PHMSA to remove from the HMT the listing for ``Gasohol, with not more than 10% ethanol.'' Shell stated that the proper shipping names for ``Gasoline, includes gasoline mixed with ethyl alcohol (ethanol), with not more than 10% alcohol'' and ``Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol,'' provide the necessary entries for accurate and specific descriptions of these fuel blends. Consistent with the removal of gasohol from the HMT, Shell Chemicals asked that we remove reference to gasohol in Sec. Sec. 172.336(c)(4) and 172.336(c)(5), which contain hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels. These provisions were amended as the result of a final rule issued on January 28, 2008 under Docket HM-218D (73 FR 4699) intended to help emergency responders identify and respond to the hazards unique to fuel blends with high ethanol concentrations. In the January 28, 2008 final rule, we revised the entry for ``Gasohol, gasoline mixed with ethyl alcohol, with not more than 20% alcohol'' to limit the applicability of the entry to gasoline mixtures with not more than 10% alcohol. In addition, we amended the listing for Gasoline, to read ``Gasoline, includes gasoline mixed with ethyl alcohol, with not more than 10% alcohol.'' At the time, Shell suggested that we remove the entry ``NA1203, Gasohol'' and revise the entry for ``Gasoline'' to add a special provision that specifically communicates to shippers that the entry ``Gasoline'' may be used for gasoline and ethanol blends with not more than 10% ethanol for use in spark ignition engines. While we agreed then that Shell's suggestion had merit, we did not remove the entry ``Gasohol'' in HM-218D. We did however revise the entry ``Gasoline'' to allow for that description to be used for gasoline and ethanol blends with not more than 10% ethanol. We agree that the proper shipping names for ``Gasoline, includes gasoline [[Page 14707]] mixed with ethyl alcohol, with not more than 10% alcohol,'' and ``Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol,'' provide the necessary entries for accurate and specific description of these fuel blends. We also agree that the proper shipping name for ``Alcohol, n.o.s.'' is not as specific as the listings for Gasoline, including ``gasoline mixed with ethyl alcohol, with not more than 10% alcohol,'' and ``Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture with more than 10% ethanol.'' Shell Chemicals also petitioned for the removal of Special Provision 172 from Column 7 in association with all packing groups for the Proper Shipping Name ``UN1987, Alcohols, n.o.s.'' Special Provision 172 stated that ``this entry includes alcohol mixtures containing up to 5% petroleum products.'' Shell contended that: Canada does not permit the use of `UN1987, Alcohols, n.o.s.' for alcohol mixtures containing up to 5% petroleum products. A shipment originating in the United States, destined for a customer in Canada using the proper shipping name of ``UN1987, Alcohols, n.o.s.'' must change the placard and the proper shipping name and to use the entry `UN3475, Ethanol and Gasoline mixture,' when the packaging is returned to the United States. The use of both PSN entries causes a lot of confusion. For these reasons, Shell stated that these blends should not be permitted to be transported under the ``UN 1987, Alcohols, n.o.s.''; rather, ``NA 1987, Denatured alcohol,'' and ``UN 3475, Ethanol and gasoline mixture or Ethanol and motor spirit mixture or Ethanol and petrol mixture,'' are more appropriate descriptions. In the NPRM we retained Special Provision 172 in association with ``Alcohols, n.o.s.'' We indicated that, while we agree that ``Denatured alcohol'' is a more accurate description, this proper shipping name applies to domestic shipments only and may not be available to imported shipments of alcohol mixtures containing up to 5% petroleum products. DGAC, in their comments, agrees with Shell and states that: [I]n North America, international shipments of gasoline/ethanol mixtures are predominately between the US and Canada by either highway or rail. Canada does not permit the use of UN1987 in the manner permitted by Special Provision 172. Shipments where UN1987 is used for ethanol/gasoline mixtures face frustrations when moving into Canada, requiring placards to be changed to comply with Canadian regulations.'' DGAC states that the full range of gasoline and ethanol concentrations is covered by UN1203 and UN3475, making Special Provision 172 unnecessary. An alert issued by Transport Canada contradicts these statements.\2\ That alert was issued to respond to incidents involving alcohol and petroleum mixtures and states: --------------------------------------------------------------------------- \2\ http://www.tc.gc.ca/eng/tdg/newsletter-spring2006-323.htm (Date modified: 3/6/2012) (Date accessed: 9/12/2012). [W]hen dealing with mixtures that contain a high percentage of alcohol (example ethanol) and a low percentage (maximum 5%) of petroleum products (example gasoline), the following shipping name is to be used: Alcohols, n.o.s., Class 3, UN1987, (mixture of --------------------------------------------------------------------------- alcohol with a petroleum product content up to 5%). This is to ensure that these mixtures are readily identifiable and refer emergency responders to emergency response guidance specifying use of alcohol-resistant foam. While PHMSA agrees that the full range of gasoline and ethanol concentrations can be covered by UN1203 and UN3475, when the regulations were changed to incorporate UN3475 and the number of shipments and types of gasoline/ethanol blends increased, it was made readily apparent by multiple stakeholders, including industry, emergency responders, and local, state and Federal government entities, that there was a need for that special provision. Also, removing Special Provision 172 from the UN1987 entry as suggested by Shell and DGAC leaves no HMT entry for a blend of ethanol and gasoline that is not directly intended for use in an internal combustion engine and does not meet PG II criteria. As such, in this final rule we are amending the HMT by removing the listing for ``Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol.'' We are also revising Sec. 172.336 to remove all references to ``gasohol'' and to add a table to more clearly indicate hazard communication requirements for compartmented cargo tanks, tank cars, or cargo tanks containing these fuels. While the preamble of the NPRM indicated that we were intending to retain Special Provision 172, the regulatory text showed that it was removed. This was a typographical error on our part. In this final rule we are retaining reference to Special Provision 172 in the listings for ``Alcohols, n.o.s.'' Self-Reactive Solid Type F (P-1542) In a petition (P-1542), the Association of Hazmat Shippers (AHS) requested that PHMSA amend the HMT to reference Sec. 173.151, exceptions for Class 4, in column 8A to provide the limited quantity exception for Self-reactive solid, Type F materials, consistent with international regulations. According to the petitioner, imports of this material may be handled as limited quantities, but domestic shipments must be treated as fully regulated hazardous materials. They indicated that this situation has led to confusion and frustration, particularly upon reshipment of the same products either in the United States or internationally. In the interest of international harmonization and clarification, in the NPRM we proposed to expand on the AHS petition to authorize all eligible self-reactive liquid and solid material as limited quantities in accordance with the type and quantity of substances authorized in the UN Model Regulations. AHS offered ``strong support for adoption into the rules of general applicability of the changes proposed for Sec. 173.151.'' In this final rule we authorize types B through F non-temperature controlled liquid and solid self-reactive materials as limited quantities by amending the listings in the HMT for Self-reactive solids and Self-reactive liquids, Types B through F, to add references in column 8(a) in the HMT to Sec. 173.151. DOT-SP 9735, Dangerous Cargo Manifest (DCM) Location (P-1556) The International Vessel Operators Dangerous Goods Association (IVODGA) (formerly known as the International Vessel Operators Hazardous Materials Association, Inc.) submitted a petition (P-1556) requesting that PHMSA revise the requirements for where the DCM is kept onboard when the vessel is docked a United States port. Section 176.30(a) requires the DCM be ``kept in a designated holder on or near the vessel's bridge.'' According to IVODGA, when a vessel is underway, the bridge is occupied at all times and the DCM is readily accessible; however, when a vessel is docked in port during loading and unloading operations, the bridge is often left unattended and locked for security purposes. Thus, the requirement to keep the DCM on or near the vessel's bridge at all times is contrary to the purpose of the DCM, which should be readily available to communicate to the crew and emergency responders the presence and nature of the hazardous materials on board a vessel. Given the impracticality of maintaining the DCM on or near the vessel's bridge while the vessel is docked in port, IVODGA requested that PHMSA allow the DCM to be kept in a place other than the bridge of the vessel. [[Page 14708]] Hapag-Lloyd AG currently holds a special permit (DOT-SP 9735) that authorizes the DCM ``to be retained in a location other than on or near the bridge'' that subject vessels are in port. The special permit requires the DCM to be maintained either in the vessel's cargo office or another location designated by the master of the vessel. The special permit further requires the DCM to be readily accessible to emergency responders, and for a sign to be placed in the designated holder on or near the vessel's bridge indicating the location of the DCM while the vessel is in port. During loading and discharging operations, the vessel's cargo office is attended and a working copy of the DCM is updated as hazardous materials are loaded and discharged. This working copy, therefore, would contain the most complete and correct information concerning hazardous materials aboard the vessel at any time during the loading/discharging process. The cargo office would also be readily accessible in an emergency, so the DCM would be immediately available to first responders. We received only positive comments on this proposal. Hapag-Lloyd commented in support of the proposed change. They wrote: Hapag-Lloyd is the world's fifth largest liner shipping company, handling 5.5 million containers each year, operating a fleet of more than 135 containerships which have a capacity exceeding 600,000 TEU (20-ft. equivalent units), serving 130 countries throughout Europe, Asia, the Americas, and Africa. Since it was first issued in 1987, Hapag-Lloyd, as holder of DOT-SP 9735, has handled over one million dangerous goods shipments without incidents related to the terms of this exemption/special permit. IVODGA welcomes the proposed change and asks that PHMSA consider a further minor revision to the proposed language in Sec. 176.30 (a) to include the language: ``The carrier may use the DCM format found in the FAL Convention, Form 7, as amended, for these purposes.'' As indicated in the background section of this rule, such a revision would be beyond the scope of this rulemaking because the language was not proposed in the NPRM and was, therefore, not available for public comment. If IVODGA believes that such language should 
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