[Federal Register: February 2, 2010 (Volume 75, Number 21)]
[Rules and Regulations]
[Page 5375-5403]
[DOCID:fr02fe10-14]

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Part II

Department of Transportation

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Pipeline and Hazardous Materials Safety Administration

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49 CFR Parts 171, 172, 173, et al.

Hazardous Material; Miscellaneous Packaging Amendments; Final Rule

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174, and 178

[Docket No. PHMSA-06-25736 (HM-231)]
RIN 2137-AD89

Hazardous Material; Miscellaneous Packaging Amendments

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Final rule.

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SUMMARY: In this final rule, PHMSA is amending packaging requirements
in the Hazardous Materials Regulations to enhance compliance
flexibility, improve clarity, and reduce regulatory burdens.
Specifically, we are revising several packaging related definitions;
adding provisions to allow more flexibility when preparing and
transmitting closure instructions, including conditions under which
closure instructions may be transmitted electronically; adding a
requirement for shippers to retain packaging closure instructions;
incorporating new language that will allow for a practicable means of
stenciling the ``UN'' symbol on packagings; and clarifying a
requirement to document the methodology used when determining whether a
change in packaging configuration requires retesting as a new design or
may be considered a variation of a previously tested design. This final
rule also incorporates requirements for construction, maintenance, and
use of Large Packagings.

DATES: Effective Date: October 1, 2010.
    Voluntary Compliance Date: Compliance with the requirements adopted
herein is authorized as of March 4, 2010. However, persons voluntarily
complying with these regulations should be aware that appeals may be
received and as a result of PHMSA's evaluation of these appeals, the
amendments adopted in this final rule may be revised accordingly.

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson, Office of Hazardous
Materials Standards,<PHONE_NUMBER>, or Ben Moore, Office of Hazardous
Materials Technology,<PHONE_NUMBER>; Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background
II. Provisions Adopted in This Final Rule
    A. Definitions
    B. Plastic Packagings Used To Transport Poison Materials
    C. Revisions to the Hazardous Materials Table
    D. Exceptions for Shipments of Waste Materials
    E. Package Closure Instructions
    F. General Requirements for Bulk Packagings
    G. Reuse, Reconditioning, and Remanufacture of Packagings
    H. Package Marking Requirements for Drums
    I. UN Symbol Marking
    J. Design-Type Variations
    K. Selective Testing of Steel Drums
    L. Revisions to Requirements for IBCs
    M. Large Packagings
    N. Additional Revisions in This Final Rule
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for the Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Policies and Procedures
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. Regulation Identification Number (RIN)
    I. Environmental Assessment
    J. Privacy Act

I. Background

    On September 1, 2006, we published a notice of proposed rulemaking
(NPRM) under Docket HM-231 (71 FR 52017) that proposed to: (1) Revise,
remove, and add definitions specific to packaging requirements; (2)
amend import and export provisions to require plastic single and
composite non-bulk packagings containing Division 6.1 material to be
marked ``POISON'' in conformance with Sec.  172.313(b); (3) revise
certain Sec.  172.101 Table entries for packaging requirements; (4) add
and revise certain special provisions to authorize the transportation
of certain hazardous materials in Large Packagings; (5) clarify
shippers' responsibilities for complying with packaging standards; (6)
clarify requirements for stacking of bulk packages; (7) correct an
error in provisions applicable to intermediate bulk container (IBC)
requirements related to gauge pressure; (8) authorize the
transportation of bromine residue in cargo tanks; (9) clarify
requirements applicable to closure instructions for specification
packagings; (10) add exceptions for marking of steel drums; (11) add an
exception to permit marking of the UN symbol on specification
packagings with a stencil; (12) amend general requirements for the use
of certain packaging variations; and (13) add standards and provisions
for the manufacture and use of Large Packagings.
    Twenty-four persons submitted comments on the NPRM. Most supported
adoption of the proposals in the NPRM. Negative comments were generally
focused on issues related to record retention of closure instructions,
documenting methodologies utilized to determine whether packaging
variations achieve an equivalent level of performance to already tested
packaging configurations, and the definitions proposed for bulk and
non-bulk packaging.
    The comments may be reviewed at http://www.regulations.gov. For
convenience, a list of the commenters is provided below.

----------------------------------------------------------------------------------------------------------------
                                             Date of letter
               Name/company                 or when received                     Document No.
----------------------------------------------------------------------------------------------------------------
Kathryn W. Pacha..........................        09/05/2006  PHMSA-2006-25736-2
Georgia Department of Public Safety.......        09/25/2006  PHMSA-2006-25736-3
Regulatory Resources, Inc. (RRI)..........        10/06/2006  PHMSA-2006-25736-4
Frits Wybenga.............................        10/09/2006  PHMSA-2006-25736-5
European Chemical Industry Council (CEFIC)        10/24/2006  PHMSA-2006-25736-6
The Dangerous Goods Advisory Council              10/26/2006  PHMSA-2006-25736-7
 (DGAC).
North American Automotive Hazmat Action           11/16/2006  PHMSA-2006-25736-8
 Committee (NAAHAC).
Kurt Colborn..............................        11/22/2006  PHMSA-2006-25736-9
National Association of Chemical                  11/22/2006  PHMSA-2006-25736-10
 Distributors (NACD).
The Chlorine Institute, Inc...............        11/22/2006  PHMSA-2006-25736-11
HMT Associates L.L.C......................        11/21/2006  PHMSA-2006-25736-12
Air Products and Chemicals, Inc. (Air             11/29/2006  PHMSA-2006-25736-13
 Products).
American Trucking Associations (ATA)......        11/30/2006  PHMSA-2006-25736-14

U.S. Department of Energy (DOE)...........        11/30/2006  PHMSA-2006-25736-15
Crop Life America (CropLife)..............        11/27/2006  PHMSA-2006-25736-16
C. L. Smith Company.......................        11/30/2006  PHMSA-2006-25736-17
Flexible Intermediate Bulk Container              11/30/2006  PHMSA-2006-25736-18
 Association (FIBCA).
Reusable Industrial Packaging Association         11/27/2006  PHMSA-2006-25736-19
 (RIPA).
Charles E. Tudor, CP-P/MH.................        11/28/2006  PHMSA-2006-25736-20
Steel Shipping Container Institute (SSCI).        11/29/2006  PHMSA-2006-25736-0022
American Promotional Events, Inc. (APE)...        11/30/2006  PHMSA-2006-25736-23
Greg McCanless............................        10/12/2007  PHMSA-2006-25736-24
----------------------------------------------------------------------------------------------------------------

    On December 1, 2006, we published a correction to the NPRM to
correct mathematical calculations under the Paperwork Reduction Act
section of the rulemaking. The revision changed the total number of
annual respondents from 5,000 to 5,010, and the total number of annual
responses from 15,000 to 15,500 for OMB Control No. 2137-0572.
    This final rule is designed primarily to enhance safety, clarify
specific packaging regulations and to ease and enhance compliance by
incorporating changes into the HMR based on PHMSA's own initiative and
petitions for rulemaking submitted in accordance with 49 CFR 106.95. We
are also adding two new subparts to Part 178--Subpart P-Large Packaging
Standards, and Subpart Q-Testing of Large Packagings--to facilitate the
use of these packagings.
    In this final rule, we are amending the HMR to:
    1. Revise the definitions for ``Bulk packaging'' and ``Large
packaging'' to allow intermediate forms of containment and add a
definition for ``Strong outer packaging'' for consistency and clarity
when shipping in non-specification packaging.
    2. Revise Sec.  172.101 Table entries to authorize the use of Large
Packagings for certain explosives, and revise packaging requirements
for ``Azodicarbonamide'' and ``Isosorbide-5-mononitrate.''
    3. Add and revise special provisions to facilitate the use of Large
Packagings.
    4. Clarify shippers' responsibilities regarding package closure
instructions and electronic transmission, and add new requirements
regarding retention and other exceptions.
    5. Clarify shippers' responsibilities to comply with the HMR's
packaging standards, and to document the method used when determining
whether a change in packaging configuration requires retesting as a new
design or may be considered a variation of a previously tested design.
    6. Correct an error in general IBC requirements related to pressure
limits.
    7. Authorize the transportation of bromine residue in cargo tanks.
    8. Revise requirements applicable to closure instructions to permit
manufacturers additional flexibility when preparing and transmitting
them.
    9. Permit stenciling of the UN symbol on specification packagings.
    10. Add new Subparts P and Q to Part 178 to authorize the
manufacture, testing, and use of Large Packagings.
    This final rule also implements several revisions proposed in the
NPRM based on six petitions for rulemaking:

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                                   Date of letter                                                       Petition
          Name/company            or when received                     Document No.                       No.
----------------------------------------------------------------------------------------------------------------
Monsanto-The Agricultural Group.        04/16/1993  PHMSA-RSPA-1993-12657-0001.......................     P-1173
Steel Shipping Container                05/20/1997  PHMSA-RSPA-2002-13401-0001.......................     P-1337
 Institute.
The Association of Container            05/20/1998  PHMSA-RSPA-1998-12610-0001.......................     P-1359
 Reconditioners.
Steel Shipping Container                01/26/1999  PHMSA-RSPA-2002-13401-0001.......................     P-1371
 Institute.
Arch Chemicals, Inc.............        10/01/2002  PHMSA-RSPA-2002-14130-0002.......................     P-1431
Dangerous Goods Advisory Council        04/19/2005  PHMSA-2005-21091-0001............................     P-1455
----------------------------------------------------------------------------------------------------------------

    The petitions are discussed in more detail in the appropriate
sections of this preamble. Each of these petitions may be viewed at
http://www.regulations.gov in the docket for this rulemaking.

II. Provisions Adopted in This Final Rule

    Following is a discussion of the comments we received in response
to the 2006 NPRM and a detailed explanation of the provisions we are
adopting in this final rule.

A. Definitions

    Section 171.8 contains the general definitions and section
references that apply to the HMR. In the NPRM, we proposed to revise
the definitions in this section for bulk, non-bulk, and large
packaging; remove the definition for strong outside container; and add
definitions for reconditioned, remanufactured, and strong outer
packagings.
    Bulk and Non-bulk Packaging. In the NPRM, we proposed to revise the
definitions for ``Bulk packaging'' and ``Non-bulk packaging'' based on
the particular packaging specification at issue and volumetric
capacity. The proposed changes were prompted by a petition from
Monsanto Company (P-1173) and designed to make the definitions easier
to understand. In the NPRM, we proposed to remove the maximum net mass
and water capacity limits from these definitions and replace them with
requirements that emphasize packaging type and the performance-oriented
packaging standards of Subparts C, L, and M of 49 CFR Part 178, as
applicable. We proposed these changes to clarify the current
definitions, eliminate confusion, and enhance voluntary compliance. We
did not intend to change the quantity thresholds in the HMR for bulk or
non-bulk packagings.
    The majority of commenters object to the proposed changes. The
commenters have the following concerns:
    1. Applicability of the proposed definitions to cylinders. Three
commenters (the NACD, The Chlorine Institute, Inc., and Air Products)
suggest that the proposed definition for ``bulk packaging'' could be
interpreted to cover the DOT 3AX, 3AAX, and 3T bulk cylinders. In its
comments, NACD states

that these containers have traditionally been considered non-bulk
packagings and have been handled as such without safety problems. All
three commenters are concerned that this ``re-definition'' will
adversely affect the transportation of many compressed gases and could
result in the application of regulatory requirements specific to the
transportation of bulk packages to transporters of larger chlorine
cylinders, essentially eliminating a common transportation method for
transporting DOT 3AAX cylinders by highway. The commenters also contend
that this change would place a substantial burden on shippers and users
of chlorine with no safety justification because historically these
packagings have had few problems in transportation.
    2. Applicability of the proposed definitions to RAM. The U.S.
Department of Energy (DOE) is strongly opposed to a bulk/non-bulk
distinction with regard to radioactive materials (RAM) packaging. DOE
states that packaging requirements for RAM have historically been based
on risk and containment only, without consideration for volume. DOE
also cites a previously issued interpretation that stated that RAM
packagings are generally considered non-bulk (Reference Number: 01-
0153). DOE is specifically concerned with the implications of bulk
venting requirements and the removal of the restriction on intermediate
forms of containment in bulk packagings. DOE is further concerned that
current requirements restricting the venting of bulk packagings would
prevent necessary venting of certain RAM packagings if they are classed
as ``bulk.''
    3. Volumetric capacity limits and Harmonization with United Nations
(UN) Model Regulations. Nine commenters state that the non-bulk
packaging definition should be based on UN Model Regulations (i.e., no
volumetric limit for solids). These commenters assert that use of the
UN Model Regulations allows non-bulk packagings with volumetric
capacities greater than 450 liters (119 gallons) provided the weight
does not exceed 400 kg (882 pounds). Generally, the commenters assert
that the lack of harmonized definitions places U.S. companies at a
competitive disadvantage and appears to provide no safety benefits,
while a harmonized standard would promote flexibility and cost-
effectiveness. The RIPA agrees it may be beneficial to harmonize with
the international requirements, but believes all the consequences of
such a change should be considered more fully in a separate rulemaking.
    4. Necessity of definitions. Two commenters (DGAC and APE) state
the definitions for bulk and non-bulk packaging should be removed from
the HMR. In its comments, DGAC states that the delineation is arbitrary
and that the terms no longer serve a useful purpose in regulation. APE
states these terms are not used in international regulations, and in
its experience using these terms is detrimental to U.S. industry and
offers no safety benefits.
    On the other hand, Kathryn W. Pacha states ``Removal of the
volumetric requirement from the definition could make the application
of markings, labels, and placards more confusing and not less.'' Ms.
Pacha supports the volumetric limit in the current version of the HMR
and stated in her comments: ``From the perspective of emergency
responders, if a package looks big, it should be communicated as
``big'' since communication requirements are for emergency
responders.'' RIPA also opposes removing the volumetric limits in the
HMR for bulk and non-bulk packagings because it finds the proposed
definitions more confusing than the originals, and believes without
these volumetric definitions the distinction between IBCs and drums
could disappear.
    Based on the overwhelming opposition to the proposed definitions
for ``bulk packaging'' and ``non-bulk packaging,'' we are not adopting
the proposed definitions in this final rule. Packaging manufacturers
and shippers should be aware that packagings with a volumetric capacity
greater than 450 liters (119 gallons) as a receptacle for a liquid,
both a maximum net capacity greater than 450 L (119 gallons) and a
maximum net mass greater than 400 kg (882 pounds) as a receptacle for a
solid, and a water capacity greater than 454 kg (1,000 pounds) as a
receptacle for a gas are bulk packagings under the HMR regardless of
the weight or volume of the hazardous material contained therein. See
Sec.  171.8. We want to emphasize for packaging manufacturers and
shippers that the bulk packaging definition is based on the capacity of
a packaging, not on the actual amount contained in the packaging at
shipment. Thus, packagings with the bulk volumetric capacity mentioned
earlier in this paragraph are bulk packagings for purposes of the HMR
regardless of the weight or volume of the hazardous material contained
therein.
    In this final rule, we are removing the phrase ``with no
intermediate form of containment'' from the definition of a ``bulk
packaging.'' Modifying the definition in this way clarifies that Large
Packagings, which contain inner packagings, are considered bulk
packagings for purposes of the HMR. Commenters did not oppose this
change.
    In conjunction with our proposal to revise the definitions for
``bulk packaging'' and ``non-bulk packaging,'' we proposed to define
standards for each specific non-bulk specification packaging type. We
proposed to amend Sec. Sec.  178.512 through 178.521 to specify
volumetric capacity may not exceed 450 L (119 gallons) for the
following packaging design types: aluminum boxes, natural wood boxes,
plywood boxes, reconstituted wood boxes, fiberboard boxes, plastic
boxes, woven plastic bags, plastic film bags, textile bags, and paper
bags. The purpose was to eliminate uncertainty in determining if a
package is a bulk package or a non-bulk package.
    Commenters strongly oppose the revised definitions and the
revisions to Sec. Sec.  178.512 through 178.521. As discussed above, we
are not adopting the proposed definitions for non-bulk and bulk
packagings in this final rule. Similarly, we are not adopting the
revisions proposed for Sec. Sec.  178.512 through 178.521. However,
packaging manufacturers and shippers should be aware that packagings
with a volumetric capacity greater than 450 liters (119 gallons) are
bulk packagings regardless of the weight of the hazardous material
contained in the packaging.
    Strong outside container and strong outer packaging. In the NPRM,
we proposed to remove the definition for ``strong outside container''
and add a new definition for ``strong outer packaging.'' Currently, the
HMR use the terms ``strong outside container,'' ``strong outside
packaging,'' and ``strong outer packaging'' interchangeably; however,
there is no definition for ``strong outer packaging'' or ``strong
outside packaging'' in Sec.  171.8. Therefore, we proposed to remove
the wording ``strong outside container'' and ``strong outside
packaging,'' add the language from the ``strong outside container''
definition to a new definition for ``strong outer packaging,'' and add
additional language to the new definition as follows:

------------------------------------------------------------------------
Strong outside container vs.
   strong outer packaging            Current              Proposed
------------------------------------------------------------------------
                              Strong outside        Strong outer
                               container means the   packaging means the
                               outermost enclosure   outermost enclosure
                               which provides        which provides
                               protection against    protection against
                               the unintentional     the unintentional
                               release of its        release of its
                               contents under        contents. It is a
                               conditions normally   packaging, which is
                               incident to           sturdy, durable,
                               transportation.       and constructed so
                                                     that it will retain
                                                     its contents under
                                                     normal conditions
                                                     of transportation,
                                                     including rough
                                                     handling. In
                                                     addition, a strong
                                                     outer packaging
                                                     must meet the
                                                     general packaging
                                                     requirements of
                                                     subpart B of part
                                                     173 of this
                                                     subchapter but need
                                                     not comply with the
                                                     specification
                                                     packaging
                                                     requirements in
                                                     Part 178 of the
                                                     subchapter. For
                                                     transport by
                                                     aircraft, a strong
                                                     outer packaging is
                                                     subject to Sec.
                                                     173.27 of this
                                                     subchapter.
------------------------------------------------------------------------

    Three commenters, RRI, the DGAC, and the NAAHAC, submitted comments
in support of the proposed new definition. RRI and NAAHAC strongly
support the new definition; however, they disagree with the use of the
phrase ``including rough handling'' following the long-used phrase
``normal conditions of transport'' because it implies that rough
handling is ``normal.'' In the course of transportation, packages are
handled in a manner that can be characterized as ``rough.'' Rough
handling is common and may occur any time a package is loaded or
unloaded in a hurried manner, shifts while in a transport vehicle, or
is dropped from a height of more than a few inches (e.g., three
inches). After further consideration, we have concluded that adding the
phrase ``including rough handling'' is redundant and inconsistent with
other HMR provisions that include the phrase ``normal conditions of
transportation.'' Therefore, in this final rule we are removing the
phrase ``including rough handling'' from the definition proposed in the
NPRM.
    DGAC supports the new definition for ``strong outer packaging'' but
questions the need to reference Subpart B of Part 173 and Sec.  173.27.
DGAC contends that most strong outer packagings are used to transport
limited quantities, the regulatory requirements for which already
reference Subpart B. The commenter is correct that the regulatory
requirements applicable to limited quantity shipments already reference
Subpart B. However, there are a number of instances in the HMR
authorizing the transportation of certain classes and quantities of
hazardous materials, other than limited quantities, in strong outer
packagings. Including the references to Subpart B of Part 173 and Sec.
173.27 in the definition for ``strong outer packaging'' will contribute
to an increased level of regulatory compliance by cross-referencing the
requirements that apply.
    PHMSA notes none of the commenters objected to the interchangeable
manner in which ``strong outside container,'' ``strong outside
packaging,'' and ``strong outer packaging'' are currently used in the
HMR. Although ``strong outer packaging'' is used the most in the HMR,
to PHMSA's knowledge, the interchangeable use of this wording with
strong outside container and strong outside packaging has resulted in
little or no confusion to the shipper. Further, we believe that
removing ``strong outside container'' and ``strong outside packaging''
from the HMR may cause confusion for the regulated community that may
compromise safety, whereas adding the definition for ``strong outer
packaging'' and a sentence at its end that states the three terms are
interchangeable may clarify their meaning. Therefore, in this final
rule we are adding a sentence to the end of the new definition for
``strong outer packaging'' in Sec.  171.8 to clarify that ``strong
outside container'' and ``strong outside packaging'' are synonymous in
meaning with ``strong outer packaging.''
    Remanufactured packaging, Reused packaging, and Reconditioned
Packaging. Currently, the HMR define ``remanufactured packaging,''
``reused packaging,'' and ``reconditioned packaging'' in Sec.  173.28.
In the NPRM, we proposed to add a reader's aid to Sec.  171.8 to refer
to the definitions for ``remanufactured packaging'' and ``reconditioned
packaging'' in Sec.  173.28. We did not propose a reference to ``reused
packaging'' in the NPRM. RIPA supports the addition of the reader's
aids for ``remanufactured packaging'' and ``reconditioned packaging''
in Sec.  171.8, and suggests that PHMSA should also add a reference for
``reused packaging'' in Sec.  171.8. We agree. In this final rule, we
are adding a reference for ``reused packaging'' in Sec.  171.8.

B. Plastic Packagings Used To Transport Poison Materials

    Section 171.23 establishes conditions under which shippers may use
the international standards as authorized by the HMR for shipments
transported to, from, or within the United States. Arch Chemicals, Inc.
(``Arch'') petitioned PHMSA (P-1431) to amend this section to reference
the marking requirement in Sec.  172.313(b). Paragraph (b) of Sec.
172.313 requires plastic single and composite non-bulk packagings
containing Division 6.1 material to be marked ``POISON.'' The purpose
of this marking is to inform persons who may wish to re-use a packaging
that previously contained a poisonous material that the packaging
should not be used for foodstuffs because the poison may have permeated
the packaging material. In its petition, Arch states that, because
Sec.  171.23 does not require compliance with Sec.  172.313, import
shipments need not have this marking, creating an inconsistency in the
HMR. Thus, in the NPRM we proposed to require import and export
shipments to be marked in accordance with Sec.  172.313(b).
    Several commenters, including Arch, oppose this proposal. Instead,
they suggest that we eliminate the domestic marking requirement. Two
commenters, Air Products and CropLife, state the term ``poison'' is not
used in international regulations. CropLife further states it believes
the United States should not require that ``poison'' be marked on
foreign plastics that contain these types of materials without evidence
the requirement will achieve measureable safety improvements.
Commenters also state that the current requirements are outdated
because newer plastics have been developed since Sec.  172.313(b) was
originally incorporated into the HMR. The newer plastics are designed
so that they could be filled with a poison material, cleaned, and
filled with a foodstuff safely.

    In this final rule we are not adopting the proposed change due to
overwhelming opposition to the proposal, including opposition from the
original petitioner. Comments concerning elimination of the domestic
marking requirement are beyond the scope of this rulemaking. PHMSA may
consider revisions to the import-export requirements or a proposal to
the UN as a future initiative.
    The Dangerous Goods Advisory Council (DGAC) notes that PHMSA
permits the use of the word ``TOXIC'' in the place of ``POISON.'' We
agree that TOXIC can be used in place of POISON throughout the HMR.
Therefore, we are not revising Sec.  172.313 in this final rule to
clarify further that the HMR permit the word ``TOXIC'' to be used as an
alternative to the word ``POISON.''

C. Revisions to the Hazardous Materials Table

    The Hazardous Materials Table (HMT) in Sec.  172.101 lists the
proper shipping name, hazard class, and identification number that must
be used to describe a hazardous material in transportation. In the
NPRM, we proposed several minor amendments to the HMT related to
packaging provisions. We received no comments on these proposals;
therefore, we are adopting them as proposed in this final rule.
    We are amending the entries for ``Azodicarbonamide'' and
``Isosorbide-5-mononitrate.'' Because these materials pose similar
hazards, they are best packaged in the same manner as Musk xylene (5-
tert-Butyl-2,4,6-trinitro-m-xylene). We are changing their references
for non-bulk packaging to Sec.  173.223. To authorize the
transportation of certain explosives in Large Packagings consistent
with the UN Recommendations, several entries for explosives are revised
to read ``62'' rather than ``none'' in Column (8c). We are also making
editorial changes to the special provisions and vessel stowage
requirements for these entries in the HMT.
    As proposed in the NPRM, we are revising Sec.  173.223 for
consistency with the revised HMT entries for ``Azodicarbonamide'' and
``Isosorbide-5-mononitrate.'' PHMSA received no comments on the
language change proposed in the NPRM, and will adopt these provisions
as proposed.

D. Exceptions for Shipments of Waste Materials

    Section 173.12 establishes conditions for reuse of previously used
packagings for the transportation of hazardous waste. The Association
of Container Reconditioners (ACR) (P-1328) petitioned PHMSA to amend
Sec.  173.12(c). ACR states the minimum thickness criteria specified in
Sec.  173.28(b)(4) for the reuse of metal and plastic drums and
jerricans should be applied to packagings reused for waste materials
under the exception in Sec.  173.12(c). ACR contends that hazardous
waste packagings currently excepted under Sec.  173.12(c) should be
subject to minimum thickness criteria, and that the inclusion of Sec.
173.12(c) is an oversight and was inadvertently incorporated into the
HMR as part of Docket HM-181 (December 21, 1990; 55 FR 52401).
    The exception in Sec.  173.12(c) is not authorized for a packaging
intended to be used more than two times (initial use and the return
shipment of the waste product). A package may only be shipped under
this exception once and must meet the following conditions: (1) It may
only be transported by highway; (2) it must be loaded by the shipper
and unloaded by the consignee or shipped by a private motor carrier;
(3) the packaging may not be offered for transportation less than
twenty-four hours after it is finally closed for transportation and;
(4) each package must be inspected for leakage and found to be free
from leaks immediately prior to being offered for transportation. If
the packaging is subsequently reused, it will be subject to the minimum
thickness requirements in Sec.  173.28(b)(4). The significant
restrictions of Sec.  173.12(c) and the fact that the exception may
only be used once per packaging make it unnecessary to require a
shipper to comply with the minimum thickness criteria in Sec.
173.28(b)(4). Therefore, we do not believe that the packages that
comply with the restrictions in Sec.  173.12(c) need to comply with the
minimum thickness criteria in Sec.  173.28(b)(4). We also do not
believe that the costs associated with the impacts of both petitioners'
requests are commensurate with the benefits and, therefore, in this
final rule we are denying their petitions.
    Citing safety as their concern, RIPA supports maintaining minimum
thickness criteria for steel and plastic drums reused for one-time
shipments of hazardous wastes under the waste exceptions in Sec.
173.12. RIPA suggests that the uncertainty in characterizing these
wastes warrants more stringent requirements for their packaging. We
disagree. As we previously stated, based on the additional provisions
that must be met in Sec.  173.12(c), we concluded that there will be
minimal, if any, additional safety benefit as a result of an additional
minimum thickness requirement for this exception and there would be
significant additional cost associated with the addition of such a
requirement.

E. Packaging Closure Instructions

    In accordance with Sec.  178.2(c), a packaging manufacturer and
subsequent distributors of the packaging must provide written
instructions for assembling and closing the packaging so that it will
maintain its integrity during transportation. However, this section
does not specify how detailed the closure instructions must be or what
they must include. Generally, we expect that the closure instructions
will provide for a consistent and repeatable means of closure. For
example, the manufacturer's closure instructions could specify a range
of torque values applicable to the closure or a detailed closure method
(e.g., tighten the cap until the bottle contacts the cap gasket and
then tighten an additional \3/4\ turn). Alternatively, the packaging
and closure could be designed with a stop feature of other indexing to
indicate how the cap should be tightened. The closure instructions
should be consistent with the language in the packaging test report and
written so the user is able to duplicate the closure method. In the
NPRM, we proposed to add language to Sec.  178.2(c) to clarify closure
instruction requirements. The new language clarifies that any closure
method is authorized provided that it is measurable and repeatable.
    Several commenters express concern with this new language,
suggesting that it is a significant, unnecessary, and potentially
costly new requirement (RIPA); that it will be ineffective because
closure failures, when they occur, are more likely the result of human
error and not closing the package in accordance with the closure
instructions (DGAC); and that it may not always be possible to employ a
closure method that is ``measurable'' (FIBCA) or ``repeatable'' (RIPA).
    Comments are not correct that the proposed language requiring
packagings to be closed ``in the same manner'' as when the package
design type was tested is a new requirement; this is a longstanding
regulatory requirement. The proposed revision to this section was
intended to clarify that packaging closure methods must be consistent
and repeatable, but need not necessarily require instruments such as a
torque wrench.
    We are confident that manufacturers will be able to develop closure
methods for all packagings that are both repeatable and measurable. The
meaning of the term ``measurable'' will differ depending on the type of
packaging. For example, on a bottle

``measurable'' could be the torque setting on a torque wrench or the
number of turns (or fraction thereof) past contact with a gasket. In
the case of a flexible packaging, it could be the setting on a sewing
device, type and grade of thread, the type of glue, the location where
the tie-off is to be placed, or pressure settings on a sealing device.
We agree that certain closure methods are not measurable in the sense
that they cannot be quantified with a number and a unit of measure
(e.g., 25 inch-pounds).
    In this final rule, we are revising Sec.  178.2(c)(1)(ii) to
clarify that closure instructions must provide for a repeatable means
of closure consistent with the means of closure used for performance
testing. This change is intended to provide additional flexibility to
packaging manufacturers and allow for packagings with a simpler means
of closure.
    In addition, in this final rule we are amending Sec.  178.2(c) to
clarify that a packaging manufacturer may transmit the information
required in this section, including closure instructions, using
electronic means instead of or in addition to making a written
notification. Such electronic means of notification may include emailed
transmissions or transmission on a CD or other similar device.
Permitting the use of electronic means to meet the notification
requirements in this section provides manufacturers with additional
flexibility and will reduce compliance costs. Note that if a
manufacturer elects to utilize electronic measures to make the required
notifications, he must make a positive notification--that is, he must
email or transmit the information specific to the packaging in question
and the transmission must be in a form that can be printed in hard copy
by the person receiving the notification. Referring the person
receiving the notification to a website for the required information is
not acceptable.
    In the NPRM, we proposed to revise the shipper's responsibilities
in Sec.  173.22(a)(4) to include a requirement to retain a copy of the
packaging closure instructions provided by the packaging manufacturer.
As proposed, a shipper would be required to retain closure instructions
for at least 375 days. Current requirements specify that the person
transferring the packaging to the shipper or distributor must furnish a
copy of the closure instructions; however, there is no requirement for
the shipper to retain the documentation.
    A number of commenters (RIPA, DGAC, Mr. Frits Wybenga, Air
Products, FIBCA, CropLife, and SSCI) oppose a requirement for shippers
to retain packaging closure instructions. These commenters state the
proposed requirement imposes a significant new record retention
requirement without adequate justification or underlying data. RIPA
states it ``is unaware of any data or other evidence developed by DOT
to support its proposal. In fact, it is quite probable that leaks from
closures are more often the result of human error rather than the
unavailability of adequate closure instructions.'' RIPA suggests that
if the proposal is adopted, the record retention period should be
limited to 365 days and shippers should be required to retain only one
current copy of a manufacturer's closure notification. Several
commenters questioned the safety benefit of retaining packaging closure
instructions for 375 days.
    Two commenters (DOE and NAAHAC) support the proposal to ensure that
the necessary closure instructions and supporting test documents are
available and used, but DOE's request that PHMSA clarify how this
proposed requirement would apply to gas cylinders, cargo tanks, and
portable tanks. DOE also requests that PHMSA simplify the retention
requirement for variation packagings to keep document retention costs
at a minimum. Air Products states precautionary labels exist on
compressed gas cylinders that include closure instructions, and
questions what benefit additional closure instructions would provide.
NAAHAC requests that only the initial shipper be required to provide
closure instructions and supportive documentation, if applicable, to
the second user of the package. NAAHAC states ``to require that all of
this information be provided to and maintained by [each] subsequent
shipper who has opened the package and is reusing it would place a
significant burden on the industry.'' The NACD suggested, if a
sufficient need can be demonstrated for retaining the closure
instructions, that PHMSA require each shipper to retain an on-site
master list of closure instructions and variations instead of those for
each individual packaging to reduce the amount of paperwork.
    Underlying our NPRM proposal to require shippers to retain
packaging closure instructions was our belief that, in the absence of a
regulatory requirement, most shippers retain closure instructions as a
responsible business practice to ensure that employees know how to
properly close a package. We, therefore, assumed that imposition of a
regulatory requirement would result in only a minimally increased
paperwork burden. However, the commenters indicate that retention of
closure instructions is not a common practice.
    We continue to believe that shippers should retain and utilize the
closure instructions provided by packaging manufacturers to ensure
these packagings, including those with variations, are properly
prepared and closed for transportation. As we stated in the NPRM, a
packaging may be filled and closed by a hazmat employee other than the
individual who receives the manufacturer's packaging closure
instructions. Moreover, a packaging may not be filled and closed for
weeks or months after it has been sold or otherwise transferred to the
shipper. In the absence of closure instructions, the shipper and its
employees may not know how to properly close the package. Indeed, in
its comments on proposed revisions to Sec.  178.2(c) (discussed
elsewhere in this preamble), DGAC states that closure failures, when
they occur, are likely the result of not closing the package in an
accordance with the closure instructions. Our incident data shows that
the primary cause of incidents involving leakage from packages in
transportation is improperly closed packages.
    We agree that human error often results in leaks from closures, and
we believe that use of accurate closure instructions will result in
fewer instances of human error. A hazmat employee's ability to properly
close a hazardous materials packaging is significantly compromised
without the manufacturer's closure instructions. Retention of and
adherence to the closure instructions will help to ensure hazardous
materials packages are closed as the manufacturer intended, thereby
reducing the possibility that these packages will leak or be breached
during transportation. This will also provide consistency for training.
There are many employees that do not perform hazardous material related
functions daily, so on the occasion when they are requested to do so,
having instructions to use as a guide will assist them with performing
these tasks in conformance with the regulations. Therefore, we are
retaining this requirement and, in response to the comments, are
slightly reducing the number of days of retention to 365 and adjusting
our estimates of the compliance burden, including the paperwork burden,
to account for the fact that most shippers do not currently retain
closure instructions.
    We note that a shipper may retain closure instructions in a variety
of ways that may prove cost effective. For example, a shipper may
maintain closure instructions in an electronic

format or as part of a package of guidance material for hazmat
employees who are responsible for filling and closing packagings.
Further, the closure instructions need not be maintained in the precise
format or wording provided by the manufacturer. If a shipper identifies
a more effective way to communicate closure instructions to its hazmat
employees--such as through graphical or pictorial depictions, step-by-
step instructions, simplified wording, or similar methods--a shipper
may do so provided the substance of the closure instructions is
retained. The closure instructions should be retained in a format that
will ensure that each hazmat employee responsible for closing the
packaging to which the instructions apply understands the instructions
and can apply them consistently. Therefore, in this final rule, we are
adopting a requirement for shippers to retain packaging closure
instructions provided by the packaging manufacturer for at least 365
days after offering the package for transportation. We are also
adopting an exception from this requirement for closure instructions
that are permanently embossed or printed on the packaging.

F. General Requirements for Bulk Packagings

    In the NPRM, we proposed a new paragraph Sec.  173.24b(e) to
clarify that bulk packagings not designated and tested for stacking may
not be stacked during transportation. In addition, we proposed adding
language to clarify that bulk packagings intended for stacking may not
have more weight superimposed upon them than what is marked on the
packaging. Currently, the requirements in Sec.  173.24b(e) apply to
IBCs and Large Packagings only. See existing Sec.  178.703(a)(1)(vii)
and new Sec.  178.903(a)(1)(vii) in this rule. The HMR require bulk
packagings designed or intended to be stacked to meet stacking test
requirements, either through performance testing specifically
prescribed in the HMR or industry standards incorporated-by-reference
into the HMR (see Sec.  171.7). However, the HMR do not always require
the maximum load that can be stacked on the packaging to be marked or
indicated on the packaging in the same manner as it requires this
information on IBC and Large Packagings. Adopting the language proposed
in the NPRM for Sec.  173.24b(e) may add additional testing, marking,
and paperwork activities for some bulk packagings that were not
previously considered under this rulemaking action or that may already
be addressed under some other type of informational marking. Therefore,
we are not revising existing Sec.  173.24b(e) in this final rule. We
will continue to examine this issue to determine if additional
rulemaking action is necessary. The comments we received on this
subject in response to this rulemaking will be taken under
consideration if we develop a future rulemaking.
    Air Products, ATA, CropLife, RIPA, and DGAC supported aligning the
stacking requirements for IBC and Large Packagings with those the UN
Subcommittee on the Transport of Dangerous Goods was considering at the
time this NPRM was published, which included incorporating specific
symbols to indicate if these packages could or could not be stacked
during transportation. In December 2006, the UN Subcommittee adopted
these symbols in the 15th edition of the UN Recommendations as a
stacking mark for IBCs packagings only that are manufactured, repaired,
or remanufactured on or after 1/1/2011. We've repeated the symbols here
for your convenience. They are also located in the ATA's comments
(PHMSA-2006-25736-0014).
    IBCs not capable of being stacked
    [GRAPHIC] [TIFF OMITTED] TR02FE10.000

    IBCs capable of being stacked (must include the maximum stacking
weight):
[GRAPHIC] [TIFF OMITTED] TR02FE10.001

    In a final rule PHMSA issued on January 14, 2009, PHMSA
incorporated these symbols for IBCs into Sec.  178.703 of the HMR (see
Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J); 74
FR 2200). This section requires manufacturers of IBC packagings that
are manufactured, repaired, or remanufactured after 1/1/2011 to mark
IBCs with the appropriate symbol, and for those that successfully pass
the stacking test prescribed in Sec.  178.815 to include the weight of
material that may be safely stacked on the packaging as part of the
stacking symbol and specification marking. A packaging not subjected to
a stacking test must be marked to indicate that it may not be stacked.
For example, the ``0'' in the second from last position of the
following UN standard marking ``UN51H/Z/06 04/USA/+ZT1235/0/500''
indicates that the packaging must not be stacked. If a number greater
than zero is in this same position in the marking, such as the number
``250'' in the following example ``UN51H/Z/06 04/USA/+ZT1235/250/500,''
the package may be stacked provided the gross weight stacked upon it
does not exceed this number in kilograms. Commenters on this provision
in the Docket No. HM-215J rules stated the new stacking symbol is
easier for carriers to recognize and understand.
    The ATA strongly encourages PHMSA to communicate this stacking
requirement to carriers, who often are responsible for loading
hazardous materials packages. We have already begun incorporating
information about these IBC stacking requirements in our training
programs and materials. However, we have not determined at this time
whether to require the IBC stacking capability symbols for Large
Packagings. PHMSA may consider such action in a future rulemaking.

G. Reuse, Reconditioning, and Remanufacture of Packagings

    In the NPRM, we proposed to clarify that packagings not meeting
minimum thickness criteria may not be reconditioned or remanufactured.
DGAC and RIPA strongly oppose this proposal. Both commenters state
remanufactured packagings, such as drums and jerricans, should be
treated as ``new'' packagings under the HMR. Since newly manufactured
packagings are not subject to minimum thickness criteria, these
commenters assert that remanufactured packagings also should not be
subject to such criteria.
    The commenters are correct that remanufactured packagings are
filled and transported in the same manner as new packagings. For this
reason, however, we believe it is critical for transportation safety
that the packaging remanufacturer confirm that they are suitable for
transportation. The minimum thickness criteria currently prescribed in
Sec.  173.28 are designed to prevent packagings with wall thicknesses
that are too thin to safely perform their containment function from
being reused, reconditioned, or remanufactured. The proposed revisions
were intended to clarify that when a packaging no longer meets the
minimum thickness criteria, it is no longer suitable for reconditioning
or remanufacturing. However, we note that this provision applies to
packagings

intended for reuse as well. Therefore, we are adopting the revisions as
proposed and adding reused packagings to clarify that the minimum
thickness provision applies to reused, reconditioned, and
remanufactured packagings.
    In Sec.  173.35(h)(2), we are correcting an error in the pressure
limitation for metal IBCs. Currently, paragraph (h)(2) prohibits the
gauge pressure in a metal IBC from exceeding 110 kPa (16 psig) at 50
[deg]C (122 [deg]F), or 130 kPa (18.9 psig) at 55 [deg]C (131 [deg]F).
Use of the term ``gauge pressure'' is an error. We are correcting this
by changing the phrase ``gauge pressure'' to read ``vapor pressure.''
We received no comments on this issue.

H. Packaging Marking Requirements for Drums

    Under the HMR, DOT specification and UN standard packagings must be
marked with their package specification markings as specified in
Sec. Sec.  178.3 and 178.503. Section 178.3(a) requires that the
marking must appear on a non-removable component of the packaging.
Section 178.3(a)(5) requires that packagings with a gross mass of 30 kg
(66 pounds) or more must have their original or duplicate specification
markings appear on the top or side of the packaging. Section 178.3(c)
states a packaging that conforms to more than one DOT specification or
UN standard may display each specification marking in its entirety at
each location the markings appear provided the packaging meets the
requirements for each standard or specification. Further, under Sec.
178.503(a)(1), UN standard markings described in paragraphs (a)(1)
through (a)(6) (i.e., UN symbol, identification code, performance
standard, specific gravity or mass, hydrostatic pressure, and year of
manufacture) and (a)(9)(i) (i.e., nominal thickness of packagings
intended for reuse or reconditioning) must appear in a permanent form
on the bottom of each new metal drum with a capacity greater than 100 L
(26 gallons); however, the markings on the top, head or side of these
drums need not be permanent.
    SSCI petitioned PHMSA (P-1371) to modify the marking requirements
under Sec. Sec.  178.3(a)(5) and 178.503(a)(10) for packagings with a
gross mass of more than 30 kg (66 pounds). In its petition, SSCI
requests PHMSA change the HMR to allow the duplicate marking to be a
lesser design standard than that marked on the bottom of the packaging.
For example, a packaging would be tested and marked on the bottom as
meeting the Packing Group I performance standard and the duplicate
marking on the side would indicate that the packaging is certified to
the Packing Group II performance standard. SSCI states some shippers
will not accept a drum marked for PG I materials if they are shipping
PG II or III materials. SSCI says the requested change would reduce the
need to test drums differently for different customers, thereby
reducing potential inventory problems and increasing flexibility for
both manufacturers and shippers. PHMSA proposed the change in the NPRM
to this rulemaking.
    Several commenters, including RRI, DOE, and RIPA, opposed the
proposal. These commenters state potential confusion could result from
the presence of different performance standard markings that do not
appear together in the same location on the same drum. RIPA notes that
dual marking of drums in this manner would be confusing, particularly
because RIPA states the ``official'' certification mark for drums is
the top or side mark, not the bottom mark. Once a drum is filled and in
transportation, RIPA states the only mark that need be accessed to
determine compliance would be the side marking. Thus, the test data for
the drum marked to the PG I standard on the bottom and the PG II or PG
III standard on the side would be required to show that the drum passed
the PG II or PG III performance tests, not the PG I test. Also, if the
top and/or side marking is removed during reconditioning, RIPA suggests
there is no way to accurately trace the standard to which the drum was
originally manufactured.
    A DOT specification or UN standard packaging must be marked as
specified in Sec. Sec.  178.3 and 178.503. Section 178.3(a) specifies
that the marking of DOT specification or UN standard packagings shall
be placed on a non-removable component of the packaging in an
unobstructed area, and shall provide adequate accessibility. The HMR do
not require markings to be placed in a specific location for non-bulk
packages with a gross weight less than 30 kg (66 pounds). For packages
with a gross mass of more than 30 kg (66 pounds), as prescribed in
Sec.  178.3(a)(5), the markings or a duplicate marking must appear on
the top or side of the packaging. In accordance with Sec.
178.503(a)(1), every new metal drum having a capacity of 100 L must
bear the marks described in paragraphs (a)(1) through (a)(6) and
(a)(9)(i) in a permanent form on the bottom. The markings on the top,
head or side of these packagings need not be permanent. In addition, as
specified in Sec.  173.28(b)(4), metal and plastic drums and jerricans
used as single packagings or the outer packagings of composite
packaging more than once must be marked in a permanent manner (able to
withstand the reconditioning process) with the minimum thickness of the
packaging material.
    In this final rule, we are not revising Sec. Sec.  178.3(a)(5) and
178.503(a)(10) to allow a lesser design standard to be marked on the
side or top than that required on the bottom. We agree with the
objecting commenters that this change may result in confusion and this
resulting confusion could impact safety, especially if the correct
marking becomes separated from the container (e.g., if a lid with the
correct marking becomes separated from the container, the container is
filled with a hazardous material that has a higher packing group rating
than that marked on the side or top, or if a filled container is too
heavy to read its highest performance rating marking on its bottom
surface). Further, as stated earlier in this preamble, the HMR already
permits DOT specification and UN standard packagings to bear more than
one specification marking if the packaging meets the requirements of
each design standard or specification, and these markings appear
together and in their entirety at each location they are placed on the
packaging. Section 178.503(c)(2) of the HMR permits a packaging that
has been reconditioned to bear markings that identify a different
performance capability than the original tested design type of the
packaging, and these markings may even be different from those
permanently marked on the bottom of a drum, but these markings may not
identify a greater performance capability than the original tested
design type. This provision permits the reconditioner to permanently
downgrade a packaging (e.g., an ``X'' rated PG I packaging to a ``Y''
PG II packaging) provided the new marking includes the reconditioner's
mark. This practice does not apply to new packagings because dual
marking for these packagings is already authorized under the HMR.

I. UN Symbol Marking

    The Dangerous Goods Advisory Council (DGAC) petitioned PHMSA (P-
1455; Docket PHMSA-2005-22474-2) to allow stenciling of the United
Nations symbol (UN Symbol). The HMR do not currently prohibit
stenciling of the UN symbol; however, the current marking requirements
in Sec.  178.503 discourage stenciling because they do not tolerate
even small gaps in the circle surrounding the letters ``u'' and ``n.''
The only way to stencil the UN symbol without leaving gaps in the
circle is to use a two-step stenciling system. DGAC states that a two-
step process introduces

variability, which often results in a smeared image. In the NPRM, we
proposed revising Sec.  178.503 paragraphs (a)(1) and (e)(1) to include
an objective standard under which small gaps in the UN symbol are
permitted. We proposed restricting the gaps to a size no greater than
ten percent of the circumference of the circle and the number of gaps
to no more than three to ensure that the symbol will remain readily
identifiable.
    Three commenters (RIPA, Charles E. Tudor, and SSCI) support the
proposal. However, the commenters suggest that PHMSA adopt a more
performance-based approach and permit a stenciled mark so long as it is
legible and readily identifiable. Specifying the permissible number,
size, and placement of gaps in the symbol allows any person to
determine whether his or her stencil meets the standard without a case-
by-case regulatory determination by PHMSA. Another commenter, the DGAC,
recommends PHMSA adopt a similar approach to that of the UN
Subcommittee, which considered stenciling the UN symbol mark acceptable
without establishing any specific provisions on stenciling. The DGAC
also supports adding language to permit a stenciled UN mark if it is
identifiable from a normal reading distance, which it states can be
implied from a letter of clarification PHMSA issued on another type of
marking process when it was the Research and Special Programs
Administration. If PHMSA does retain the regulatory language to permit
stenciling, the DGAC recommends that the proposed requirements in
paragraphs Sec.  178.503(e)(1)(ii)(A) through (e)(1)(ii)(D) be removed.
    In this final rule, we are adopting the proposal to permit the UN
symbol to be stenciled on a packaging. In response to Charles E.
Tudor's comments, we are modifying the proposed standard to allow four
gaps in the circle, and we are adopting a total gap size no greater
than 15 percent of the circumference of the circle to accommodate the
fourth break in the circle. Consistent with this revision, in this
final rule we are revising Sec.  178.703 (a)(1)(i) to authorize
stenciling of the UN symbol for IBCs.

J. Design-Type Variations

    Current Sec.  178.601(g)(1) provides exception ``Variation 1'' that
allows a person to substitute an inner receptacle without additional
testing to demonstrate compliance with the applicable performance
standard if it can be determined that the substitute inner packaging,
including its closure, maintains an equivalent level of performance as
the originally tested package. The current requirements do not
specifically require documentation of the methodology used to determine
that a packaging maintains an equivalent level of performance. In the
NPRM, we proposed to revise Sec.  178.601(g)(1) to require the person
making a change to a packaging design under the provisions of Variation
1 to document the methodology used to demonstrate equivalent
performance.
    Air Products and DGAC do not support the proposed amendment to
document an equivalent level of performance. They both state the
proposed text suggests that a detailed analysis would be required and
that such a detailed analysis would negate the benefits currently
derived from using the variation. DGAC states that it is not aware of
any incidents stemming from substituted inner packaging under Variation
1. Air Products also states the proposed amendment will create
disharmony with international standards and constitutes a significant
increase in paperwork requirements. RIPA does not oppose the new
requirement, but asks that PHMSA take steps to make sure the paperwork
burden isn't substantial, and that existing combination packagings that
are already authorized be grandfathered for compliance purposes.
    NAAHAC strongly supports the proposed changes stating ``This
clarifies the process that the package designer/tester must use in
certifying the packaging.'' The C. L. Smith Company supports PHMSA's
proposed changes but suggests we provide more detailed guidance on how
to determine whether or not a packaging meets the ``equivalent level of
performance'' standard, especially for plastic inner packagings which
vary widely in performance based on variations in the type and amount
of ingredients used to make these packagings (e.g., colorants,
additives, and regrind materials), as well as manufacturing processes
and cooling rates. The C. L. Smith Company also asks what kind of data
would be sufficient to show an equivalent level of safety without
having to retest the packaging.
    It is not our intention to impose analysis and documentation
requirements that would negate the benefits currently realized from
utilizing the packaging variations, nor do we believe that a
requirement to document the methodology used to determine equivalent
performance of the variation to the originally tested packaging will
result in a significantly increased regulatory burden. We agree that,
in general, the supporting documentation may be minimal depending on
the degree to which the packaging varies from the original tested
design. In many cases, preparation of the documentation should take as
little as 60 seconds. The type and level of documentation necessary for
demonstration of equivalent level of performance will be based on the
change made to the packaging. In addition, we are not specifying a
format or detailed examples to provide flexibility to the person making
the certification. Documentation may be copies of specification sheets
from the original packaging component and the substituted component
along with a brief explanation of why they are similar and the name of
the individual who made that determination. If the person certifying
compliance with Sec.  178.601(g)(1) has a copy of the original test
report, he or she may hand-write a few sentences on the report itself
in association with the substituted component explaining what was
changed and why the packagings are significantly similar. For example,
if a person is substituting a plastic bottle used as an inner
receptacle with one from a different manufacturer, he or she would
describe why the packages are of similar design; similar thread types,
same or smaller closure, same type and grade of plastic, and who made
these determinations. If the person certifying compliance with the
variation chooses to perform tests on the components as a means of
comparison, he or she could choose to describe the tests and the
results. Because testing is not a requirement for determining an
equivalent level of performance, the test description could be as
detailed as needed by the person certifying compliance for their
complete understanding of the test results.
    Based on comments to the NPRM, in this final rule we are revising
the proposed language. The language in the NPRM was ambiguous regarding
a shipper's responsibilities versus the responsibilities of the
manufacturer. PHMSA did not intend to imply that a manufacturer need
only document changes made in accordance with Variation 1 and shippers
must document changes made to a packaging design in accordance with any
variation. For consistency with Sec.  178.601, PHMSA is clarifying that
the supporting documentation for equivalent level of performance is
only applicable to Variation 1.

K. Selective Testing of Steel Drums

    SSCI petitioned PHMSA (P-1337) to make several changes to the
provisions in Sec.  178.601(g)(8), which apply to the approval of
selective testing of steel drums that differ in minor respects from

a tested type of drum. The changes proposed by SSCI would allow drums
with capacities between 12 and 50 liters (3 and 13 gallons,
respectively) to be excepted from re-testing design types found under
Sec.  178.601(g)(8).
    We are revising Sec.  178.601(g)(8) to allow drums with a capacity
of 12 liters or more to take advantage of the exception from further
design testing under certain conditions. Commenters generally support
this proposal as reducing costs without compromising safety.
    The NPRM proposed a list of changes for which design testing would
be required, such as a change from straight-sided to tapered, a change
to the rated capacity and outside dimensions, a change to the type of
side seam welding or type of steel used, and changes in the locations
in the type, size, and locations of closures. As proposed in the NPRM,
for UN 1A2 drums, a change in the width of lugs or extensions in the
crimp/lug cover would necessitate design testing of the drum. SSCI
suggests that minor modifications dealing with the width of lugs or
extensions in a crimp/lug cover relate to making a package more user-
friendly and should not be considered a different design type so long
as the package performance is repeatable as tested. We disagree.
Historically, modest changes in the size and style of the materials and
closures for a hazardous materials package have produced changes in
that packaging's test results. Therefore, PHMSA is incorporating the
language as proposed.
    PHMSA has issued numerous approvals to manufacturers authorizing
the use of fewer than eighteen test samples. As proposed in the NPRM,
we are revising Sec.  178.601(k) to authorize a lesser quantity of test
samples used in testing of stainless steel drums. We are adding the
provisions found in these approvals to Sec.  178.601(k). PHMSA received
no comments on the proposed language change to this section as proposed
in the NPRM.

L. Revisions to Requirements for IBCs

    In the NPRM, we proposed to revise the lower volumetric limit for
flexible IBCs (FIBCs). In Docket HM-181E (59 FR 38068), published July
26, 1994, we defined ``Body'' as having a lower limit of 450 liters,
thus precluding the manufacture of IBCs with a volume of less than 450
L. In reviewing the HMR, we have identified a gap in the allowable
packaging specifications for flexible packagings with a capacity
between 50 kg and 400 kg (i.e., specification non-bulk bags may not
exceed 50 kg). To remedy this gap, we proposed to allow bags between 50
kg and 400 kg to be manufactured and tested under IBC standards in
Subparts N and O of Part 178. FIBCA, in support of the proposed change,
stated that it is important to address flexible packagings between 50
kg and 400 kg. At this time we are incorporating the change to flexible
IBC allowing smaller IBCs. We received numerous comments in support of
eliminating the limit for all or certain IBCs and Large Packagings. We
are continuing to research to determine if we should eliminate the
lower limit for all IBCs. The comments received in response to this
rulemaking will be taken under consideration if we develop a future
rulemaking.
    We proposed moving the lower limit for IBCs currently in the
definition of ``Body'' in Sec.  178.700 to the individual standards in
Sec. Sec.  178.705 through 178.710. These are more appropriate sections
for the lower limit and will result in better understanding of the
individual IBC specifications. In addition, we proposed to authorize
smaller flexible IBCs in Sec.  178.710 by decreasing the limit to 50
kg. Several commenters supported lowering the quantity limit for
flexible IBCs. Commenters did not remark on moving these provisions to
individual standards. Therefore, we are decreasing the lower limit for
flexible IBCs to 50 kg and retaining the 400 kg lower limit for rigid
IBCs.
    Two commenters (DGAC and FIBCA) oppose a lower volumetric limit for
IBCs; they suggest there should be no lower limit on any IBC design
type. DGAC contends this would provide consistency with the UN Model
Regulations allowing manufacturers to construct IBCs to non-bulk sizes.
For example, a shipper would have the choice between a 4G or an 11G
packaging when choosing a non-bulk box. In the NPRM, we did not propose
to remove the existing lower volumetric limit for IBCs other than
flexible IBCs, but we did invite comment on this issue for discussion
for a future rulemaking. We are not implementing a change in this final
rule to the lower limit of all IBCs. However, we are lowering the limit
on FIBCs as proposed in the NPRM. The change to the language in these
sections does not constitute a change in the HMR. IBCs have always had
a lower volumetric limit under the HMR.
    In the NPRM, we proposed requiring in Sec.  178.810 a second drop
test for IBCs with a capacity of 0.45 cubic meters (15.9 cubic feet) or
less in combination with the proposal to remove the lower limit of 450
liters (119 gallons) and 0.45 cubic meters (15.9 cubic feet) from the
specifications for flexible IBCs. Two commenters (Kurt Colborn and
FIBCA) support the addition of a second drop test requirement for IBCs.
FIBCA states that the second drop test proposed is consistent with
approvals that have been issued by the DOT. One commenter (RIPA) is
opposed to a second drop test because it applies only to flexible IBCs
and, in RIPA's view, is arbitrary and is inadequate from a safety
perspective.
    The additional drop test is not an arbitrary requirement. Non-bulk
packagings are handled in transportation in a different manner than
IBCs. Often loading and unloading of a transport vehicle is performed
without the use of a mechanical handling device such as a fork lift or
hoist. Non-bulk packages are more likely to be dropped while in
transportation. Over the past ten years, when issuing an approval in
accordance with Sec.  178.801(i), we have imposed an additional drop
test for non-bulk capacity IBCs. Therefore, we are incorporating this
additional drop test in Sec.  178.810. The net effect of this revision
is to eliminate the need to obtain an approval.
    We proposed revising the stacking test for IBCs prescribed in Sec.
178.815 by adding a new paragraph (e)(4) to specify the passing
criteria for the dynamic compression test after application of the
required load include (1) no permanent deformation that would render
the IBC or its base pallet unsafe, and (2) maximum deflection may not
exceed one inch. We received no comments on this proposal. We are
adopting this revision in the final rule as a clarification of existing
requirements.
    In the NPRM, we proposed that Sec.  178.819 be revised to clarify
IBCs intended to contain liquids be permitted to use water as the
filling material for a vibration test, and that an IBC sample be placed
on a vibrating platform with a vertical or rotary double-amplitude of
one inch. One commenter (RIPA) addressed this issue. The commenter
supports both proposals. Therefore, we are revising subparagraph (b)(1)
to clarify that water is a suitable test filler material for the
vibration test, and subparagraph (b)(2) to clarify that these testing
provisions are permitted and to provide additional options when
performing the vibration test. In paragraph (b)(2), we clarify that a
vibrating platform may be used that will produce vertical or rotary
double-amplitude.

M. Large Packagings

    Large Packagings are currently authorized for the transportation of

hazardous materials if approved by the Associate Administrator for
Hazardous Materials Safety. In the NPRM, we proposed to remove the
approval requirement and add two new subparts (P and Q) to Part 178 for
the design, construction, and testing of Large Packagings. Adding the
manufacture, testing and use requirements into the HMR provides
additional flexibility and effectively removes the need to apply for an
approval to manufacture and use these packagings in the United States.
The design, construction and testing requirements are based on the UN
Recommendations on the Transport of Dangerous Goods, Thirteenth Revised
Edition (2003); Chapter 6.6 Requirements for the Construction and
Testing of Large Packagings. The regulatory layout and language is
modeled on the current requirements for IBCs. We also proposed a number
of other changes to the HMR to authorize the use of Large Packagings
for the transportation of specific hazardous materials and to specify
operational requirements.
    Special provisions. Section 172.102 defines special provisions for
entries in the Hazardous Materials Table (HMT). In paragraph (c)(4)
introductory text and in Table 1, the HMR authorize the use of IBCs for
entries that reference certain IB Special Provisions (e.g., IB3). To
authorize the use of Large Packagings we proposed to revise paragraph
(c)(4) to include provisions for Large Packagings. In this section, we
also proposed to restrict the use of Large Packagings to Packing Group
III materials, with the exception of the following PG II entries, which
are authorized via a new Special Provision 41: ``UN 2531, Methacrylic
acid, stabilized'' and ``UN 3291, Regulated medical waste, n.o.s.''
These two Packing Group II entries are authorized consistent with the
UN Recommendations. We did not receive any comments on the proposal to
authorize these two Packing Group II materials for transportation in
Large Packagings.
    Consistent with the decision to authorize the use of Large
Packagings we are adopting the revisions to Special Provisions IB3 and
IB8. The revised language specifies that Large Packagings are
authorized when a table entry specifies Special Provision IB3 or IB8.
We are inserting a new Table 3 authorizing Large Packagings and
revising Table 1 so that IB3 and IB8 reference the new Table 3.
    One commenter, (Charles E. Tudor) states that we should authorize
Large Packagings through a separate Special Provision table to allow
for future flexibility. We do not agree that a separate table is
necessary at this time. We may reassess the need depending on future
rulemaking actions in this area.
    Placarding. General provisions for placarding of bulk packagings
require bulk packagings, including IBCs, to be placarded on each side
and each end for a total of four placards. In accordance with an
exception in Sec.  172.514, a shipper may choose to placard an IBC and
certain other bulk packagings on two opposite sides or label the IBC in
accordance with Part 172, Subpart E. In this final rule, we are adding,
as proposed in the NPRM, Large Packagings to the types of packagings
that may be placarded on only two opposite sides or labeled instead of
placarded. We received no comments regarding the proposed revisions to
this section.
    Operational requirements. In the NPRM, we proposed a new Sec.
173.36 to specify operational requirements for the use of Large
Packagings. This section addresses the Large Packaging filling limits
and procedures. Specifically, we proposed to require Large Packagings
to be stowed with closures upright for liquid cargoes, and inner
packagings in Large Packagings to be packed, secured, and cushioned to
prevent breakage or leakage during transportation. In addition, we
proposed conditions under which Large Packagings may be reused. We also
proposed to require that no hazardous material be on the outside of
Large Packagings during transportation, and that Large Packagings be
securely fastened to or contained within a transport unit. Further, we
proposed to prohibit the use of inner packagings made of paper or fiber
in Large Packagings used to transport solids that could become liquid
during transportation, and we proposed to require inner packagings in
Large Packagings used to transport liquids to be resistant to internal
pressure releases likely to be encountered during transportation.
Finally, we proposed to limit the capacity of Large Packagings used to
transport hazardous materials to a maximum of 3 cubic meters, and we
proposed conditions under which Large Packagings could be used to
transport more than one hazardous material.
    DGAC and CropLife oppose the new Sec.  173.36 for Large Packagings
on the grounds that they would prefer Large Packagings be treated as
they are in the UN Model Regulations.
    All the provisions for Large Packagings in this rulemaking that
differ from international requirements are consistent with the current
HMR provisions for non-bulk combination packagings and IBCs. We do not
believe that Large Packagings should be addressed differently than IBCs
in the HMR. In the HMR we spell out specific standards that must be
met. These standards include requirements that a package must be
inspected prior to offering for transportation to ensure that there are
no leaks, that no hazardous material is on the external surface of the
packaging, and that the package does not have sharp or protruding
objects that may puncture it or other packagings in transport. The
intention of this rulemaking in regard to Large Packagings was not to
make a major change in packaging requirements, but rather to
incorporate Large Packagings into the HMR. IBC and non-bulk packaging
standards are based on the UN Model regulations with minor alterations
for safety and consistency with domestic practices. In this final rule,
we are adopting the operational requirements proposed in the NPRM.
    Two commenters (DGAC and APE) state that the vibration testing
requirement for all Large Packagings should be a ``capability'' rather
than an actual test because the inner packagings perform a cushioning
function. APE also objects to requiring a vibration test for Large
Packagings, stating this represents an additional cost burden for the
U.S. industry as compared to their international competitors because
the UN Recommendations do not require that these packagings be subject
to this test, especially those containing inner packagings and
articles. A Large Packaging, other than a flexible Large Packaging, is
similar in design to an IBC, and subject to similar packaging design
stresses and opportunities for failure. We believe the vibration test
is an essential component for assessing the integrity of an IBC
packaging and a Large Packaging, therefore, in this final rule are
requiring a Large Packaging to pass a vibration test as well. We agree
with the commenters that, like an IBC, a Large Packaging may be used as
a single or combination packaging, and that inner packagings, when
used, may provide some cushioning. However, the degree to which these
packagings can provide cushioning depends greatly on their structure
and content, which can vary greatly. Because the use of inner
packagings is not mandatory in Large Packagings, and because inner
packagings cannot be relied upon to provide a consistent level of
cushioning, we believe the vibration test is necessary to assist us
with determining the performance capability of a Large Packaging in
transportation. Therefore, in this final rule we are requiring the
vibration test to be performed and

documented for Large Packagings, other than flexible Large Packagings.
    In the NPRM, we proposed to revise Sec.  173.62 to authorize Large
Packagings for the transportation of certain explosives. One commenter
(Charles E. Tudor) suggests that the HMR should authorize the use of
Large Packagings to transport additional explosives that have a very
low mass. APE urges PHMSA to permit consumer fireworks be transported
in UN 50G Large Packagings. The commenters did not submit safety data
or information to demonstrate that consumer fireworks or other low-mass
explosives may be transported safely in Large Packagings. Absent such
data, we cannot support a broad authorization for the use of Large
Packagings to transport explosive materials. Therefore, in this final
rule, we are adopting the provisions for the use of Large Packagings
for the transportation of certain explosives without change.
    In the NPRM, we proposed to amend Sec. Sec.  173.240 through
173.242 to authorize Large Packagings for the transportation of certain
hazardous materials and to clarify that Large Packagings are not
authorized for Packing Group I or II materials. We received no comments
on the proposed changes. Therefore, we are adopting them without change
in this final rule.
    As indicated above, we proposed to add Subparts P and Q to Part 178
to specify design, construction, and testing requirements for Large
Packagings. Most commenters support the addition of these subparts.
Therefore, we are adopting them as proposed in the NPRM.

N. Additional Revisions in This Final Rule

    Under Docket HM-215G (69 FR 76043), published on December 20, 2004,
we revised Sec.  173.249(c) to authorize the return of portable tanks
containing a residue of bromine. In this final rule, we are revising
paragraph (b) to authorize the transportation of bromine residue in
cargo tanks to facilitate the return of empty cargo tanks with a
bromine residue. PHMSA received no comments on the proposed language
change to this section; in this final rule, it is adopted as proposed
in the NPRM.
    We are changing the section heading and paragraph (a) of Sec.
174.63, which describes rail specific operational requirements for
Portable tanks, IM portable tanks, IBCs, cargo tanks, and multi-unit
tank car tanks, to indicate that the requirements in this section also
apply to Large Packagings. PHMSA received no comments on the proposed
language change to this section. Therefore, in this final rule, it is
adopted as proposed in the NPRM.

V. Rulemaking Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of 49 U.S.C. 5103(b),
which 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 adopts regulations to enhance the safe and secure
transportation of hazardous materials by aircraft in intrastate,
interstate, and foreign commerce. This notice revises miscellaneous HMR
requirements applicable to hazardous materials packaging.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is a non-significant regulatory action under
section 3(f) of Executive Order 12866 and, therefore, is not subject to
formal review by the Office of Management and Budget. This final rule
is considered non-significant under the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11034).
    The cost impacts of the changes in this rulemaking are expected to
be minimal. Many of the amendments in this rulemaking are intended to
clarify current regulatory requirements specific to the construction
and use of packagings and do not impose any additional costs on the
regulated community. The most significant changes in the final rule
relate to: (1) The manufacture, testing and use of a new packaging
category called ``Large Packagings''; (2) the information required to
be contained in a packaging test report prepared by the person
certifying compliance with the HMR; (3) requiring shippers to maintain
a copy of the manufacture notification already provided to them by the
packaging manufacture in accordance with current regulations; and (4)
providing guidance to packaging manufacturers on how to instruct
shippers to effectively assemble and close packagings.
    A ``Large Packaging'' is a type of packaging design authorized by
the UN Recommendations but currently only authorized in the HMR through
an approval. Adding the manufacture, testing and use requirements for
this packaging into the HMR provides additional flexibility and
effectively removes the need to apply for an approval to manufacture
and use these packagings in the United States, resulting in a reduction
in cost to the regulated community. This final rule also includes
amendments to require Large Packaging manufacturers to keep records for
the qualification of each design type and for each design
requalification. We expect this recordkeeping requirement will apply to
fewer than 10 regulated entities. Thus, the overall impact of this
requirement will be minimal and will be more than offset by the
additional flexibility and administrative cost savings provided by the
elimination of current approval provisions.
    Currently under the HMR, a person certifying that a packaging meets
the construction and testing requirements for UN standard packaging
must retain documentation relative to the: (1) Name and address of the
packaging manufacture and testing facility; (2) material of
construction; (3) capacity, dimensions, closures, and method of
closures; and (4) test results. However, all of the record retention
requirements associated with UN standard packaging certification are
currently spread out throughout the HMR. Therefore, this amendment
should not result in any substantial cost impacts on the regulated
community.
    We are also revising the HMR to require shippers to maintain a copy
of the manufacture notification provided to them by the packaging
manufacture, and to provide guidance to packaging manufacturers on how
to instruct shippers to effectively assemble and close packagings. As a
result of comments to the notice of proposed rulemaking, these
amendments have been modified to allow more flexibility to packaging
manufacturers and to allow for packagings with a simpler means of
closure for the end user. Therefore, these amendments should not result
in significant cost impacts to the regulated community.
    This final rule is designed to increase the clarity of the HMR,
thereby enhancing voluntary compliance with existing regulatory
requirements while reducing compliance costs. Enhanced voluntary
compliance by the regulated community improves overall safety. In
addition, we anticipate many changes contained in this rule will have
economic benefits. For example, the final rule broadens the scope of
several packaging exceptions, which manufacturers and shippers may use
to reduce transportation costs. Moreover, the incorporation of Large
Packaging specifications into the HMR will eliminate the need for
shippers to obtain an approval from PHMSA to use Large Packagings, thus
increasing flexibility

and reducing transportation costs. Finally, incorporation of the Large
Packaging specifications into the HMR and adoption of other provisions
intended to align the HMR with international standards will promote
better understanding of the regulations, increased industry compliance,
and the smooth flow of hazardous materials in transportation.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local, and Indian tribe requirements, but
does not impose any regulation with 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 Materials Transportation Law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting State, local, and Indian tribe requirements on the following
subjects:
    (1) The designation, description, and classification of hazardous
materials;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
    This final rule addresses covered subject items 1, 2, 3, and 5
above. This rule preempts any State, local, or Indian tribe
requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' as the Federal
requirements.
    Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The 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.
This effective date of preemption is 90 days after the 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 direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.

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.
An agency must conduct a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule amends miscellaneous packaging provisions in the HMR to
clarify provisions based on our own initiatives and also on petitions
for rulemaking. While maintaining safety, it relaxes certain
requirements. Many of the amendments in this rulemaking are intended to
clarify current regulatory requirements specific to the construction
and use of non-bulk and bulk packagings and do not impose any
additional costs on small entities.
    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. The changes in
this final rule will enhance safety, and I certify that this proposal,
if promulgated, would not have a significant economic impact on a
substantial number of small entities.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It will not result in costs of
$120.7 million or more, in the aggregate, to any of the following:
State, local, or Native American tribal governments, or the private
sector.

G. Paperwork Reduction Act

    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. PHMSA currently has approved
information collections under OMB Control No. 2137-0018, ``Inspection
and Testing of Portable Tanks and Intermediate Bulk Containers,''
expiring on October 31, 2010; OMB Control No. 2137-0034, ``Hazardous
Materials Shipping Papers and Emergency Response Information,''
expiring on May 31, 2011; OMB Control No. 2137-0557, ``Approvals for
Hazardous Materials,'' expiring on June 30, 2011; and OMB Control No.
2137-0572, ``Testing Requirements for Non-Bulk Packaging,'' expiring on
March 31, 2010. This final rule will result in an increase in annual
burden and costs under OMB Control No. 2137-0034 and OMB Control No.
2137-0572.
    PHMSA will submit revised information collections to the Office of
Management and Budget (OMB) for approval based on the amendments
adopted in this final rule. Specifically, this final rule identifies an
increase in annual burden and costs under OMB Control No. 2137-0018
which is being offset by a reduction in burden under OMB Control No.
2137-0557 because of the conversion of several approval provisions for
packagings into the HMR. These amendments will necessitate a revision
to the title of OMB Control No. 2137-0018 to ``Inspection and Testing
of Portable Tanks, Intermediate Bulk Containers, and Large
Packagings.'' In addition, due to comments received in response to the
notice of proposed rulemaking, we have revised the total information
collection burden for OMB Control No. 2137-0034 and OMB Control No.
2137-0572 as follows:
OMB Control No. 2137-0034, ``Hazardous Materials Shipping Papers and
Emergency Response Information''
    Total Annual Number of Respondents: 250,000.
    Total Annual Responses: 260,000,000.
    Total Annual Burden Hours: 6,500,000.
    Total Annual Burden Cost: $6,510,000.
OMB Control No. 2137-0572, ``Testing Requirements for Non-Bulk
Packaging''
    Total Annual Number of Respondents: 5,010.
    Total Annual Responses: 15,500.
    Total Annual Burden Hours: 32,500.
    Total Annual Burden Cost: $812,500.
    Please direct your requests for a copy of this information
collection to

Deborah Boothe (PHH-11) or T. Glenn Foster (PHH-12), Office of
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety
Administration (PHMSA), U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.

H. 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 may be used to cross-reference this action with the
Unified Agenda.

I. Environmental Assessment

    The National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4375,
requires federal agencies to analyze regulatory actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order federal agencies to conduct an environmental review considering
(1) The need for the action, (2) alternatives to the action, (3)
environmental impacts of the action and alternatives, and (4) the
agencies and persons consulted during the consideration process. 40 CFR
1508.9(b).
    Purpose and Need. As discussed elsewhere in this preamble, this
final rule is intended to clarify existing requirements, enhance
flexibility, and reduce compliance burdens. The revisions will reduce
confusion and promote safety.
    Alternatives. PHMSA considered the following alternatives:
    No action--Under this alternative, we would not attempt to revise
HMR packaging requirements. This alternative does not address the
problems we have identified related to unclear or confusing regulations
nor does it reduce regulatory burdens and promote flexibility. Thus, it
was not selected.
    Adopt revisions to the HMR packaging regulations to clarify
requirements and reduce regulatory burdens--This is the selected
alternative. It accomplishes our regulatory reform goals while
enhancing understanding of and compliance with the HMR.
    Analysis of Environmental Impacts. 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 material. The
quality, damage resistance, and performance standards of the packaging
in each packing group are appropriate for the hazards of the material
transported.
    Releases of hazardous materials, whether caused by accident or
deliberate sabotage, can result in explosions or fires. Radioactive,
toxic, infectious, or corrosive hazardous materials can have short- or
long-term exposure effects on humans or the environment. Generally,
however, the hazard class definitions are focused on the potential
safety hazards associated with a given material or type of material
rather than the environmental hazards of such materials.
    Under the HMR, hazardous materials may be 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, package failures, loading, unloading, collisions, handling
problems, or deliberate sabotage. The release of hazardous materials
can cause the loss of ecological resources 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/decontamination of the accident scene.
    We have reviewed the risks associated with adopting the
miscellaneous amendments in this rule. The amendments in this
rulemaking are intended to clarify existing requirements concerning the
construction and use of non-bulk and bulk packagings, such as requiring
the shipper to maintain a copy of a hazmat packaging's closure
instructions for 365 days (unless the instructions are permanently
embossed or printed on the packaging) and adopting requirements for UN
standard Large Packagings (removing the need for an approval). The
amendments also involve minor changes to existing regulations that will
permit additional flexibility, such as permitting the UN symbol to be
stenciled on packagings, clarifying definitions, and not requiring
international plastic packagings to bear a domestic mark currently
required under Sec.  172.313(b). The requirements in this rulemaking
will reduce confusion and enhance voluntary compliance, thereby
reducing the likelihood of deaths, injuries, property damage, hazardous
materials release, and other adverse consequences of incidents
involving the transportation of hazardous materials. We have determined
there will be no significant environmental impacts associated with this
final rule.
    Consultation and Public Comment. As discussed above, PHMSA
published an NPRM to solicit public comments on our proposal. A total
of 24 persons submitted comments, including industry associations,
shippers, carriers, federal and State agencies, and private citizens.

J. Privacy Act

    Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, 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 (Volume 65, Number 70; Pages 19477-78).

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.

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, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.

49 CFR Part 174

    Hazardous materials transportation, Radioactive materials, Railroad
safety.

49 CFR Part 178

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

0
In consideration of the foregoing, we are amending 49 CFR Chapter I,
Subchapter C as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub L. 104-134
section 31001.

0
1. In Sec.  171.8:
0
a. The definitions for ``Reconditioned packaging,'' ``Remanufactured
packaging,'' ``Reused packaging,'' and ``Strong outer packaging'' are
added in appropriate alphabetical order.
0
b. The definition for ``Strong outside container'' is removed.
0
c. The introductory text of the definition for ``Bulk packaging'' is
revised.
0
d. The definition for ``Large packaging'' is revised.
    The additions and revisions read as follows:

Sec.  171.8  Definitions and abbreviations.

* * * * *
    Bulk packaging means a packaging, other than a vessel or a barge,
including a transport vehicle or freight container, in which hazardous
materials are loaded, and which has:
* * * * *
    Large packaging means a packaging that--
    (1) Consists of an outer packaging that contains articles or inner
packagings;
    (2) Is designated for mechanical handling;
    (3) Exceeds 400 kg net mass or 450 liters (118.9 gallons) capacity;
    (4) Has a volume of not more than 3 cubic meters (m\3\) (see Sec.
178.801(i) of this subchapter); and
    (5) Conforms to the requirements as specified in Sec.  173.36, and
subparts P and Q of part 178 of this subchapter, as applicable.
* * * * *
    Reconditioned packaging. See Sec.  173.28 of this subchapter.
* * * * *
    Remanufactured packagings. See Sec.  173.28 of this subchapter.
* * * * *
    Reused packaging. See Sec.  173.28 of this subchapter.
* * * * *
    Strong outer packaging means the outermost enclosure that provides
protection against the unintentional release of its contents. It is a
packaging that is sturdy, durable, and constructed so that it will
retain its contents under normal conditions of transportation. In
addition, a strong outer packaging must meet the general packaging
requirements of subpart B of part 173 of this subchapter but need not
comply with the specification packaging requirements in part 178 of the
subchapter. For transport by aircraft, a strong outer packaging is
subject to Sec.  173.27 of this subchapter. The terms ``strong outside
container'' and ``strong outside packaging'' are synonymous with
``strong outer packaging.''
* * * * *

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

0
3. The authority citation for part 172 continues to read as follows:

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

0
4. Section 172.101, the Hazardous Materials Table is amended to read as
follows:
0
a. The entry ``Azodicarbonamide,'' in Column (8B) the reference ``212''
is removed and ``223'' is added in its place, and in Column (10B) the
reference ``12'' is removed and ``2'' is added in its place.
0
b. The entry ``Isosorbide-5-mononitrate,'' in Column (7) the reference
Special Provision ``159'' is added in the correct numeric order, and in
Column (8B) the reference ``213'' is removed and ``223'' is added in
its place.
0
c. The entry ``Regulated medical waste, n.o.s. or Clinical waste,
unspecified, n.o.s. or (BIO)Medical waste, n.o.s., or Biomedical waste,
n.o.s. or Medical waste, n.o.s.,'' in Column (7) the reference for
Special Provision ``41'' is added before ``A13''.
0
d. The entry ``Methacrylic acid, stabilized,'' in Column (7) the
reference for Special Provision ``41'' is added before ``IB2''.
0
e. In Column (8c), for the following entries, the word ``None'' is
removed and ``62'' is added in its place:

------------------------------------------------------------------------
                   Column (2) entry                     Column (4) entry
------------------------------------------------------------------------
Ammunition smoke, white phosphorus with burster,                  UN0245
 expelling charge, or propelling charge...............
Ammunition smoke, white phosphorus with burster,                  UN0246
 expelling charge, or propelling charge...............
Ammunition, illuminating with or without burster,                 UN0171
 expelling charge or propelling charge................
Ammunition, illuminating with or without burster,                 UN0254
 expelling charge or propelling charge................
Ammunition, illuminating with or without burster,                 UN0297
 expelling charge or propelling charge................
Ammunition, incendiary with or without burster,                   UN0300
 expelling charge or propelling charge................
Ammunition, incendiary with or without burster,                   UN0009
 expelling charge, or propelling charge...............
Ammunition, incendiary with or without burster,                   UN0010
 expelling charge, or propelling charge...............
Ammunition, incendiary, white phosphorus, with                    UN0243
 burster, expelling charge or propelling charge.......
Ammunition, incendiary, white phosphorus, with                    UN0244
 burster, expelling charge or propelling charge.......
Ammunition, practice..................................            UN0362
Ammunition, practice..................................            UN0488
Ammunition, proof.....................................            UN0363
Ammunition, smoke with or without burster, expelling              UN0015
 charge or propelling charge..........................
Ammunition, smoke with or without burster, expelling              UN0016
 charge or propelling charge..........................
Ammunition, smoke with or without burster, expelling              UN0303
 charge or propelling charge..........................
Ammunition, tear-producing with burster, expelling                UN0018
 charge or propelling charge..........................
Ammunition, tear-producing with burster, expelling                UN0019
 charge or propelling charge..........................
Ammunition, tear-producing with burster, expelling                UN0301
 charge or propelling charge..........................
Bombs, photo-flash....................................            UN0038

Bombs, photo-flash....................................            UN0039
Bombs, photo-flash....................................            UN0299
Bombs, with bursting charge...........................            UN0034
Bombs, with bursting charge...........................            UN0035
Cartridges for weapons, inert projectile..............            UN0328
Cartridges for weapons, with bursting charge..........            UN0006
Cartridges for weapons, with bursting charge..........            UN0321
Cartridges for weapons, with bursting charge..........            UN0412
Cartridges, oil well..................................            UN0277
Cartridges, oil well..................................            UN0278
Cartridges, power device..............................            UN0275
Cartridges, power device..............................            UN0276
Cartridges, power device..............................            UN0323
Cartridges, power device..............................            UN0381
Charges, demolition...................................            UN0048
Charges, depth........................................            UN0056
Cutters, cable, explosive.............................            UN0070
Fracturing devices, explosive, without detonators for             UN0099
 oil wells............................................
Mines with bursting charge............................            UN0137
Mines with bursting charge............................            UN0138
Projectiles, inert with tracer........................            UN0345
Projectiles, inert, with tracer.......................            UN0424
Projectiles, inert, with tracer.......................            UN0425
Projectiles, with burster or expelling charge.........            UN0346
Projectiles, with burster or expelling charge.........            UN0347
Projectiles, with burster or expelling charge.........            UN0434
Projectiles, with burster or expelling charge.........            UN0435
Projectiles, with bursting charge.....................            UN0168
Projectiles, with bursting charge.....................            UN0169
Projectiles, with bursting charge.....................            UN0344
Release devices, explosive............................            UN0173
Rivets, explosive.....................................            UN0174
Rocket motors.........................................            UN0186
Rocket motors.........................................            UN0280
Rocket motors.........................................            UN0281
Rockets, with bursting charge.........................            UN0181
Rockets, with bursting charge.........................            UN0182
Rockets, with expelling charge........................            UN0436
Rockets, with expelling charge........................            UN0437
Rockets, with expelling charge........................            UN0438
Rockets, with inert head..............................            UN0183
Rockets, with inert head..............................            UN0502
Sounding devices, explosive...........................            UN0204
Sounding devices, explosive...........................            UN0296
Sounding devices, explosive...........................            UN0374
Sounding devices, explosive...........................            UN0375
Torpedoes with bursting charge........................            UN0329
Torpedoes with bursting charge........................            UN0451
Warheads, rocket with burster or expelling charge.....            UN0370
Warheads, rocket with bursting charge.................            UN0286
Warheads, rocket with bursting charge.................            UN0287
Warheads, torpedo with bursting charge................            UN0221
------------------------------------------------------------------------

* * * * *

0
1. In Sec.  172.102:
0
a. In paragraph (c)(1), a new Special provision 41 is added in
appropriate numerical order.
0
b. In paragraph (c)(4), the introductory paragraph is revised.
0
c. In paragraph (c)(4), Table 1, the entries IB3 and IB8 are revised,
and the headings for the table and first and second columns of the
table are revised.
0
d. In paragraph (c)(4), Table 2, the first column heading is revised to
read ``IP Code,'' and the second column heading is removed.
0
e. In paragraph (c)(4), a new Table 3 is added.
    The additions and revisions read as follows:

Sec.  172.102  Special provisions.

* * * * *
    (c) * * *
    (1) * * *
Code/Special Provisions
* * * * *
    41 This material at the Packing Group II hazard criteria level may
be transported in Large Packagings.
* * * * *
    (4) IB Codes and IP Codes. These provisions apply only to
transportation in IBCs and Large Packagings. Table 1 authorizes IBCs
for specific proper shipping names through the use of IB Codes assigned
in the Sec.  172.101 table of this subchapter. Table 2 defines IP Codes
on the use of IBCs that are assigned to specific commodities in the
Sec.  172.101 Table of this subchapter. Table 3 authorizes Large
Packagings for specific proper shipping names through the use of IB
Codes assigned in the Sec.  172.101 table of this subchapter. Large
Packagings are authorized for the Packing Group III entries of specific
proper shipping names when either Special Provision IB3 or IB8 is
assigned to that entry in the Sec.  172.101 Table. When no IB code is
assigned in the

Sec.  172.101 Table for a specific proper shipping name, or in Sec.
173.225(e) Organic Peroxide Table for Type F organic peroxides, use of
an IBC or Large Packaging for the material may be authorized when
approved by the Associate Administrator. The letter ``Z'' shown in the
marking code for composite IBCs must be replaced with a capital code
letter designation found in Sec.  178.702(a)(2) of this subchapter to
specify the material used for the other packaging. Tables 1, 2, and 3
follow:

                            Table 1-IB Codes
                          [IBC authorizations]
------------------------------------------------------------------------
                IB code                          Authorized IBCs
------------------------------------------------------------------------

                              * * * * * * *
IB3...................................  Authorized IBCs: Metal (31A, 31B
                                         and 31N); Rigid plastics (31H1
                                         and 31H2); Composite (31HZ1 and
                                         31HA2, 31HB2, 31HN2, 31HD2 and
                                         31HH2). Additional Requirement:
                                         Only liquids with a vapor
                                         pressure less than or equal to
                                         110 kPa at 50 [deg]C (1.1 bar
                                         at 122 [deg]F), or 130 kPa at
                                         55 [deg]C (1.3 bar at 131
                                         [deg]F) are authorized, except
                                         for UN2672 (also see Special
                                         Provision IP8 in Table 3 for
                                         UN2672). For authorized Large
                                         Packagings, see Table 3.

                              * * * * * * *
IB8...................................  Authorized IBCs: Metal (11A,
                                         11B, 11N, 21A, 21B, 21N, 31A,
                                         31B and 31N); Rigid plastics
                                         (11H1, 11H2, 21H1, 21H2, 31H1
                                         and 31H2); Composite (11HZ1,
                                         11HZ2, 21HZ1, 21HZ2, 31HZ1 and
                                         31HZ2); Fiberboard (11G);
                                         Wooden (11C, 11D and 11F);
                                         Flexible (13H1, 13H2, 13H3,
                                         13H4, 13H5, 13L1, 13L2, 13L3,
                                         13L4, 13M1 or 13M2). For
                                         authorized Large Packagings,
                                         see Table 3.

                              * * * * * * *
------------------------------------------------------------------------

* * * * *

                                                Table 3--IB Codes
                                        [Large packaging authorizations]
----------------------------------------------------------------------------------------------------------------
                  IB3                      Authorized Large Packagings (LIQUIDS)  (PG III materials only) \ 2\
----------------------------------------------------------------------------------------------------------------
Inner packagings:                        Large outer packagings:
    Glass 10 liter.....................  steel (50A).
    Plastics 30 liter..................  aluminum (50B).
    Metal 40 liter.....................  metal other than steel or aluminum (50N).
                                            rigid plastics (50H).
                                            natural wood (50C).
                                            plywood (50D).
                                            reconstituted wood (50F).
                                            rigid fiberboard (50G).
----------------------------------------------------------------------------------------------------------------

                  IB8                       Authorized Large Packagings (SOLIDS)  (PG III materials only) \2\
----------------------------------------------------------------------------------------------------------------
Inner packagings:                        Large outer packagings:
    Glass 10 kg........................     steel (50A).
    Plastics 50 kg.....................     aluminum (50B).
    Metal 50 kg........................     metal other than steel or aluminum (50N).
    Paper 50 kg........................     flexible plastics (51H). \1\
    Fiber 50 kg........................     rigid plastics (50H).
                                            natural wood (50C).
                                            plywood (50D).
                                            reconstituted wood (50F).
                                            rigid fiberboard (50G).
----------------------------------------------------------------------------------------------------------------
\1\ Flexible plastic (51H) Large Packagings are only authorized for use with flexible inner packagings.
\2\ Except when authorized under Special Provision 41.

* * * * *

0
6. In Sec.  172.514, paragraphs (c)(3) and (c)(4) are revised and a new
paragraph (c)(5) is added to read as follows:

Sec.  172.514  Bulk packagings.

* * * * *
    (c) * * *
    (3) A bulk packaging other than a portable tank, cargo tank, or
tank car (e.g., a bulk bag or box) with a volumetric capacity of less
than 18 cubic meters (640 cubic feet);
    (4) An IBC; and
    (5) A Large Packaging as defined in Sec.  171.8 of this subchapter.

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

0
7. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

Sec.  173.4  [Amended]

0
8. In Sec.  173.4, paragraph (a)(5), the wording ``strong outside
packaging'' is removed and the wording ``strong outer packaging'' is
added in its place.

Sec.  173.4b  [Amended]

0
9. In Sec.  173.4b, paragraph (a)(4), the wording ``strong outside
packaging'' is removed and the wording ``strong outer packaging'' is
added in its place.

Sec.  173.7  [Amended]

0
10. In Sec.  173.7, paragraph (c), the first sentence, the wording
``strong outside packaging'' is removed and the wording ``strong outer
packaging'' is added in its place.

0
11. In Sec.  173.22, in paragraph (a)(4), three new sentences are added
to the end of the paragraph to read as follows:

Sec.  173.22  Shipper's responsibility.

    (a) * * *
    (4) * * * A person must maintain a copy of the manufacturer's
notification, including closure instructions (see Sec.  178.2(c) of
this subchapter) unless permanently embossed or printed on the
packaging. When applicable, a person must maintain a copy of any
supporting documentation for an equivalent level of performance under
the selective testing variation in Sec.  178.601(g)(1) of this
subchapter. A copy of the notification, unless permanently embossed or
printed on the packaging, and supporting documentation, when
applicable, must be made available for inspection by a representative
of the Department upon request for 365 days after offering the package
for transportation.
* * * * *

0
12. In Sec.  173.28, in paragraph (a), a third sentence is added and,
in paragraph (f), a third sentence is added to read as follows:

Sec.  173.28  Reuse, reconditioning, and remanufacture of packagings.

    (a) * * * Packagings not meeting the minimum thickness requirements
prescribed in paragraph (b)(4)(i) of this section may not be reused,
reconditioned, or remanufactured for reuse.
* * * * *
    (f) * * * Drums or jerricans not meeting the minimum thickness
requirements prescribed in paragraph (b)(4)(i) of this section may not
be reused, reconditioned, or remanufactured for reuse.

0
13. In Sec.  173.35, paragraph (h)(2), introductory paragraph, is
revised to read as follows:

Sec.  173.35  Hazardous materials in IBCs.

* * * * *
    (h) * * *
    (2) Liquids having a vapor pressure greater than 110 kPa (16 psig)
at 50 [deg]C (122 [deg]F) or 130 kPa (18.9 psig) at 55 [deg]C (131
[deg]F) may not be transported in metal IBCs.
* * * * *

0
14. New Sec.  173.36 is added to read as follows:

Sec.  173.36  Hazardous materials in Large Packagings.

    (a) No person may offer or accept a hazardous material for
transportation in a Large Packaging except as authorized by this
subchapter. Except as otherwise provided in this subchapter, no Large
Packaging may be filled with a Packing Group I or II material. Each
Large Packaging used for the transportation of hazardous materials must
conform to the requirements of its specification and regulations for
the transportation of the particular commodity.
    (b) Packaging design. (1) Inner packaging closures. A Large
Packaging containing liquid hazardous materials must be packed so that
closures on inner packagings are upright.
    (2) Flexible Large Packagings. Flexible Large Packagings (e.g.,
51H) are only authorized for use with flexible inner packagings.
    (3) Friction. The nature and thickness of the outer packaging must
be such that friction during transportation is not likely to generate
an amount of heat sufficient to dangerously alter the chemical
stability of the contents.
    (4) Securing and cushioning. Inner packagings of Large Packagings
must be packed, secured and cushioned to prevent their breakage or
leakage and to control their shifting within the outer packaging under
conditions normally incident to transportation. Cushioning material
must not be capable of reacting dangerously with the contents of the
inner packagings or having its protective properties significantly
weakened in the event of leakage.
    (5) Metallic devices. Nails, staples and other metallic devices
must not protrude into the interior of the outer packaging in such a
manner as to be likely to damage inner packagings or receptacles.
    (c) Initial use and reuse of Large Packagings. A Large Packaging
may be reused. If an inner packaging is constructed of paper or
flexible plastic, the inner packaging must be replaced before each
reuse. Before a Large Packaging is filled and offered for
transportation, the Large Packaging must be given an external visual
inspection, by the person filling the Large Packaging, to ensure:
    (1) The Large Packaging is free from corrosion, contamination,
cracks, cuts, or other damage which would render it unable to pass the
prescribed design type test to which it is certified and marked; and
    (2) The Large Packaging is marked in accordance with requirements
in Sec.  178.910 of this subchapter. Additional marking allowed for
each design type may be present. Required markings that are missing,
damaged or difficult to read must be restored or returned to original
condition.
    (d) During transportation--
    (1) No hazardous material may remain on the outside of the Large
Packaging; and
    (2) Each Large Packaging must be securely fastened to or contained
within the transport unit.
    (e) Each Large Packaging used for transportation of solids which