{"operation":"document","citation":"78 FR 65454","title":"Hazardous Materials: Corrections and Response to Administrative Appeals (HM-215K, HM-215L, HM-218G and HM-219).","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2013-10-31","effective_on":"2013-10-31","summary":"This final rule corrects editorial errors and amends certain requirements in response to administrative appeals submitted by persons affected by certain final rules published in the Federal Register.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2013-24714.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2013-24714.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2013-24714","source_url":"https://www.federalregister.gov/documents/2013/10/31/2013-24714/hazardous-materials-corrections-and-response-to-administrative-appeals-hm-215k-hm-215l-hm-218g-and","body":"Federal Register, Volume 78 Issue 211 (Thursday, October 31, 2013) [Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)] [Rules and Regulations] [Pages 65454-65488] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2013-24714] [[Page 65453]] Vol. 78 Thursday, No. 211 October 31, 2013 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. Hazardous Materials: Corrections and Response to Administrative Appeals (HM-215K, HM-215L, HM-218G and HM-219); Final Rule Federal Register / Vol. 78 , No. 211 / Thursday, October 31, 2013 / Rules and Regulations [[Page 65454]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, and 178 [Docket No. PHMSA-2013-0041] RIN 2137-AF01 Hazardous Materials: Corrections and Response to Administrative Appeals (HM-215K, HM-215L, HM-218G and HM-219). AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule corrects editorial errors and amends certain requirements in response to administrative appeals submitted by persons affected by certain final rules published in the Federal Register. DATES: Effective date: The effective date of this document is October 31, 2013. Voluntary compliance date: PHMSA is authorizing voluntary compliance beginning October 31, 2013. Delayed compliance date: Unless otherwise specified, compliance with the amendments adopted in this final rule is required beginning January 1, 2014. Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of October 31, 2013. FOR FURTHER INFORMATION CONTACT: Aaron Wiener or Shane Kelley, International Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: This final rule corrects editorial errors and amends certain requirements in response to administrative appeals submitted by persons affected by the final rules published under Docket Numbers: PHMSA-2009-0126 (HM-215K) [78 FR 1101], PHMSA-2012-0027 (HM- 215L) [78 FR 987], PHMSA-2011-0138 (HM-218G) [78 FR 15303], and PHMSA- 2011-0142 (HM-219) [78 FR 14702.] I. Background A. HM-215K and HM-215L B. HM-218G C. HM-219 II. Administrative Appeals A. HM-215K B. HM-215L C. HM-219 III. Section-by-Section Review of Changes IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Orders 12866 and 13563 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. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis I. Background A. HM-215K and HM-215L On January 7, 2013, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published final rules under Docket Numbers PHMSA-2009-0126 (HM-215K) [78 FR 1101] and PHMSA-2012-0027 (HM-215L) [78 FR 987] 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 were necessary to harmonize the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) with recent changes made to the International Maritime Dangerous Goods Code (IMDG), the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), and the United Nations Recommendations on the Transport of Dangerous Goods--Model Regulations (UN Model Regulations). This final rule responds to four appeals and certain comments concerning amendments in the January 7, 2013 final rules. This rulemaking also corrects various errors made during the development of the rule and the printing process. Because the amendments adopted herein impose no new regulatory burden on any person, these amendments are being made effective without the usual 30- day delay following publication. In addition, because these amendments do not impose new requirements, notice and public comment procedures are unnecessary. B. HM-218G On April 26, 2012, PHMSA published an NPRM under Docket PHMSA 2011- 0138 [77 FR 24885] (HM-218G) that proposed amendments to update and clarify existing requirements of the HMR. The NPRM and the March 11, 2013 final rule are part of the Department of Transportation's (DOT) Retrospective Regulatory Review (RRR) designed to identify ways to improve the HMR. The NPRM proposed amendments to update and clarify existing requirements by incorporating changes into the HMR based on PHMSA initiatives. We identified the proposed amendments through an extensive review of the HMR and letters of interpretation that we had previously issued. In addition, the NPRM proposed to incorporate a special permit with a longstanding history of safety into the HMR, and included a response to a petition for rulemaking. This rulemaking makes editorial changes to correct errors made during the development of the HM-218G rule. C. HM-219 On May 24, 2012, PHMSA published an NPRM under Docket PHMSA 2011- 0142 [77 FR 30976] (HM-219). The NPRM and the March 7, 2013 final rule are part of the DOT's RRR designed to identify ways to improve the HMR. 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)). Under PHMSA's rulemaking procedures, you can request a change to the HMR. 49 CFR 106.95 permits you to ask PHMSA to add, amend, or delete a regulation by filing a petition for rulemaking containing adequate support for the requested action. In the NPRM, we responded to eight petitions for rulemaking submitted to us by various stakeholders. We proposed to amend the HMR to update, clarify, or provide relief from miscellaneous regulatory requirements at the request of the regulated community. This rulemaking responds to administrative appeals and makes editorial corrections. II. Administrative Appeals A. HM-215K In response to the January 7, 2013 final rule, HMT Associates, L.L.C. (HMT) submitted an administrative appeal as follows: 1. Revised Sec. 173.167 and Reference Therein to Sec. 173.27(f)(2) In the January 7, 2013 final rule, PHMSA revised section 173.167 for consistency with the ICAO TI. Specifically, the amendments were intended to mirror the stand-alone closure requirements and other provisions prescribed in Packing [[Page 65455]] Instruction Y963 of the ICAO TI applicable to consumer commodities prepared and intended for transportation by aircraft. In order to accomplish this, packages of consumer commodities prepared under the provisions of Sec. 173.167 required exclusion from the provisions of Subpart B of Part 173 (to include Sec. 173.27). PHMSA Response: In its administrative appeal, HMT correctly points out that the revisions to Sec. 173.167 in the January 7, 2013 final rule inadvertently provided the opposite effect by excepting such packages from the requirements of Subpart B of Part 173 except for Sec. 173.27(f)(2) (emphasis added). Therefore, a correction is necessary and warranted because Sec. 173.27(f)(2)(iv) requires a secondary means of closure for combination packages of liquid limited quantity material. Thus, we are granting HMT's administrative appeal and revise Sec. Sec. 173.24(i) and 173.167 accordingly for consumer commodities described under ID8000. 2. Export Shipments of Consumer Commodities (ID8000) As previously stated, in the January 7, 2013 final rule, Sec. 173.167 was revised for consistency with the consumer commodity (ID8000) provisions under Packing Instruction Y963 of the ICAO TI. As a result, unintended consequences were forced upon U.S. exporters of such articles and substances. For example, in its administrative appeal, HMT points out that an exporter must comply with: Section 171.22(g)(5) when using international standards to prepare shipments; Section 171.22(g)(5) prescribes compliance with the general packaging requirements in Sec. Sec. 173.24 and 173.24(a); Section 173.24(i) prescribes compliance with Sec. 173.27; and Section 173.27 requires a secondary means of closure on inner packagings of combination packages containing liquids. Such a requirement is inconsistent with Packing Instruction Y963 of the ICAO TI. PHMSA Response: We agree with HMT. In this final rule, we are granting its administrative appeal by revising Sec. Sec. 173.24(i) and 173.167. Consequently, revising Sec. 171.22(g)(5) is not necessary. B. HM-215L In response to the January 7, 2013 final rule, administrative appeals were submitted by the following companies and organizations: Dangerous Goods Advisory Council, Inc. (DGAC). Kilofarad International. Sporting Arms & Ammunition Manufacturer's Institute (SAAMI). These administrative appeals are discussed in detail below. 1. Lithium Cell and Battery Design Tests PHMSA received one administrative appeal from DGAC related to our adoption of Amendment 1 to the 5th revised edition of the UN Manual of Tests and Criteria. Specifically, DGAC is concerned that we did not provide in Sec. 173.185(a)(1) for the continued manufacture of lithium cells and batteries of a type tested in accordance with the 5th revised edition of the UN Manual of Tests and Criteria. The DGAC appeal says that this action would seem to require that all cells and batteries first transported after January 1, 2006, will have to be of a type tested in conformance with the newly incorporated edition of the UN Manual of Tests and Criteria. DGAC recommends that PHMSA clarify that, irrespective of the January 1, 2006 date in Sec. 173.185(a)(1), newly manufactured cells and batteries of a type successfully tested to the UN Manual of Tests and Criteria, 3rd revised edition, Amendment 1, or a later edition, may be transported without the need for the cell or battery type to be retested and that cells and batteries already distributed and tested to a previous edition of the UN Manual of Tests and Criteria may continue to be transported. PHMSA Response: DGAC correctly points out that we did not, consistent with previous practice, include a grandfather provision for cells and batteries of a type that meets the 5th revised edition. While this does not change our intent to continue to permit the continued manufacture and transportation of lithium cells and batteries of a type meeting the requirements of a previously authorized edition of the UN Manual of Tests and Criteria, we agree this may result in confusion and unnecessary retesting of previously validated designs. In this final rule, we are accepting DGAC's appeal. We are adopting its recommendation by adding a clarifying amendment to Sec. 173.185. This amendment will provide a straightforward means of permitting the continued manufacture and transport of lithium cell and battery designs that were tested in accordance with the version of the UN Manual of Tests and Criteria effective when the cell/battery was first manufactured. 2. Capacitors PHMSA received administrative appeals from DGAC and Kilofarad International relating to Sec. 173.176. This section was added in the January 7, 2013 final rule (HM-215L) and prescribes the requirements for capacitors. DGAC and Kilofarad International contend that Sec. 173.176 does not align with the ICAO TI, in that an exception for short circuit protection for a capacitor, or a capacitor in a module with an energy storage capacity less than or equal to 10 Wh, provided in special provision of A186 of the ICAO TI, is not provided in Sec. 173.176. PHMSA Response: Upon review, we agree and grant the appeals of DGAC and Kilofarad International as they pertain to Sec. 173.176. In this final rule, we are correcting this oversight by revising paragraphs (a)(2)(i) and (a)(2)(ii) of Sec. 173.176 to maintain consistency with the ICAO TI. A detailed discussion of this change is included in the Section-by- Section Review for Sec. 173.176. 3. Class 1 Appeal (Various) PHMSA received an administrative appeal from SAAMI regarding various amendments in HM-215L made to requirements for transporting certain Class 1 (explosive) materials. The SAAMI appeal consists of eight separate issues that are summarized and discussed below. SAAMI notes that in HM-215L the word ``None'' was removed from Column (6) label codes and replaced with ``1.4S'' for the entries for UN0012, ``Cartridges, small arms'' and UN0014, ``Cartridges, small arms, blank'' in the Hazardous Materials Table (HMT). SAAMI notes that there was no discussion of this change in the preamble to the final rule and that the change was not proposed in the NPRM. SAAMI asks if these changes were inadvertent. We acknowledge that there were inadvertent changes, and therefore we are putting the word ``None'' back in Column (6) for these two entries. SAAMI states that for the HMT entry UN0323, ``Cartridges, power device'' the reference to Sec. 173.63 was removed from Column (8A) and replaced with the word ``None.'' SAAMI requests that PHMSA reinsert the reference to Sec. 173.63 in Column (8A), as the removal of this reference breaks the connection to the ORM-D provisions for this table entry. We agree, and we will reinsert the reference. In HM-215L, several changes were made to the ``Cartridges, small arms'' and ``Cartridges, power device'' HMT entries to ensure these articles would [[Page 65456]] not be offered as ORM-D-AIR shipments. These HMT entries had Column (9B) quantity limitations for cargo aircraft revised from ``30 kg'' to ``Forbidden'' and a new Special Provision 222 was assigned, which states that shipments offered for transport by aircraft may not be reclassed as ORM-D. SAAMI notes in its appeal that these changes were not applied consistently to all ORM-D entries in the HMT, and requests we make similar changes to the ORM-D ``Consumer commodity'' HMT entry for consistency. We agree, and we are amending the HMT entry for ``Consumer commodity'' by adding Special Provision 222 to Column (7) and replacing ``30 kg'' with ``Forbidden'' in Column (9B). SAAMI requests that the word ``None'' should be deleted and left blank in Column (4) for the ORM-D ``Cartridges, power device'' entry to be consistent with the ORM-D entries for ``Cartridges, small arms'' and ``Consumer commodity''. We agree and we will delete the word ``None'' and leave the column blank for this entry. SAAMI notes that the packing group entries in Column (5) for UN0501 and UN0509 in the HMT are blank, but for consistency with the other Class 1 (explosive) entries these should be changed to ``II''. We agree, and we are granting SAAMI's appeal on this issue. The SAAMI appeal asks that we clarify section 173.63(b) to ensure the terms ``Cartridges, power device (used to project fastening devices) and ``Cartridges, power device,'' are appropriately identified within the section. We agree that some clarifying amendments are needed to Sec. 173.63 to ensure proper shipment of ``Cartridges, power device'' and ``Cartridges, power device (used to project fastening devices).'' SAAMI requests that clarifying text be added to indicate that packages properly prepared in accordance with the requirements of Sec. 173.63(b) receive relief from the loading limits in Sec. 175.75. It was never our intent to subject these shipments to these requirements when they have historically received relief from the accessibility requirements of Sec. 175.75. A shipment of UN0012, UN0014, or UN0055 properly packaged and marked in accordance with Sec. 173.63(b), is excepted from the requirements of Sec. 175.75(c) and (e)(1) if it is declared on air transport shipping papers as a limited quantity or not. We agree, and we are granting SAAMI's appeal on this issue by amending the list of materials that are excepted from the inaccessible loading limits in Sec. 175.75. SAAMI contends that the following language, added to Sec. 173.63 in the January 7, 2013 final rule (HM-215L), constitutes a new requirement for limited quantities of small arms ammunition to be marked with the proper shipping when transported by air that was not required by the final rule published on January 19, 2011 (76 FR 3308, HM-215K): In addition, packages containing such articles offered for transportation by aircraft must be marked with the proper shipping name as prescribed in the Sec. 172.101 Hazardous Materials Table of this subchapter. We disagree. The addition of the above language in the January 7, 2013 final rule (HM-215L) clarified that for transportation by air, these articles are required to be marked with the proper shipping name. This clarification did not impose a new or additional marking requirement. The requirement for packages containing these articles to be marked with the proper shipping name, when transported by air, was included in the January 19, 2011 (76 FR 3308, HM-215K) final rule, which provided in Sec. 173.63, ``Packages containing such articles must be marked as prescribed in Sec. 172.315.'' Section 172.315(a) further provides, ``Except for transportation by aircraft or as otherwise provided in this subchapter, a package containing a limited quantity of hazardous material is not required to be marked with the proper shipping name and identification (ID) number when marked in accordance with the white square-on-point limited quantity marking * * *'' It is clear that under the final rule published on January 19, 2011 (76 FR 3308, HM-215K), packages containing these articles were not excepted from the requirement to be marked with the proper shipping name when transported by air. In addition, this requirement is consistent with the ICAO TI that also requires packages containing these articles to be marked with the proper shipping name. Accordingly, we are denying SAAMI's appeal as it relates to this issue. C. HM-219 In response to the March 7, 2013 final rule, administrative appeals were submitted by the following companies and organizations: DGAC. SAAMI. Reusable Industrial Packing Association (RIPA). 1. Smokeless Powder, Division 1.4C (P-1559) Section 173.171 of the HMR allows smokeless powder for small arms that has been classed as Division 1.3C (Explosive) to be reclassed for domestic transportation as a Division 4.1 (Flammable Solid) material for transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to certain conditions. In a final rule published on January 14, 2009 under Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA- 2008-0005 (HM-215J), we added a new description to the HMT for UN0509, ``Powder, smokeless, Division 1.4C.'' However, the rulemaking did not extend the exception provided for Division 1.3C in Sec. 173.171 to Division 1.4C materials. SAAMI, in a petition (P-1559), requested that we amend Sec. 173.171 to allow Division 1.4C smokeless powder to be reclassed as a Division 4.1 material. SAAMI sought, with proper examination and approval, to allow a Division 1.4C material which, by definition (see Sec. 173.50), poses the lesser safety risk when compared with Division 1.3 explosives, to be reclassed as a Division 4.1 material. We included SAAMI's proposal, with some modifications, in the HM- 219 NPRM. The petition asked that we amend Sec. 173.171(a) by adding the text ``and 1.4C'' after the text ``1.3.'' In the HM-219 NPRM, we revised Sec. 173.171 to address Division 1.4C explosives and added a new separate paragraph for Division 1.4C explosives to ensure that the allowable net mass in the combination packagings did not exceed the net mass of the material that had been examined and approved. In addition, we proposed to revise Special Provision 16 in Sec. 172.102 to reflect the addition of Division 1.4C explosives. We received a comment to the NPRM from SAAMI stating that they: [H]ave studied this proposed change, and find that the sole effect is to allow a flammable solid which emanated from a Division 1.4 classification to exceed the current eight pound limit per inner package. Unless a need for this change is substantiated, we see no reason why the flammable solid classification limit for inner packages should be amended. Furthermore this would be unenforceable in the field. We considered this and the other comments to the NPRM, and published a final rule on March 7, 2013, under Docket Number PHMSA- 2011-0142 (HM-219). With regard to the amendments adopted in the final rule for smokeless powder for small arms we modified the amendments proposed in the NPRM as follows: Special Provision 16 of Sec. 172.102 was revised to read: ``This description applies to smokeless powder and other propellant powders that are used as powder for small arms and have been [[Page 65457]] classed as Division 1.3C and 1.4C and reclassed to Division 4.1 in accordance with Sec. 173.56 and Sec. 173.58 of this subchapter.'' The introductory paragraph of Sec. 173.171 was revised to read: ``Powders that have been classed in Division 1.3 or Division 1.4C may be reclassed in Division 4.1, for domestic transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to the following conditions.'' Section 173.171(a) was revised to read: ``Powders that have been approved as Division 1.3C or Division 1.4C may be reclassed to Division 4.1 in accordance with Sec. Sec. 173.56 and 173.58 of this part.'' Section 173.171(c) was revised to read: ``Only combination packagings with inner packagings not exceeding 3.6 kg (8 pounds) net mass and outer packaging of UN 4G fiberboard boxes meeting the Packing Group I standards are authorized. Inner packagings must be arranged and protected so as to prevent simultaneous ignition of the contents. The complete package must be of the same type that has been examined as required in Sec. 173.56 of this part.'' Section 173.171(d) was revised to read: ``The net weight of smokeless powder in any one box (one package) must not exceed 7.3 kg (16 pounds).'' PHMSA Response: On March 17, 2013, SAAMI submitted an appeal to the regulatory changes adopted in the HM-219 final rule with respect to smokeless powder. SAAMI requested that we remove ``all changes in the final rule which were not in the proposed rule, except those changes which deleted extraneous text from the proposed rule in response to SAAMI's comments.'' SAAMI also noted in its appeal that HM-219 inadvertently showed ``Forbidden'' in Column (9B) in conjunction with the listing in the HMT for UN0509, ``Smokeless powder, Division 1.4C.'' SAAMI appealed the wording in the HM-219 final rule of Special Provision 16. It indicated that it should read as it did in the NPRM, which was: ``[t]his description applies to smokeless powder and other solid propellants that are used as powder for small arms and have been classed as Division 1.3, 1.4 and 4.1 in accordance with Sec. 173.56 of this subchapter.'' We revised Special Provision 16 in the final rule because it was our intent to clearly indicate that only smokeless powder or propellant in powder form may qualify for reclassification as Division 4.1, and ensure that powders that have hazard properties different from ``propellants'' could not be reclassified into Division 4.1. SAAMI indicated that the introductory text in Sec. 173.171 should read as follows: Smokeless powder for small arms which has been classed in Division 1.3 or Division 1.4 may be reclassed in Division 4.1, for domestic transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to the following conditions: As with Special Provision 16, by changing the terminology in the final rule from ``solid propellants'' to ``propellant powders'' it was our intent to clearly indicate that only smokeless powder or propellant in powder form may qualify for reclassification as Division 4.1, and we wanted to ensure that powders that have hazard properties different from ``propellants'' could not be reclassified into Division 4.1. In the HM-219 final rule, we had revised the language in Sec. 173.171(a) to read: ``Powders that have been approved as Division 1.3C or Division 1.4C may be reclassed to Division 4.1 in accordance with Sec. Sec. 173.56 and 173.58 of this part.'' SAAMI indicated that Sec. 173.171(a) should read: (a) The powder must be examined and approved for a Division 1.3 or Division 1.4 and Division 4.1 classification in accordance with Sec. Sec. 173.56 and 173.58 of this part. As indicated in the HM-219 final rule, our intent with the revision to Sec. Sec. 173.171(c) and 173.171(d) was to ensure that the allowable net mass did not exceed the net mass of the material that had been examined and approved. The consequences of the revision detailed in SAAMI's appeal were unintentional. SAAMI indicated that the amendments to Sec. Sec. 173.171(c) and 173.171(d) should be retracted. They state: The deletion of text in paragraph (d) ignores [that paragraph (d) authorizes the intermixing of different inner packaging of tested and approved combination packagings with no further testing provided certain conditions are met and that several packages meeting the condition set forth in Sec. 173.171(d) may be overpacked together if the 100 pound net mass limitation is not exceeded] and prohibits the ability to mix brands and sizes of powder without further EX approval or performance oriented packaging (POP) testing. In this response to SAAMI's appeal, we are revising the listing in the HMT for UN0509, ``Smokeless powder, Division 1.4C'' in Column (9B) to read ``75 kg'' and revising the vessel stowage codes in Columns (10A) and (10B) to show ``2'' and ``25,'' respectively. These were unintentional typographical errors. This was not the intention of the HM-219 rulemaking and we are correcting those errors in this final rule. We are revising special provision 16 to read as it did in the HM- 219 NPRM, and the introductory language in Sec. 173.171 to read: ``Smokeless powder for small arms which has been classed in Division 1.3 or Division 1.4 may be reclassed in Division 4.1, for domestic transportation by motor vehicle, rail car, vessel, or cargo-only aircraft, subject to the following conditions.'' We are also reestablishing Sec. Sec. 173.171(c) and 173.171(d) to read as they did before the amendments of HM-219 were adopted. These amendments were made in the interest of clarification. As the revisions to the wording to Sec. 173.171(a) in HM-219 were designed to provide relief for shippers of smokeless powder, in that they would not be required to retest powders already classed as Division 1.3C or 1.4C, we are retaining the wording as shown in the HM- 219 final rule for Sec. 173.171(a). 2. Clarification of Alcohol and Gasoline Mixtures (P-1522) In HM-219, PHMSA responded to Shell Chemicals' petition (P-1522) to remove from the HMT the listing for ``Gasohol, with not more than 10% ethanol.'' Shell Chemicals 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 requested 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 No. PHMSA-05-21812 (HM-218D), and were intended to help emergency responders identify and respond to the hazards unique to fuel blends with high ethanol concentrations. Shell Chemicals also requested that we remove special provision 172 from Column (7) in association with all packing groups for the Proper Shipping Name ``Alcohols, n.o.s.'' Special provision 172 states that ``this entry includes alcohol mixtures containing up to 5% petroleum products.'' In its petition, Shell Chemicals 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, [[Page 65458]] 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 Chemicals 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 HM-219 NPRM, we proposed removal of the entry ``Gasohol'' from the HMT and 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 its comments to the HM-219 NPRM, agreed with Shell Chemicals and stated 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 stated that the full range of gasoline and ethanol concentrations is covered by UN1203 and UN3475, making special provision 172 unnecessary. We agree that the full range of gasoline and ethanol concentrations can be covered by UN1203 and UN3475. However, when the regulations were changed to incorporate UN3475, and the number of shipments and types of gasoline/ethanol blends increased in 2008, stakeholders (including industry, emergency responders, and local, state and Federal government entities) made it apparent that there was a need for that special provision. Special provision 172 was established in response to concerns expressed by stakeholders for the safety of emergency responders. The Emergency Response Guidebook (ERG) directs emergency responders to Guide 128 for ID number 1993, and recommends ``regular foam'' to fight large fires. Guide 127 for ID number 1987 recommends ``alcohol-resistant foam.'' Special provision 172, as provided in the entries for ``Denatured Alcohol, NA 1987'' and ``Alcohols, n.o.s., UN 1987,'' allows solutions of alcohol and petroleum products to be described as either ``Denatured Alcohol'' or ``Alcohols, n.o.s.,'' provided the solution contains no more than 5% petroleum products, and alerts emergency responders as to the type of foam needed to extinguish a fire. For these reasons, in the HM-219 final rule we amended the HMT by removing the listing for ``Gasohol, gasoline mixed with ethyl alcohol, with not more than 10% alcohol,'' we retained Special provision 172, and we revised 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. PHMSA Response: On April 3, 2013, DGAC appealed the retention of special provision 172 and requested that we provide a one-year effective date for the removal of the listing in the HMT for ``Gasohol.'' DGAC reasoned that special provision 172 should be removed because Canada no longer recognizes it, and that special provision 330 in the UN Model Regulations, which closely resembled special provision 172, was removed in the 14th edition. With respect to extending the effective date to one year from publication of final rule HM-219 for the removal of the listing for ``Gasohol'' in the HMT, this is already authorized in Sec. 172.101(l). By operation of law, packages filled prior to the effective date of the amendment may be shipped; and stocks of preprinted shipping papers and package markings to be used, in the manner previously authorized, until depleted or for a one-year period, subsequent to the effective date of the amendment, whichever is less. As stakeholders already have one year to diminish their supplies, it is not necessary for us to extend the effective date for the removal of Gasohol in this final rule. Regarding special provision 172, it is important to note that we did not propose its removal in the NPRM. While DGAC commented to our intent to retain special provision 172 citing reasons why it should be removed, we disagreed with DGAC in the HM-219 final rule. Although special provision 330 was removed from the UN Model Regulations, we believe that domestically it provides emergency responders with accurate and important response guidance. Furthermore, because we did not propose the removal of special provision 172 in the HM-219 NPRM, we cannot remove it in this final rule without providing public notice and the opportunity for all interested stakeholders to comment. For these reasons we are retaining special provision 172 in this final rule. 3. Certification Packaging Marking and Recordkeeping Requirements (P- 1479) PHMSA responded to a petition for rulemaking by gh Package & Product, Testing and Consulting, Inc. (PPTC), (P-1479), which requested that we 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. PPTC also requested we amend the HMR to provide that packaging test reports be 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, PPTC stated that its third-party laboratory performed design qualification testing of a manufacturer's packaging at least three times, and the packaging failed each time. Eleven years after PPTC had tested the packaging, it learned that the packaging that had failed in its laboratory was still being manufactured and that PPTC's third-party laboratory symbol was being used on the packaging as the packaging tester's mark without permission. PPTC is of the opinion that the language in Sec. 178.3 is unclear because it enables anyone to use the manufacturer's mark, which could expose the original third-party test laboratory to potential liability for defective packaging and other packaging violations. Section 178.3 provides the person who is certifying compliance of a packaging with 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. PPTC 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, [[Page 65459]] that entity has no control over the packaging being retested by someone else. In the HM-219 NPRM, we proposed to revise Sec. 178.3(a)(2) to clarify that the required marking must identify the person who is certifying that the packaging has passed either the periodic retest or the design qualification test. We further proposed that, unless authorized in writing by the holder of the symbol, symbols must represent either the packaging manufacturer or the approval agency responsible for providing the most recent certification for the packaging through design certification testing or periodic retesting, as applicable. DGAC disagreed 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 stated that ``periodic retesting does not necessarily confirm compliance with all requirements applicable to a UN design type (e.g., requirements in Sec. Sec. 178.504-523).'' We are aware of the differences between design qualification and periodic retesting, and understand that under the UN Model Regulations the manufacturer's marking is intended to signify the entity responsible for the design qualification test. Our intent is to ensure that under the HMR, the marking on the packaging is traceable to the entity responsible for certifying the packaging--whether that certification is signifying that the packaging passed the design qualification test or the periodic retest. Currently, the HMR differ from the UN Model Regulations with respect to the testing of packagings because the UN Model Regulations only require a design test and do not require periodic retesting of packagings. For this reason, the UN Model Regulations do not have to account for the potential of unauthorized use of a third-party laboratory's symbol, nor do they have to distinguish what the mark signifies. In Chapter 6.1, paragraph 6.1.3 of the UN Recommendations, with respect to marking, Note 1 states that: ``The marking indicates that the packaging which bears it corresponds to a successfully tested design type and that it complies with the requirements of this Chapter . . .''; whereas the HMR in Sec. 178.503(a)(8) states: ``A packaging conforming to a UN standard must be marked as follows: [with] the name and address or symbol of the manufacturer or the approval agency certifying compliance with subpart L and subpart M of this part.'' Subpart M includes both design type and periodic retesting. Further, DGAC states 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. It is our intent that the certification mark indicated on a packaging is that of the person manufacturing the packaging, or testing the packaging, on behalf of the manufacturer. We anticipated the concerns raised by DGAC and as such, provided an allowance for the use of the mark of the person who performed th","truncated":true,"body_characters":206470}