[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Rules and Regulations]
[Pages 14702-14716]
[FR Doc No: 2013-04197]

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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.

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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.

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<PHONE_NUMBER> 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

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):

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               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..
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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

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

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.
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    \1\ See http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Press%20Releases/2011%20Hazmat%20Penalty%20Action%20Report.pdf,
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    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

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:
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    \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
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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.

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 be incorporated in the HMR,
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.
    We agree with the petitioner and the commenters that the DCM should
be allowed to be in locations designated by the master of the vessel
besides ``on or near the bridge'' while the vessel is docked in a
United States port while cargo unloading, loading, or handling
operations are underway and the bridge is unmanned. The location of the
DCM chosen by the master of the vessel must be readily accessible to
emergency personnel in an emergency and enforcement personnel for
inspection purposes. Allowing alternate locations of the DCM while the
vessel is docked provides greater flexibility to the master of the
vessel without diminishing the DCM requirements. For this reason, in
this final rule we are incorporating DOT-SP 9735 into Sec.  176.30 of
the HMR as proposed in the May 24, 2012 NPRM.
Smokeless Powder, Division 1.4C (P-1559)
    The Sporting Arms and Ammunition Manufacturers Institute, Inc.
(SAAMI), in a petition (P-1559), requested that PHMSA amend Sec.
173.171 to allow Division 1.4C smokeless powder to be reclassed as a
Division 4.1 material. Currently Sec.  173.171 allows smokeless powder
for small arms that has been classed in 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 Dockets HM-215J
and HM-224D (74 FR 2199), PHMSA added a new description to the HMT for
Powder, smokeless, Division 1.4C; however, the rule did not extend the
allowance provided for Division 1.3C to the Division 1.4C materials.
    The petition seeks, 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 believe that this petition has merit, as Division 1.4 explosives
pose less of a hazard in transportation than Division 1.3 explosives,
which are already allowed to move as Division 4.1 materials. In the
NPRM we deviated from the petition by proposing a different net mass
allowance for the inner packaging for Division 1.4 materials than what
is currently allowed for Division 1.3 materials. The petition asked
that we amend Sec.  173.171(c) to include Division 1.4 materials in the
exception allowed, which stipulates that materials must be in
combination packagings with inner packaging not exceeding 3.6 kg (8
pounds). Instead we proposed to add a paragraph (d) that stipulates
that Division 1.4 materials must be in combination packagings with
inner packagings not exceeding the net mass that have been examined and
approved as required in Sec.  173.56.
    PHMSA received a comment 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.

    Our intent with the modification to the SAAMI petition was to
ensure that the allowable net mass did not exceed the net mass of the
material that had been examined and approved. Instead of making the
proposed modification, and adding a new paragraph (d), in this final
rule, we are revising Special Provision 16 and Sec.  173.171 for
clarification purposes. Specifically, we are revising the following:
     The wording of Special Provision 16 to read: ``This
description applies to smokeless powder and other propellant powders
that are used as powder for small arms that have been classed as
Division 1.3C or 1.4C and reclassed to Division 4.1 in accordance with
Sec.  173.56 and Sec.  173.58 of this subchapter.'' The current wording
of Special Provision 16 uses the term ``solid'' and, consequently,
narrows the application to only smokeless powder or propellant in
powder form to be qualified for reclassification as a Division 4.1
material. Also, by using the term ``propellant powders'' we are
ensuring that powders that have hazard properties different from
``propellants'' are not reclassified as a Division 4.1 material.
     The introductory paragraph of Sec.  173.171 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) 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,'' as
we see no need to retest powders already classed as 1.3C or 1.4C to be
tested again.
     Current paragraph (c) 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.''
     Current paragraph (d) of Sec.  173.171 to read: ``The net
weight of smokeless powder in any one box (one package) must not exceed
7.3 kg (16 pounds).''
    The changes in this final rule to Special Provision 16 and Sec.
173.171 are non-substantive and clarify existing language.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary
of Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. This final rule amends the recordkeeping and
packaging marking requirements for third-party labs and manufacturers
to assure the traceability of packaging; removes the listing for
``Gasohol, gasoline mixed with ethyl alcohol, with not more than 10%
alcohol, NA1203''; provides a limited quantity exception for Division
4.1, Self-reactive solids and Self-reactive liquids, Types B through F;
allows smokeless powder classified as a Division 1.4C material to be
reclassified as a Division 4.1 material to relax the regulatory
requirements for these materials without compromising safety; and
provides 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.

B. Executive Order 12866, Executive Order 13563, Executive Order 13610,
and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action
under section 3(f) Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget (OMB). The final rule
is not considered a significant rule under the Regulatory Policies and
Procedures order issued by the U.S. Department of Transportation (44 FR
11034).
    In this final rule, we amend miscellaneous provisions in the HMR to
clarify the provisions and to relax overly burdensome requirements.
PHMSA anticipates the changes contained in this rule will have economic
benefits to the regulated community. This final rule is designed to
increase the clarity of the HMR, thereby increasing voluntary
compliance while reducing compliance costs.
    Executive Order 13610 (Identifying and Reducing Regulatory Burdens)
reaffirming the goals of Executive Order 13563 (Improving Regulation
and Regulatory Review) issued January 18, 2011, and Executive Order
12866 (Regulatory Planning and Review) issued September 30, 1993.
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.
    Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. In addition, Executive Order 13563
specifically requires agencies to: (1) Involve the public in the
regulatory process; (2) promote simplification and harmonization
through interagency coordination; (3) identify and consider regulatory
approaches that reduce burden and maintain flexibility; (4) ensure the
objectivity of any scientific or technological information used to
support regulatory action; consider how to best promote retrospective
analysis to modify, streamline, expand, or repeal existing rules that
are outmoded, ineffective, insufficient, or excessively burdensome.
    In this final rule, PHMSA has involved the public in the regulatory
process in a variety of ways. Specifically, in this rulemaking PHMSA is
incorporating regulatory changes in response to five petitions that
have been submitted by the public in accordance with the Administrative
Procedure Act and PHMSA's rulemaking procedure regulations, in 49 CFR
106.95. Furthermore, the public was given the opportunity to comment on
the proposed changes during the open comment period. Key issues covered
by the petitions include requests from the public to revise the
packaging requirements, clarify the HMR pertaining to alcohol and
gasoline mixtures, and allow additional exceptions for the
classification of smokeless powder used for small arms ammunition.

C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
final rule would preempt state, local and Indian tribe requirements but
does not propose any regulation that has substantial direct effects on
the states, the relationship between the national government and the
states, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    The federal hazardous material transportation law, 49 U.S.C.
5125(b)(1), contains an express preemption provision (49 U.S.C.
5125(b)) preempting state, local, and Indian tribe requirements on
certain covered subjects. Covered subjects are:
    (i) The designation, description, and classification of hazardous
materials;
    (ii) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
    (iii) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
content, and placement of those documents;
    (iv) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
    (v) The design, manufacture, fabrication, marking, maintenance,
reconditioning, repair, or testing of a packaging or container which is
represented, marked, certified, or sold as qualified for use in the
transport of hazardous materials.
    This final rule concerns the classification, packaging, marking,
labeling, and handling of hazardous materials, among other covered
subjects. This final rule would preempt any state, local, or Indian
tribe requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' (see 49 CFR 107.202(d) as
the Federal requirements.)
    Federal hazardous materials transportation law provides at 49
U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of
the covered subjects, PHMSA must determine and publish in the Federal
Register the effective date of Federal preemption. That effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of

issuance. PHMSA proposes the effective date of federal preemption be 90
days from publication of this final rule in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs on Indian tribal governments, the funding and
consultation requirements of Executive Order 13175 do not apply, and a
tribal summary impact statement is not required.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines the rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule amends miscellaneous provisions in the HMR to clarify
provisions based on petitions for rulemaking. While maintaining safety,
it relaxes certain requirements that are overly burdensome and provides
clarity where requested by the regulated community. The changes are
generally intended to provide relief to shippers, carriers, and
packaging manufacturers, including small entities.
    Consideration of alternative proposals for small businesses. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where it is
possible to do so and still meet the objectives of applicable
regulatory statutes. In the case of hazardous materials transportation,
it is not possible to establish exceptions or differing standards and
still accomplish our safety objectives.
    The changes shown herein are generally intended to provide relief
to shippers, carriers, and packaging manufactures and testers,
including small entities. The benefits are modest and, therefore, this
final rule will not have a significant economic impact on a substantial
number of small entities, though it will provide economic relief to
some small businesses. For example, limiting the document retention
period for persons conducting initial design testing of packagings to
five years beyond the next required periodic retest, should reduce the
paperwork burden for some small businesses.
    This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA has an approved information collections under OMB Control
Numbers 2137-0018 ``Inspection and Testing of Portable Tanks and
Intermediate Bulk Containers'', 2137-0051 ``Rulemaking, Special
Permits, and Preemption Requirements'', and 2137-0572 ``Testing
Requirements for Non-Bulk Packaging.'' This final rule may result in a
decrease in the annual burden and costs under this information
collection due to proposed changes to incorporate provisions contained
in certain widely used or longstanding special permits that have an
established safety record and a minimal decrease in this information
collection burden because of a reduction in the record retention period
for non-bulk packages, IBCs and large packagings. Under the Paperwork
Reduction Act of 1995, no person is required to respond to an
information collection unless it has been approved by OMB and displays
a valid OMB control number. Section 1320.8(d), title 5, Code of Federal
Regulations requires that PHMSA provide interested members of the
public and affected agencies an opportunity to comment on information
and recordkeeping requests.
    This final rule identifies a revised information collection request
that PHMSA will submit to OMB for approval based on the requirements in
this final rule. PHMSA has developed burden estimates to reflect
changes in this final rule. PHMSA estimates that the information
collection and recordkeeping burden of this final rule is as follows:
     OMB Control Nos. 2137-0018 (Inspection and Testing of
Portable Tanks and Intermediate Bulk Containers) and 2137-0572 (Testing
Requirements for Non-Bulk Packaging.) We anticipate a minimal decrease
in this information collection burden because this rule establishes a
finite record retention period. Specifically, 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 are revised to limit the
document retention period for persons conducting initial design testing
from an indefinite period to five years beyond the next required
periodic retest.
     Office of Management and Budget (OMB) Control Number 2137-
0051; Rulemaking and Special Permit Petitions: We anticipate a minimal
decrease in this information collection burden due to the elimination
of the application process for DOT-SP 9735. Specifically, the holder of
DOT-SP 9735 is no longer required to re-apply for a Special Permit to
place the DCM in locations designated by the master of the vessel
besides ``on or near the bridge'' while the vessel is docked in a
United States port while cargo unloading, loading, or handling
operations are underway and the bridge is unmanned.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.

H. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141,300,000 or more to either state, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires federal agencies to analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
require federal agencies to conduct an environmental review
considering: (1) The need for the proposed action; (2) alternatives to
the proposed action; (3) probable environmental impacts of the proposed
action and alternatives; and (4) the agencies and persons consulted
during the consideration process.
Description of Action
    Docket No. PHMSA-2011-0142 (HM-219), Final Rule

    Transportation of hazardous materials in commerce is subject to
requirements in the HMR, issued under authority of Federal hazardous
materials transportation law, codified at 49 U.S.C. 5001 et seq. To
facilitate the safe and efficient transportation of hazardous materials
in international commerce, the HMR provide that both domestic and
international shipments of hazardous materials may be offered for
transportation and transported under provisions of the international
regulations.
Adopted Amendments to the HMR
    In this final rule, PHMSA is adopting amendments to:
     Revise Sec.  178.3 to 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. This change will ensure that the mark used is tied
to the entity that was issued the mark.
     Revise Sec. Sec.  178.601(l), 178.801(l), and 178.955(i)
to require 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 the duration of the certification
plus five years beyond the last certification, instead of the current
requirement that it be maintained until the packaging is no longer
made.
     Revise the HMT by removing the listing for ``Gasohol,
gasoline mixed with ethyl alcohol, with not more than 10% alcohol,
NA1203,'' and remove reference to gasohol in Sec. Sec.  172.336(c)(4)
and 172.336(c)(5). This change clarifies the HMR and harmonizes the HMR
with international recommendations.
     Revise Sec.  172.101 to refer to Sec.  173.151 to provide
the limited quantity exception for Division 4.1, Self-reactive solids
and Self-reactive liquids, Types B through F, consistent with
international regulations.
     Allow smokeless powder classified as a Division 1.4C
material to be reclassified 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 docked in a United States port to ensure that the DCM is
readily available to communicate the presence and nature of the
hazardous materials on board a vessel. This revision would provide
greater flexibility by allowing the document to be maintained in either
the vessel's cargo office or another location designated by the master
of the vessel.
Alternatives Considered
    Alternative (1): Do nothing.
    Our goal is to update, clarify and provide relief from certain
existing regulatory requirements to promote safer transportation
practices, eliminate unnecessary regulatory requirements, finalize
outstanding petitions for rulemaking, and facilitate international
commerce. We rejected the do-nothing alternative.
    Alternative (2): Go forward with the proposed amendments to the HMR
in the NPRM.
    This is the selected alternative.
Environmental Consequences
    Hazardous materials are substances that may pose a threat to public
safety or the environment during transportation because of their
physical, chemical, or nuclear properties. The hazardous material
regulatory system is a risk management system that is prevention
oriented and focused on identifying a safety hazard and reducing the
probability and quantity of a hazardous material release. Hazardous
materials are categorized by hazard analysis and experience into hazard
classes and packing groups. The regulations require each shipper to
classify a material in accordance with these hazard classes and packing
groups; the process of classifying a hazardous material is itself a
form of hazard analysis. Further, the regulations require the shipper
to communicate the material's hazards through use of the hazard class,
packing group, and proper shipping name on the shipping paper and the
use of labels on packages and placards on transport vehicles. Thus, the
shipping paper, labels, and placards communicate the most significant
findings of the shipper's hazard analysis. A hazardous material is
assigned to one of three packing groups based upon its degree of
hazard, from a high hazard, Packing Group I to a low hazard, Packing
Group III. The quality, damage resistance, and performance standards of
the packaging in each packing group are appropriate for the hazards of
the material transported.
    Under the HMR, hazardous materials are transported by aircraft,
vessel, rail, and highway. The potential for environmental damage or
contamination exists when packages of hazardous materials are involved
in accidents or en route incidents resulting from cargo shifts, valve
failures, packaging failures, loading, unloading, collisions, handling
problems, or deliberate sabotage. The release of hazardous materials
can cause the loss of ecological resources (e.g. wildlife habitats) and
the contamination of air, aquatic environments, and soil. Contamination
of soil can lead to the contamination of ground water. For the most
part, the adverse environmental impacts associated with releases of
most hazardous materials are short term impacts that can be reduced or
eliminated through prompt clean up and decontamination of the accident
scene.
    When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates the: (1) Risk of release and
resulting environmental impact; (2) risk to human safety, including any
risk to first responders; (3) longevity of the packaging; and (4) if
the proposed regulation would be carried out in a defined geographic
area, the resources, especially any sensitive areas, and how they could
be impacted by any proposed regulations. The adopted packaging changes
would establish greater accountability for certifying packagings,
reduce paperwork for the affected packaging testing agencies, and
potentially reduce packaging failures that result in hazardous
materials incidents. The amendments that harmonize the HMR with
international standards and recommendations are intended to enhance the
safety of international hazardous materials transportation through an
increased level of industry compliance, the smooth flow of hazardous
materials from their points of origin to their points of destination,
and effective emergency response in the event of a hazardous materials
incident. The revision regarding where the DCM is keep when a vessel is
in a U.S. port should help to expedite a response to an emergency and
reduce the environmental impact to a hazardous materials spill.
Conclusion
    PHMSA is making miscellaneous amendments to the HMR in response to
petitions for rulemaking. The amendments adopted in this final rule are
intended to update, clarify, or provide relief from certain existing
regulatory requirements to promote safer transportation practices;
eliminate unnecessary regulatory requirements; finalize outstanding
petitions for rulemaking; facilitate international commerce; and, in
general, make the

requirements easier to understand and follow.
    While the net environmental impact of this rule will be positive,
we believe there will be no significant environmental impacts
associated with this final rule.

J. 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.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

K. Executive Order 13609 International Trade Analysis

    Under E.O. 13609, agencies must consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
prohibits Federal agencies from establishing any standards or engaging
in related activities that create unnecessary obstacles to the foreign
commerce of the United States. For purposes of these requirements,
Federal agencies may participate in the establishment of international
standards, provided that the standards have a legitimate domestic
objective, such as providing for safety, and do not operate to exclude
imports that meet this objective. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards
in order to protect the safety of the American public, and we have
assessed the effects of the final rule to ensure that it does not cause
unnecessary obstacles to foreign trade. In this final rule, PHMSA is
revising the HMR to align with international standards by: removing
reference to ``gasohol''; providing a limited quantity exception for
Division 4.1, Self-reactive solids and Self-reactive liquids, Types B
through F; and allowing smokeless powder classified as a Division 1.4C
material to be reclassified as a Division 4.1 material. These
amendments are intended to enhance the safety of international
hazardous materials transportation through an increased level of
industry compliance, ensure the smooth flow of hazardous materials from
their points of origin to their points of destination, and facilitate
effective emergency response in the event of a hazardous materials
incident. Accordingly, this rulemaking is consistent with E.O. 13609
and PHMSA's obligations under the Trade Agreement Act, as amended.

List of Subjects

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Training, Packaging and
containers, Reporting and recordkeeping requirements.

49 CFR Part 176

    Hazardous materials transportation, Maritime carriers, Reporting
and recordkeeping requirements.

49 CFR Part 178

    Hazardous materials transportation, Incorporation by reference,
Motor vehicle safety, Packaging and containers, Reporting and
recordkeeping requirements.

    In consideration of the foregoing, we are amending 49 CFR Chapter I
as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS

0
1. The authority citation for Part 172 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 1.53.

0
2. In Sec.  172.101, The Hazardous Materials Table is amended by
removing and revising entries, in the appropriate alphabetical sequence
as follows.

Sec.  172.101  Purpose and use of hazardous materials table.

* * * * *

                                                                               172.101--Hazardous Materials Table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                (8) Packaging (Sec.           (9) Quantity          (10) Vessel
                                                                                Special              173.***)                 limitations            stowage
                                     Hazardous materials     Hazard       Identification              Label   provisions -----------------------------------------------------------------------
              Symbols                  descriptions and     class or         numbers           PG     codes     (Sec.                                   Passenger     Cargo
                                    proper shipping names   division                                           172.102)    Exceptions   Non-    Bulk    aircraft/    aircraft   Location   Other
                                                                                bulk               rail        only
(1)                                 (2)..................        (3)  (4)..................     (5)     (6)          (7)         (8A)    (8B)    (8C)         (9A)       (9B)      (10A)   (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                                * * * * * * *
                                    .....................   [REVISE]

                                                                                * * * * * * *
                                    Powder, smokeless....       1.4C  UN0509...............      II    1.4C                       (1)      62    None          (2)        (2)         06

                                                                                * * * * * * *
G.................................  Self-reactive liquid         4.1  UN3221...............      II     4.1           53          151     224    None          (2)        (2)          D  52, 53
                                     type B.

                                                                                * * * * * * *
G.................................  Self-reactive liquid         4.1  UN3223...............      II     4.1                       151     224    None          5 L       10 L          D  52, 53
                                     type C.

                                                                                * * * * * * *
G.................................  Self-reactive liquid         4.1  UN3225...............      II     4.1                       151     224    None          5 L       10 L          D  52, 53
                                     type D.

                                                                                * * * * * * *
G.................................  Self-reactive liquid         4.1  UN3227...............      II     4.1                       151     224    None         10 L       25 L          D  52, 53
                                     type E.

                                                                                * * * * * * *
G.................................  Self-reactive liquid         4.1  UN3229...............      II     4.1                       151     224    None         10 L       25 L          D  52, 53
                                     type F.

                                                                                * * * * * * *
G.................................  Self-reactive solid          4.1  UN3222...............      II     4.1           53          151     224    None        (\1\)      (\2\)          D  52, 53
                                     type B.

                                                                                * * * * * * *
G.................................  Self-reactive solid          4.1  UN3224...............      II     4.1                       151     224    None         5 kg      10 kg          D  52, 53
                                     type C.

                                                                                * * * * * * *
G.................................  Self-reactive solid          4.1  UN3226...............      II     4.1                       151     224    None         5 kg      10 kg          D  52, 53
                                     type D.

                                                                                * * * * * * *
G.................................  Self-reactive solid          4.1  UN3226...............      II     4.1                       151     224    None         5 kg      10 kg          D  52, 53
                                     type E.

                                                                                * * * * * * *
G.................................  Self-reactive solid          4.1  UN3230...............      II     4.1                       151     224    None        10 kg      25 kg          D  52, 53
                                     type F.

                                                                                * * * * * * *
                                    [REMOVE].............

                                                                                * * * * * * *
                                    Gasohol gasoline               3  NA1203...............      II       3     144, 177          150     202     242          5 L       60 L          E
                                     mixed with ethyl
                                     alcohol, with not
                                     more than 10%
                                     alcohol.

                                                                                * * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ None.
\2\ Forbidden.

* * * * *

0
3. In Sec.  172.102, in paragraph (c)(1), Special provision 16 is
revised to read as follows:

Sec.  172.102  Special provisions

* * * * *
    (c) * * *
    (1) * * *

Code/Special Provisions

* * * * *
    16 This description applies to smokeless powder and other
propellant powders that are used as powder for small arms and have been
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.
* * * * *

0
4. In Sec.  172.336, paragraph (c) is revised to read as follows:

Sec.  172.336  Identification numbers; special provisions.

* * * * *
    (c) Identification Numbers are not required:

------------------------------------------------------------------------
                                                    Then the alternative
         Packaging:                   When:          marking requirement
                                                             is:
------------------------------------------------------------------------
(1) On the ends of portable   They have more than   The identification
 tanks, cargo tanks, or tank   one compartment and   numbers on the
 cars.                         hazardous materials   sides of the tank
                               with different        are displayed in
                               identification        the same sequence
                               numbers are being     as the compartments
                               transported therein.  containing the
                                                     materials they
                                                     identify.
(2) On cargo tanks..........  They contain only     The tank is marked
                               gasoline.             ``Gasoline'' on
                                                     each side and rear
                                                     in letters no less
                                                     than 50 mm (2
                                                     inches) high, or is
                                                     placarded in
                                                     accordance with
                                                     Sec.   172.542(c).
(3) On cargo tanks..........  They contain only     The cargo tank is
                               fuel oil.             marked ``Fuel Oil''
                                                     on each side and
                                                     rear in letters no
                                                     less than 50 mm (2
                                                     inches) high, or is
                                                     placarded in
                                                     accordance with
                                                     Sec.   172.544(c).
(4) On nurse tanks..........  They meet the         N/A
                               provisions of Sec.
                                173.315(m) of this
                               subchapter.
(5) On cargo tanks,           They contain more     The identification
 including compartmented       than one petroleum    number for the
 cargo tanks, or tank cars.    distillate fuel.      liquid petroleum
                                                     distillate fuel
                                                     having the lowest
                                                     flash point is
                                                     displayed. If the
                                                     cargo tank also
                                                     contains gasoline
                                                     and alcohol fuel
                                                     blends consisting
                                                     of more than 10%
                                                     ethanol the
                                                     identification
                                                     number ``3475'' or
                                                     ``1987,'' as
                                                     appropriate, must
                                                     also be displayed.
------------------------------------------------------------------------

* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

0
5. The authority citation for Part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 1.53.

0
6. In Sec.  173.171, the introductory text and paragraphs (a), (c) and
(d) are revised to read as follows:

Sec.  173.171  Smokeless powder for small arms.

    Powders that have 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:
    (a) 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.
* * * * *
    (c) 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.
    (d) The net weight of smokeless powder in any one box (one package)
must not exceed 7.3 kg (16 pounds).
* * * * *

PART 176--CARRIAGE BY VESSEL

0
7. The authority citation for Part 176 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 1.53.

0
8. In Sec.  176.30, paragraph (a) introductory text is revised to read
as follows:

Sec.  176.30  Dangerous cargo manifest.

    (a) The carrier, its agents, and any person designated for this
purpose by the carrier or agents must prepare a dangerous cargo
manifest, list, or stowage plan. This document may not include a
material that is not subject to the requirements of the Hazardous
Material Regulations (49 CFR parts 171 through 180) or the
International Maritime Dangerous Goods Code (IMDG Code) (IBR, see Sec.
171.7 of this subchapter). This document must be kept on or near the
vessel's bridge, except when the vessel is docked in a United States
port. When the vessel is docked in a United States port, this document
may be kept in the vessel's cargo office or another location designated
by the master of the vessel provided that a sign is placed beside the
designated holder on or near the vessel's bridge indicating the
location of the dangerous cargo manifest, list, or stowage plan. This
document must always be in a location that is readily accessible to
emergency response and enforcement personnel. It must contain the
following information:
* * * * *

PART 178--SPECIFICATIONS FOR PACKAGINGS

0
9. The authority citation for Part 176 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 1.53.

0
10. In Sec.  178.3, paragraph (a)(2) is revised to read as follows:

Sec.  178.3  Marking of packaging.

    (a) * * *
    (2) Unless otherwise specified in this part, the name and address
or symbol of the packaging manufacturer or the person certifying
compliance with a UN standard. Symbols, if used, must be

registered with the Associate Administrator. 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. Duplicative
symbols are not authorized.
* * * * *

0
11. In Sec.  178.601, paragraph (l) is revised to read as follows:

Sec.  178.601  General requirements.

* * * * *
    (l) Record retention. Following each design qualification test and
each periodic retest on a packaging, a test report must be prepared.
The test report must be maintained as follows:
    (1) The test report must be maintained at each location where the
packaging is manufactured, certified, and a design qualification test
or periodic retest is conducted. The test report must be maintained as
follows:

----------------------------------------------------------------------------------------------------------------
              Responsible party                                             Duration
----------------------------------------------------------------------------------------------------------------
Person manufacturing the packaging...........  As long as manufactured and two years thereafter.
Person performing design testing.............  Until next required periodic retest is successfully performed, a
                                                new test report produced, and five years thereafter.
Person performing periodic retesting.........  Until next required periodic retest is successfully performed and
                                                a new test report produced.
----------------------------------------------------------------------------------------------------------------

     (2) The test report must be made available to a user of a
packaging or a representative of the Department upon request. The test
report, at a minimum, must contain the following information:
    (i) Name and address of test facility;
    (ii) Name and address of applicant (where appropriate);
    (iii) A unique test report identification;
    (iv) Date of the test report;
    (v) Manufacturer of the packaging;
    (vi) Description of the packaging design type (e.g. dimensions,
materials, closures, thickness, etc.), including methods of manufacture
(e.g. blow molding) and which may include drawing(s) and/or
photograph(s);
    (vii) Maximum capacity;
    (viii) Characteristics of test contents, e.g. viscosity and
relative density for liquids and particle size for solids;
    (ix) Test descriptions and results; and
    (x) Signed with the name and title of signatory.

0
12. In Sec.  178.801, paragraph (l) is revised to read as follows:

Sec.  178.801  General requirements.

* * * * *
    (l) Record retention. (1)(i) The person who certifies an IBC design
type must keep records of design qualification tests for each IBC
design type and for each periodic design requalification as specified
in this part. These records must be maintained at each location where
the IBC is manufactured and at each location where design qualification
and periodic design requalification testing is performed. The test
report must be maintained as follows:

----------------------------------------------------------------------------------------------------------------
              Responsible party                                             Duration
----------------------------------------------------------------------------------------------------------------
Person manufacturing the packaging...........  As long as manufactured and two years thereafter.
Person performing design testing.............  Until next required periodic retest is successfully performed, a
                                                new test report produced, and five years thereafter.
Person performing periodic retesting.........  Until next required periodic retest are successfully performed
                                                and a new test report produced.
----------------------------------------------------------------------------------------------------------------

     (ii) These records must include the following information: name
and address of test facility; name and address of the person certifying
the IBC; a unique test report identification; date of test report;
manufacturer of the IBC; description of the IBC design type (e.g.,
dimensions, materials, closures, thickness, representative service
equipment, etc.); maximum IBC capacity; characteristics of test
contents; test descriptions and results (including drop heights,
hydrostatic pressures, tear propagation length, etc.). Each test report
must be signed with the name of the person conducting the test, and
name of the person responsible for testing.
    (2) The person who certifies each IBC must make all records of
design qualification tests and periodic design requalification tests
available for inspection by a representative of the Department upon
request.

0
13. In Sec.  178.955, paragraph (i) is revised to read as follows:

Sec.  178.955  General requirements

* * * * *
    (i) Record retention. (1) Following each design qualification test
and each periodic retest on a Large Packaging, a test report must be
prepared. The test report must be maintained at each location where the
Large Packaging is manufactured and each location where the design
qualification tests are conducted. The test report must be maintained
as follows:

----------------------------------------------------------------------------------------------------------------
              Responsible party                                             Duration
----------------------------------------------------------------------------------------------------------------
Person manufacturing the packaging...........  As long as manufactured and two years thereafter.
Person performing design testing.............  Until next required periodic retest is successfully performed, a
                                                new test report produced, and five years thereafter.
Person performing periodic retesting.........  Until next required periodic retest is successfully performed and
                                                a new test report produced.
----------------------------------------------------------------------------------------------------------------

     (2) The test report must be made available to a user of a Large
Packaging or a representative of the Department of Transportation upon
request. The test report, at a minimum, must contain the following
information:

    (i) Name and address of test facility;
    (ii) Name and address of applicant (where appropriate);
    (iii) A unique test report identification;
    (iv) Date of the test report;
    (v) Manufacturer of the packaging;
    (vi) Description of the packaging design type (e.g., dimensions,
materials, closures, thickness, etc.), including methods of manufacture
(e.g., blow molding) and which may include drawing(s) and/or
photograph(s);
    (vii) Maximum capacity;
    (viii) Characteristics of test contents, e.g., viscosity and
relative density for liquids and particle size for solids;
    (ix) Mathematical calculations performed to conduct and document
testing (for example, drop height, test capacity, outage requirements,
etc.);
    (x) Test descriptions and results; and
    (xi) Signature with the name and title of signatory.

    Issued in Washington, DC on February 19, 2013 under authority
delegated in 49 CFR part 106.
Cynthia L. Quarterman
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-04197 Filed 3-6-13; 8:45 am]
BILLING CODE 4910-60-P