Hazardous Materials: Adoption of Special Permits (MAP-21) (RRR)

AGENCY:

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

ACTION:

Notice of Proposed Rulemaking (NPRM)

SUMMARY:

As required by the Moving Ahead for Progress in the 21st Century Act (MAP-21), the Pipeline and Hazardous Materials Safety Administration is proposing to amend the Hazardous Materials Regulations to adopt provisions contained in certain widely-used or long-standing special permits that have an established safety record. The proposed revisions are intended to provide wider access to the regulatory flexibility offered in special permits and eliminate the need for numerous renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety. PHMSA conducted an extensive analysis of all active special permits and, in this rulemaking, those special permits deemed suitable are being proposed for adoption. PHMSA is inviting all interested persons to provide comments on both those special permits deemed suitable and proposed to be adopted into the HMR and those that are deemed not suitable for adoption. In addition, PHMSA is also requesting comments on a proposed requirement for special permit applicants to include regulatory text in their applications, when appropriate.

DATES:

Comments must be received by March 31, 2015.

ADDRESSES:

You may submit comments identified by the docket number PHMSA-2013-0042 (HM-233F) by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: 1-202-493-2251.
• Mail: Docket Management System; U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
• Hand Delivery: To the Docket Management System; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Instructions: All submissions must include the agency name and docket number for this notice at the beginning of the comment. To avoid duplication, please use only one of these four methods. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide. All comments received will be posted without change to the Federal Docket Management System (FDMS), including any personal information.

Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see ADDRESSES).

Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT:

Donald Burger, Office of Hazardous Materials Safety, Approvals and Permits Division, (202) 366-4535 or T. Glenn Foster, Office of Hazardous Materials Safety, Standards and Rulemaking Division, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

III. Overview

A. Special Permits Program

B. MAP-21 Legislation

C. SP Conversion Project Methodology

D. Petitions for Rulemaking

E. SPs Evaluation Results

F. Request for Comments

IV. Section-by-Section Review by Topic Area

A. Cylinders—General

B. Cylinders—Non-Destructive Testing/Aerosols

C. Cargo Tanks/Rail Cars/Portable Tanks

D. Operational Air/Vessel

E. Operational Highway/Rail/Shipper/Other

F. Non-Bulk Packaging Specifications/IBCs

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for this Rulemaking

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

C. Executive Order 13132

D. Executive Order 13175

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

F. Paperwork Reduction Act

G. Regulatory Identifier Number (RIN)

H. Unfunded Mandates Reform Act

I. Executive Order 13609 and International Trade Analysis

J. Environmental Assessment and NEPA Analysis

K. Privacy Act

L. National Technology Transfer and Advancement Act

VI. List of Subjects

I. Executive Summary

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) by adopting requirements contained in 98 existing special permits (SP). This proposal is based on our review of all active SPs as of January 1, 2013, in which we identified 98 SPs containing requirements which appear suitable for adoption into the HMR as regulations of general applicability. Other SPs are not being proposed for adoption into the HMR because we concluded they contain requirements which (1) would not have, or are being applied in a manner which would not have, broad applicability; or (2) have already been adopted into the HMR, are covered by authorizations in the HMR, or are being addressed in other rulemakings.

We encourage all interested parties, particularly the holders of currently active SPs, to submit comments regarding the SPs we are proposing to adopt into the HMR, the SPs we are not presently proposing to adopt into the HMR, and our preliminary regulatory impact analysis.

II. Background

PHMSA is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to adopt certain requirements based on existing SPs issued by PHMSA under 49 CFR part 107, subpart B (§§ 107.101 to 107.127). SPs set forth alternative requirements—or a variance—to the requirements in the HMR in a way that achieves a safety level at least equal to the safety level required under the regulations, or when the regulations do not establish a safety level, that is consistent with the public interest. Congress expressly authorized the Secretary of Transportation to issue these variances in the Hazardous Materials Transportation Act of 1975 (49 U.S.C. 5109) as amended.

On July 6, 2013 President Obama signed legislation entitled Moving Ahead for Progress in the 21st Century Act (MAP-21). Section 33012 of this legislation required PHMSA to review and analyze SPs that have been in continuous effect for a 10-year period to determine which ones may be converted into the HMR. The legislation also required PHMSA to issue regulations to adopt any SPs identified as appropriate for adoption in a final rule by October 1, 2015. The legislation provides the following factors to consider during review and analysis to determine suitability for adoption into the HMR:

(1) The safety record of the hazardous materials (hazmat) transported under the SP;

(2) The application of a SP;

(3) The suitability of the provisions in the SP for incorporation into the hazmat regulations; and

(4) Rulemaking activity in related areas.

Prior to the passing of the MAP-21 legislation, PHMSA had completed numerous rulemaking actions, through an established and refined approach, to convert long-standing SPs with an established safety record into the HMR. Following the passage of the MAP-21 legislation, PHMSA modified its approach to align with the requirements of this legislation. Specifically, PHMSA established terms of reference and baseline criteria for the review of long-standing SPs, created tracking tools to monitor progress, and adopted a methodology and timeline to evaluate SPs.

This Notice of Proposed Rulemaking (NPRM) provides an overview of the SP Program to date, a detailed review of the requirements of MAP-21 with regard to this initiative, and a comprehensive explanation of the rationale used to evaluate these SPs both prior to and after the implementation of MAP-21. Furthermore, based on this rationale, this NPRM details the SPs that are deemed not suitable for adoption into the HMR along with the corresponding reasoning, and proposes the adoption into the HMR of SPs that have been deemed suitable through this review. The proposals from all the SPs to be adopted have broad applicability, fit into the scope of the HMR, will increase flexibility in transportation, and provide an equivalent level of safety to the current regulations. PHMSA is inviting comments from all interested parties, particularly SP holders, on both those SPs deemed suitable and proposed to be adopted and those that are deemed not suitable for adoption.

III. Overview

A. SPs Program

PHMSA's Approvals and Permits Division is responsible for the issuance of DOT SPs and Approvals. A SP sets forth alternative requirements, or variances, to the requirements in the HMR. Federal hazardous materials transportation law (49 U.S.C. 5101-5128) authorizes PHMSA to issue such variances in a way that achieves a safety level that is at least equal to the safety level required under Federal hazmat law or is consistent with the public interest if a required safety level does not exist. SPs also address unique or infrequent transportation situations that would be difficult to accommodate in regulations intended for use by a wide range of shippers and carriers.

SPs are issued by PHMSA under 49 CFR part 107, subpart B (§§ 107.101 to 107.127). The HMR are generally performance-oriented regulations, and as such, provide the regulated community with some flexibility in meeting safety requirements. Even so, not every transportation situation can be anticipated and covered under the regulations. The hazardous materials community is at the cutting edge of developing new materials, new technologies, and innovative ways of moving hazardous materials. Innovation strengthens our economy, and some new technologies and operational techniques may enhance safety. Thus, while not compromising safety, SPs provide a mechanism for testing new technologies, promoting increased transportation efficiency and productivity, and ensuring global competitiveness. In addition, SPs enable the hazardous materials industry to safely, quickly, and effectively integrate new products and technologies into production and the transportation stream.

PHMSA conducts ongoing reviews of SPs to identify widely-used and long-standing SPs with established safety records for conversion into regulations of broader applicability. Converting these SPs into regulations reduces paperwork burdens for the government and applicants and facilitates commerce while maintaining safety. Additionally, adoption of SPs as rules of general applicability provides wider access to the benefits and regulatory flexibility of the provisions granted in the SPs. Factors that influence whether or not a specific SP is a candidate for regulatory action include: the safety record for hazardous materials transported or operations conducted under a SP; potential for broad application of a SP; suitability of the provisions in the SP for adoption into the HMR; rulemaking activity in related areas; and agency priorities.

Since the inception of the SP program, PHMSA has periodically reviewed SPs and under various rulemaking actions certain widely-used or long-standing SPs that have an established safety record have been adopted or recently proposed for incorporation into the HMR. For example, PHMSA has adopted or proposed 94 SPs into the HMR since 2008. These 94 SPs represent a decrease of 13,947 holders of SPs. These rulemakings are noted in Table 1.

B. MAP-21 Legislation

Section 33012 of the MAP-21 legislation modified § 5117 (f) of the Federal Hazardous Materials Transportation Law. Specifically, under the “SPs and exclusions” paragraph (f) was revised to read as follows:

“(f) Incorporation into regulations.

(1) IN GENERAL—Not later than 1 year after the date on which a SP has been in continuous effect for a 10-year period, the Secretary shall conduct a review and analysis of that SP to determine whether it may be converted into the hazardous materials regulations.

(2) FACTORS—In conducting the review and analysis under paragraph (1), the Secretary may consider—

(A) the safety record for hazardous materials transported under the special permit;

(B) the application of a special permit;

(C) the suitability of provisions in the special permit for incorporation into the hazardous materials regulations; and

(D) rulemaking activity in related areas.

(3) RULEMAKING—After completing the review and analysis under paragraph (1) and after providing notice and opportunity for public comment, the Secretary shall either institute a rulemaking to incorporate the special permit into the hazardous materials regulations or publish in the Federal Register the Secretary's justification for why the special permit is not appropriate for incorporation into the regulations.”

This modification required PHMSA to review and analyze SPs that have been in effect for 10 years or more and determine which should be converted into regulations; set parameters for the review; and issue regulations to adopt any SPs identified as appropriate for adoption in a final rule by October 1, 2015. Following the publication of the final rule, this process would be completed annually to ensure appropriate SPs are converted into the HMR on a consistent basis.

The legislation also required PHMSA to address other issues related to the SP and approvals regulations and program processes. Specifically, PHMSA is required to issue regulations on standard operating procedures to support administration of the SP and approval programs. This requirement is being addressed under Docket PHMSA 2012-0260 (HM-233E) in a Notice of Proposed Rulemaking (NPRM) published on August 12, 2014 [79 FR 47047].

Table 2 summarizes all of the MAP-21 requirements related to the SP program, the corresponding rulemaking actions, and required completions dates:

C. SP Conversion Project Methodology

As previously stated, in the past, PHMSA has analyzed, evaluated, and adopted SPs into the HMR. In addition, PHMSA had already established an approach to adopt SPs into the HMR. However, the requirements contained in MAP-21 necessitated that PHMSA modify and formalize this approach. This section describes the SP Conversion Project (SPCP) and the methodology used to satisfy the requirements of MAP-21.

The following table summarizes the different phases of the SPCP. Specifically, this table briefly discusses the efforts of each phase and the timeframe in which it was completed. Furthermore, this table demonstrates how the entire project was divided into the two primary stages of analysis and rulemaking. Each phase of the SPCP is described in Table 3.

Phase 1: Development of Methodology

As stated above, prior to the publication of MAP-21, PHMSA conducted reviews of SPs to identify widely-used and long-standing SPs with an established safety record for conversion into the HMR for broader applicability. The SPs suitable for adoption were predominantly identified by two methods: petitions for rulemaking submitted in accordance with § 106.105; and through a review of the SP application by the Approvals and Permits Division staff at the time of application. Specifically, during the evaluation of a SP application, the specialist reviewing the application could “tag” a SP as a future candidate for adoption into the regulations. At a later date after a positive safety record had been established, the SP would be proposed for adoption in a future rulemaking. This method to adopt SPs, however, was not conducted on a defined and predictable schedule.

After President Obama signed the MAP-21 legislation, PHMSA modified its SP conversion practices and developed an overall strategy to specifically address the aspects of the requirements of MAP-21 that were not reflected in current procedures. In an effort to address the specific requirements for SP conversion, PHMSA's Standards and Rulemaking Division created a SPCP management team. This SPCP management team developed a methodology to consistently evaluate SPs, a system to track the analysis, created rulemaking sub-teams, topics and sub-topic areas to combine similar SPs to be reviewed by the appropriate subject matter experts (SME) and teams, and established timelines and milestones.

As MAP-21 included specific deadlines for the various aspects of the SPCP, PHMSA created an overall project timeline. This timeline was established by utilizing the Standards and Rulemaking Division's knowledge of the current rulemaking process and working backwards from the deadlines required by MAP-21. The timeline was divided into two main parts; analysis (Phases 1-4) and rulemaking drafting and coordination (Phases 5-8). Each of these portions of the timeline included specific deliverables.

Each SP being analyzed was assigned to one of 6 topic areas. These topic areas were established to reflect the main utility and purpose of the SP. These topic areas of the SPs, an overview of each topic area, and the affected number of SP holders are displayed in Table 4.

These topic areas were then used to develop teams to address each grouping of SPs. Each topic area was further broken down into sub-topic areas which reflected the specific area of transportation that the SP affected. These sub-topic areas included manufacturing, retest, and use. Breaking down the SPs into topics and sub-topics ensured that the appropriate SMEs would be reviewing SPs and allowed for more efficient delegation of the workload.

As mentioned above, teams were established based on topic areas to handle Phase 3 (Team Analysis) and Phase 4 (Drafting) of the SPCP. Teams were comprised of the appropriate SMEs from the Standards and Rulemaking Division, the Engineering and Research Division, the Approvals and Permits Division, Field Operations, the Program Development Division, the Office of Chief Counsel and our modal partners, the Federal Aviation Administration (FAA), the United States Coast Guard (USCG), the Federal Railroad Administration (FRA) and the Federal Motor Carrier Safety Administration (FMCSA). In addition, each team was assigned a team lead and a team mentor from the SPCP Management team. The teams met on a frequent basis throughout Phase 3 and Phase 4 to discuss progress on their assignments and to pinpoint and resolve issues with the SP conversion.

Throughout every phase of the SPCP, the status of all currently active SPs was tracked in a database designed specifically for this project. This database detailed the specialist and team assigned to the review of the SP, the current status of the SP and the code it was assigned following completion of the review. This database also tracked the completion of the drafting of regulatory text for any given SP and provided a brief summary of the SP. In addition, the SPCP Management team closely monitored timelines and milestones in a database specifically tailored to the SPCP.

Phase 2: Preliminary Analysis

MAP-21 specifically mandated PHMSA issue regulations to adopt into the HMR any SPs that had been in continuous effect for a 10-year period and that PHMSA determined through its analysis are appropriate for adoption based on the review factors. While MAP-21 limited this analysis and review to SPs with a lifespan of greater than 10 years, PHMSA decided that an initial review of all active SPs would provide a greater benefit. A complete review of all SPs was conducted because many of the SPs are interconnected and interrelated. For example, some SPs are very similar with only minor differences between them and the inclusion of one SP may justify the inclusion of other similar SPs. In addition, PHMSA did not want to automatically disqualify a SP from consideration just because the SP was not in effect for 10 years. A SP may be extensively used and have an established history of safe use even if it is less than 10 years old. As MAP-21 also requires the periodic review of SPs over 10 years of age, PHMSA rationalized that a larger initial review would considerably streamline and limit the number of SPs to be evaluated in future reviews.

In January 2013, PHMSA began a systematic review of 1,168 existing SPs utilizing the criteria required by the MAP-21 legislation to determine suitability for adoption into the HMR. Transportation Regulations Specialists within the Standards and Rulemaking Division were assigned groupings of SPs. Each specialist was given instructions on how to uniformly and consistently review a SP. For the groups of SPs assigned, each specialist was instructed to:

• Provide a brief summary of each SP;
• Identify the key/other regulatory sections of the HMR affected;
• Make a determination on the suitability for adoption (Guidance was provided on assigning each SP a code relating to its suitability. These codes are discussed in further detail later in this document);
• Assign the SP to a topic area;
• Provide rationale for their findings; and
• Account for any recordkeeping issue that they faced.

Specialists then reviewed the SPs and, based on the guidance developed by the SPCP management team, they made a determination of which code the SP would be assigned (See Table 5). If specialists had doubts or concerns about any particular SP, they would assign a proposed code and flag the SP in the tracking database for second level mentor review in Phase 3.

In April 2013, the preliminary analysis was completed with roughly 300 SPs deemed suitable for adoption. In addition, approximately 185 SPs were flagged for second level review by the SPCP management team in Phase 3.

Phase 3: Mentor Review: Review of SPs Flagged and Not Suitable

From April through May 2013, the rulemaking mentors for each topic team conducted a second review of all SPs deemed not suitable for adopting into the HMR (roughly 690 SPs) and those tagged for further review in the Phase 2 review (185 SPs). Specifically, the mentors divided the SPs in need of further review among themselves, evaluated each permit against the requirements of MAP-21, and made a determination on the SP when possible. If the mentors were unable to make a determination, the SP remained flagged and the SP topic team would make a group determination in Phase 4.

Phase 4: Team Analysis

PHMSA then utilized six rulemaking teams, one for each topic area. As previously stated, each team was composed of a team leader, mentor, and team members from each PHMSA Division and our modal partners (FAA, USCG, FRA and FMCSA). Team leaders were tasked with the overall completion of the topic and the distribution of work assignments. Mentors were charged with reviewing the teams' data, and providing edits to ensure the 6 topics were cohesive and would form a complete and understandable NPRM. The team leaders and mentors of each topic area were members of the Standards and Rulemaking Division. Each topic area was handled as if it were its own rulemaking project.

While each team leader approached the team analysis phase in their own manner, the team members were utilized consistently throughout the SPCP, regardless of project. For example, modal partners focused on aspects of proposed SPs specific to their mode of transportation or aspects of SPs that could have wider implications in their mode. Team members from the Standards and Rulemaking Division primarily drafted the regulatory text and rulemaking preamble language. The Engineering and Research Division focused primarily on the technical aspects of each SP, the evaluation and development of regulatory text, and the technical implications of the introduction of new technologies that a SP may provide. The Approvals and Permits Division focused primarily on the history of each SP, the evaluation and development of regulatory text and the suitability determinations of the SPs. PHMSA Field Operations provided a review of enforcement actions of the SPs that were deemed suitable and assisted in the incident data research of each SP. The Program Development Division assisted in the review of the incident data research of the SPs and the evaluation of the cost and benefit data for the SPs that were deemed suitable. Finally, the Office of Chief Counsel primarily dealt with the editing of regulatory text and rulemaking preamble language as well as providing assistance in completing the regulatory analysis.

Each topic team tracked its status in a database, specifically noting when regulatory text was completed. The teams also used this database to record information to be included in the preamble explanations for each SP. For the SPCP, all draft regulatory text was completed in September 2013, at which point the team mentors provided edits and worked with each team to formulate a final version of each topic. In addition, each team provided a completed document containing lists of all suitable SPs, all non-suitable SPs, and the assigned codes to explain why the non-suitable SPs would not be included.

Phase 5-8: Rulemaking: Drafting, Consolidation, Coordination, and Publication

As the final phase, PHMSA consolidated its analyses and conclusions, evaluated compliance with statutory requirements and governmental policies and procedures applicable to the regulatory process, and prepared this NPRM to address each topic area. These requirements include Executive Orders, Office of Management and Budget (OMB) Bulletins, DOT orders and procedures, the Administrative Procedures Act, and others. PHMSA uses a common process to identify, develop, track, prioritize, and implement regulatory changes in line with applicable DOT and Federal government policies and procedures. The Standards and Rulemaking Division has a Standard Operating Procedure (SOP) in place which is intended to outline and serve as a reference for persons engaged in the regulatory process and to ensure that all applicable requirements are met. This rulemaking was completed, as with all rulemakings, using this SOP.

For this rulemaking, due to the comprehensive nature of the project, it was broken down into topics with teams assigned to each topic. Each topic area was then handled as if it were its own rulemaking project. While Phases 1-4 represented the analysis portion of this project, Phases 5-8 encompassed the rulemaking portion. Following the completion of the team analysis in Phase 4, team mentors edited and compiled the topics into one master document.

Future Reviews

As required by MAP-21, PHMSA plans to conduct annual reviews of SPs which have been in effect for more than 10 years. These reviews and analysis of SPs will use the same methodology and tools as those used in this rulemaking. PHMSA anticipates future analysis and review will be streamlined due to the reduced number of SPs to be evaluated and the experience gained through this evaluation.

In addition, PHMSA is considering modifications to the manner in which it writes new SPs in order to more accurately reflect how the HMR is written. In this NPRM, PHMSA is requesting comments as it considers a future proposal to require an applicant to provide potential regulatory text when submitting an application for a SP in order to facilitate adoption of SPs into the HMR.

D. Petitions for Rulemaking

PHMSA also considered several petitions for rulemaking submitted in accordance with § 106.105 that may impact SPs reviewed in this rulemaking. These petitions are discussed below.

P-1607

The Council on the Safe Transportation of Hazardous Articles (COSTHA) submitted a petition for rulemaking under P-1607 to adopt the provisions of DOT SP-11458 that authorizes display packs of consumer commodity packages that exceed the 30 kg gross weight limitation. This petition has been accepted by PHMSA and is being proposed in this rulemaking. See the discussions in §§ 171.8 and 173.56 under the “Operational Highway/Rail/Shipper/Other” heading of this rulemaking.

P-1608

The Truck Trailer Manufacturers Association (TTMA) submitted a petition for rulemaking under P-1608 to adopt the provisions of DOT SP-11903 into the HMR. This petition requests that PHMSA propose to adopt standards for the construction and use of Fiber Reinforced Plastic (FRP) Cargo Tanks. Currently, these tanks are constructed under DOT-SP 11903 and used under party status in DOT SP-9166. In addition to DOT SP-11903 and DOT SP-9166, there are other SPs that address these standards. PHMSA is not proposing to adopt these SPs at this time as there is not a uniform standard for FRP Cargo Tanks ready for adoption. However, PHMSA is working to develop a uniform standard for FRP cargo tanks and will address this issue in a future rulemaking.

P-1610

COSTHA submitted a petition for rulemaking under P-1610 to adopt the provisions of DOT-SP 11110 into the HMR. This SP authorizes cargo aircraft operators to load division 1.4S and Class 8, PG III materials in inaccessible cargo locations in excess of the limitations specified in § 175.75(c). This petition has been accepted by PHMSA for consideration in a future rulemaking. However, at this time PHMSA is not proposing to adopt this SP because of concern that more time is needed to research the potential impact of changes to § 175.75 and to coordinate this review with the appropriate parties, including our modal partners.

P-1611

COSTHA submitted a petition for rulemaking under P-1611 to adopt the provisions of DOT-SP 11470 into the HMR. This SP authorizes the transportation in commerce of shrink-wrapped pallets containing boxes of waste ORM-D materials with the word “WASTE” marked on the outside of the pallet instead of the individual box. This petition has been accepted by PHMSA and is being proposed in this rulemaking. See the discussion in § 173.12 under the “Operational Highway/Rail/Shipper/Other” heading of this rulemaking.

E. SP Evaluation Results

PHMSA is committed to the SP adoption process established by Congress in MAP-21. To ensure that the changes made under this action are as efficient and effective as possible, PHMSA solicits input from its stakeholders. We have used several tables throughout this rulemaking to clearly identify SPs that are suitable for adoption and those that have been deemed not suitable. As required by MAP-21 the initial review and analysis of SPs considered the following factors:

• The safety record of hazardous materials transported under the SP;
• The application of a SP;
• The suitability of provisions in the SP for adoption into the HMR; and
• Rulemaking activity in related areas.

Based on these factors, the SPCP team developed and assigned codes to each SP being reviewed. These codes represent the rationale for adopting or not adopting a SP into the regulations. Table 5 explains each code.

Evaluation Summary

After completion of the evaluation segment of the SPCP, PHMSA identified 98 currently-active SPs that were suitable to be proposed for adoption in this rulemaking action. The SPCP evaluated 1,168 permits that represented 3,691 holders of SPs that were active on January 1, 2013. The adoption of these 98 SPs would impact 728 SP holders, as shown in Table 6. If the SPs proposed for adoption into the HMR in this rulemaking were to be adopted in a final rule, there would be an approximate 8% reduction in the number of SPs and approximate 20% reduction in the number of holders of SPs. PHMSA anticipates the final number of SPs adopted in the final rule may vary from this original number based on input from public comments received in response to this rulemaking and ongoing SP activity.

When combined with previous regulatory efforts to adopt SPs into the HMR, the impact is increased to 192 total SPs adopted since 2008, affecting 14,675 holders of SPs, as shown in Table 7.

After this initial review of all SPs, PHMSA plans to annually review SPs that have been in effect for more than 10 years. PHMSA's ongoing review and analysis of SPs will use the same methodology and tools as in this rulemaking. PHMSA anticipates future analysis and review will be streamlined due to the reduced number of SPs to be evaluated and the experience gained through this evaluation.

Suitable for Adoption

The analysis phase of the SPCP identified 98 SPs (728 holders of SPs) that were deemed suitable for adoption. Table 8 summarizes the SPs deemed suitable, their assigned topic area, a summary of the permit, and the number of holders of SPs. All suitable SPs were deemed to be Code 1.

Not Suitable for Adoption

The analysis phase of the SPCP identified 1,070 SPs that were deemed not suitable for adoption. Table 9 summarizes the SPs deemed not suitable, their assigned topic area, a summary of the permit, the number of SP holders, and the corresponding denial code.

F. Request for Comments

PHMSA welcomes comments concerning the proposed amendments in this rulemaking. Specifically, PHMSA is interested in comments from SP holders (both those deemed suitable and those deemed not suitable for adoption) reviewed for this rulemaking. Due to the large scope of this rulemaking, PHMSA asks that when submitting comments to the Docket for this rulemaking, commenters include the SP Number and Topic area in the comment title and document name (e.g. SP12345/Cylinder—General).

For holders of SPs deemed suitable for adoption, PHMSA requests comment on our determination. PHMSA is particularly interested in comments that confirm or refute the suitability, safety, and general applicability of the SPs. PHMSA is also soliciting comments on the regulatory text proposed in this rulemaking. Specifically, PHMSA is interested in comments that address whether the proposed regulatory text accurately encompasses the requirements of the SP.

For holders of SPs deemed not suitable for adoption, PHMSA requests comment on our determination. PHMSA is particularly interested in comments that confirm or refute the suitability, safety, and general applicability of the SPs. Please note that if you are a holder of a SP that was not proposed to be adopted but believe it should be, PHMSA asks that you submit material to support such an argument. Specifically, PHMSA requests:

• Information and arguments that support the proposed adoption including technical and scientific data;
• The impact of the proposed adoption including cost and benefits;
• The frequency of shipments made under the SP;
• The frequency of hazardous materials incidents (such as those described in 171.15 and 171.16) occurring during shipments made under the SP; and
• Proposed regulatory text.

PHMSA asks that when submitting comments to the docket for this rulemaking for SPs deemed not suitable, the SP Number, Topic area and the letters “NS” indicating “Not suitable” are reflected in the comment title and document name (e.g. SP12345/Cylinder—Retest/NS).

Finally, PHMSA requests comment as it considers a future proposed requirement for a SP applicant to provide potential regulatory text as part of each SP application. Specifically, PHMSA requests comment on the impact this practice would have, such as benefits or drawbacks.

IV. Section-by-Section Review by Topic Area

A. Cylinders—General

Part 172

172.102 Special Provisions

Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. Non-bulk packagings must be marked with the United Nations (UN) identification number and proper shipping name, and bear labels communicating the hazard of the material contained in the package. DOT-SP 13544 authorizes the transportation in commerce of Department of Transportation (DOT) Specification 4BA240 cylinders containing liquefied petroleum gas (LPG) and propane and/or residue of LPG or propane without hazard warnings provided the materials are transported in a closed and placarded transport vehicle. This SP supports the propane cylinder exchange programs that accept expended cylinders in exchange for full cylinders. Cylinders collected during the course of these programs may not always bear the appropriate hazard warning markings and labels as required by the HMR. DOT-SP 13544 imposes certain operational controls to ensure appropriate hazard communication, driver training, and appropriate securement of the cylinder on the transport vehicle. PHMSA proposes to add a special provision, “N95” to allow non-bulk packagings containing UN1075, Liquefied petroleum gas and UN1978, Propane not to be marked with the UN number and proper shipping name or bear hazard labels provided certain restrictions are met.

Section 172.400a

The HMR provide exceptions or alternatives to the labeling requirements under specific circumstances. One such alternative permits the use of a neckring marking, under certain conditions, in accordance with the CGA publication C-7, Guide to Preparation of Precautionary Labeling and Marking of Compressed Gas Containers, Appendix A,8th Edition (2004). Section 172.400a permits the use a CGA Pamphlet C-7 marking in lieu of the 100 mm x 100 mm square-on-point labels on a Dewar flask meeting the requirements in § 173.320 and cylinders containing Division 2.1, 2.2, and 2.3 materials that are not overpacked.

DOT-SP 14251 authorizes the transportation in commerce of overpacked cylinders, containing Class 2 materials, with CGA C-7 neckring labels provided the overpack is labeled in accordance with § 172.400. Additionally, the CGA petitioned PHMSA (P-1521) to allow cylinders to display the neckring marking even when overpacked. The petition would still require the overpack to display the 100 mm x 100 mm square-on-point labels in accordance with 49 CFR part 172, subpart E. The marking prescribed in Appendix A to CGA publication C-7, Guide to Preparation of Precautionary Labeling and Marking of Compressed Gas Containers, Appendix A, 8th Edition (2004) provides useful information in a clear and consistent manner and its widespread use on cylinders over the course of several years has enhanced its recognition. The adoption of DOT-SP 14251 and CGA's proposed change would provide greater flexibility for shipments of overpacked cylinders while ensuring adequate hazard communication. Therefore, PHMSA is proposing to revise this section to authorize the transportation in commerce of overpacked cylinders, containing Class 2 materials, with CGA C-7 neckring labels and to allow these cylinders to display the neckring marking even when overpacked provided the overpacks are properly labeled.

Part 173

Section 173.181

Section 173.181 specifies the authorized packagings for the shipment of pyrophoric materials (liquids) in transportation. DOT-SP 14419 authorizes the additional use of DOT specification 3AL cylinders constructed from aluminum alloy 6061-T6 for the shipment of pyrophoric liquids provided the cylinders are constructed of 6061-T6 aluminum, have a minimum marked service pressure of 1800 psig, have a maximum water capacity of 49 liters, and any preheating or heating of the cylinders is limited to a maximum temperature of 175 °F. PHMSA proposes to revise this section to allow for the use of DOT specification 3AL cylinders constructed from aluminum alloy 6061-T6, with the same specified limitations for the shipment of pyrophoric materials.

Section 173.193

Section 173.193(b) states that “Bromoacetone, methyl bromide, chloropicrin and methyl bromide mixtures, chloropicrin and methyl chloride mixtures, and chloropicrin mixtures charged with non-flammable, non-liquefied compressed gas must be packed in Specification 3A, 3AA, 3B, 3C, 3E, 4A, 4B, 4BA, 4BW, or 4C cylinders having not over 113 kg (250 pounds) water capacity (nominal).” DOT-SP 12301 authorizes the transportation in commerce of Chloropicrin and methyl bromide mixtures in DOT4BW cylinders with water capacity (nominal) not over 454 kg (1,000 pounds). PHMSA proposes to revise § 173.193(b) to allow for a water capacity of not over 454 kg (1,000 pounds) for chloropicrin and methyl bromide mixtures packed in DOT specification 4BW cylinders.

Section 173.301

This section outlines the general requirements for the use of cylinders including a list of authorized cylinders, general filling requirements, valve protection, and pressure relief device requirements. In this NPRM, PHMSA proposes revisions that would amend the pressure relief device requirements and permit the use of valve caps made from a material other than metal.

PHMSA proposes to authorize the transportation in commerce of DOT specification 39 cylinders without a pressure relief device valve being in communication with the vapor space. With limited exceptions, § 173.301(f) requires a cylinder filled with a compressed gas to be fitted with a pressure relief device. Section 173.301(f)(2) states that “a pressure relief device, when installed, must be in communication with the vapor space of a cylinder containing a Division 2.1 (flammable gas) material.” DOT-SP 13318 authorizes the transportation in commerce of DOT specification 39 cylinders of 75 cubic inches or less volume, without the PRD in direct communication with the vapor space. PHMSA proposes to amend paragraph (f)(2) to state that this provision does not apply to cylinders of 75 cubic inches or less in volume filled with a liquefied petroleum gas, methyl acetylene and propadiene mixtures, stabilized, propylene, propane or butane. This SP was originally issued in 2003 subsequent to the publication of HM-220D [67 FR 51625; August 8, 2002] which instituted the requirement that the PRD be in communication with the vapor space, and continues to allow a shipping practice that prior to 2003 has been successfully used with an acceptable safety record.

PHMSA proposes to create an additional exception to pressure relief device requirements for DOT-3E cylinders under certain limited circumstances. DOT-SP 8074 provides an exception from the pressure relief device requirements for a DOT specification 3E cylinder up to 12 inches long and 2 inches in diameter when filled with the following gases up to the specified limits: Carbon dioxide, liquefied 0.24L (8 oz.), Ethane 0.12L (4oz.), Ethylene (4 oz.), Hydrogen chloride, anhydrous 0.24L (8 oz.), Nitrous oxide 0.24L (8 oz.), Vinyl fluoride, stabilized 0.24L (8 oz.) and Monochlorotrifluoromethane 0.35L (12 oz.). PHMSA proposes to add a new paragraph § 173.301(f)(7) to authorize DOT 3E cylinders of this size and containing these gasses to be shipped without a pressure relief device provided they are under the provided maximum weight limits.

Finally, PHMSA also proposes to authorize the use of valve protection caps that are made from a material other than metal. Compressed gas cylinders must meet certain valve protection requirements outlined in §§ 173.40(d) and 173.301(h). Each cylinder with a valve must have a protective metal cap, other valve protection device, or an overpack which is sufficient to protect the valve from damage during transportation. For Division 2.3 or 6.1 Hazard Zone A or B materials, the valve protection must be of sufficient strength to protect the valve from breakage and leakage resulting from a drop of 2.0 m (7 ft) or more onto a non-yielding surface at the orientation most likely to cause damage. DOT-SP 12782 authorizes plastic valve protection caps for certain Division 2.1, 2.2, and 2.3 materials when the valve protection is sufficient to prevent leakage when the cylinder, with the valve installed, is dropped from 2.0 m (7 ft) or more onto a non-yielding floor, impacting the valve assembly or cap at the orientation most likely to cause damage. In this NPRM, PHMSA proposes to amend §§ 173.40(d) and 173.301(h) to allow for the valve protection, including the valve cap, to be made from plastic. PHMSA is not proposing any changes to § 173.301b(c) because ISO 11117 permits valve caps made of materials other than metal.

Section 173.302a

Sections 173.302, 173.302a, 173.304 and 173.304a prescribe additional requirements for the transport of non-liquefied (permanent) and liquefied compressed gases in DOT specification cylinders. These requirements include authorized cylinders and filling limits. Section 173.302a(b) states that a DOT 3A, 3AX, 3AA, 3AAX, and 3T cylinder may be filled with a compressed gas, other than a liquefied, dissolved, Division 2.1, or Division 2.3 gas, to a pressure 10% in excess of its marked service pressure, subject to certain safety criteria. DOT-SP 6530 authorizes the transport in commerce of hydrogen and mixtures of hydrogen with helium, argon, or nitrogen, in certain cylinders filled to 110% of their marked service pressure. PHMSA proposes to add a new paragraph (c) to include this exception and to remark the other paragraphs in this section to reflect this addition. This SP was originally issued over 40 years ago.

Section 173.304a

In § 173.304a(a)(2), a table provides the maximum filling densities and permissible cylinder types for certain named gases. Currently, § 173.304a(a)(2) permits a maximum filling density of 68% for carbon dioxide and nitrous oxide in DOT 3, DOT 3HT2000 and DOT 39 cylinders as well as DOT 3A, 3AX, 3AA, 3AAX, 3E, 3T, and 3AL cylinders with a marked service pressure of 1800 psi. PHMSA proposes to modify the entries currently in the table in § 173.304a(a)(2) to add additional filling densities for carbon dioxide and nitrous oxide.

DOT-SP 13599 authorizes additional maximum filling densities for carbon dioxide and nitrous oxide to include 70.3%, 73.2%, and 74.5% in DOT 3A, 3AA, 3AX, 3AAX, 3AL, and 3T cylinders with marked service pressures of 2000, 2265, and 2400, psig respectively, subject to operational controls. Air Products and Chemicals Inc. (Air Products) submitted a petition for rulemaking (P-1560) requesting PHMSA revise § 173.304a(a)(2) to adopt the provisions of DOT-SP 13599. Air Products stated in its petition that the proposed increase in the maximum permitted filling densities would yield various benefits including increased harmonization of compressed gas filling requirements with the UN Model Regulations, benefits to the carbonated beverage industry, decreased fuel costs associated with the transportation and delivery of carbon dioxide and nitrous oxide, and reduced administrative costs through the elimination of DOT-SP 13599. PHMSA has a high degree of confidence that the increased filling densities for these gases will not adversely impact safety. While determining if DOT-SP 13599 was suitable for inclusion in this rulemaking, PHMSA's technical evaluators confirmed that if the table in § 173.304a is revised to clearly link the maximum permitted filling density with the specific gas and the specific packaging, then the operational controls of DOT-SP 13599 would be met. Therefore, PHMSA proposes to modify the entries currently in the table in § 173.304a(a)(2) for carbon dioxide and nitrous oxide to include the maximum filling densities listed in P-1560 and DOT-SP 13599.

Part 180, Subpart C

Qualification, Maintenance and Use of Cylinders

The HMR prescribe requirements for the continuing qualification, maintenance, and periodic requalification of DOT specification cylinders, DOT SP cylinders, and UN pressure receptacles. These requirements ensure that cylinders continue to conform to the appropriate specification and compromised cylinders are not filled with hazardous materials. The discussion of the proposed amendments includes a section-by-section review of the current requirements, and a discussion of SPs considered for adoption and proposed amendments.

Part 180

Section 180.209

Each DOT specification cylinder must be given a complete external and internal visual inspection and subjected to a hydrostatic pressure test. This combination of a visual examination and hydrostatic test is referred to as requalification. The time period for periodic requalification is typically 5 years, but this period varies depending on the cylinder specification and the gas service. The requalification period for various DOT specification cylinders is shown in the § 180.209 table.

Paragraph (e) authorizes a proof pressure test in lieu of the volumetric expansion test for 4B, 4BA, 4BW, or 4E cylinders protected with a corrosion resistant coating used exclusively for the gases specified in that paragraph. DOT-SP 12084 expands on the list in paragraph (e) to include additional gases. These gases are refrigerated gases and liquefied gases similar to those already permitted by § 180.209(e). This SP was originally granted in 1998 and has been revised several times to expand the list of gases authorized by the SP. Since 1998, thousands of cylinders have been requalified in the manner described by this SP without safety incident. In this NPRM, PHMSA proposes to adopt the provisions in DOT-SP 12084 by removing the list of authorized gases and authorizing the use of the proof pressure test for DOT-4B, 4BA, 4BW, or 4E cylinders protected externally by a suitable corrosion resistant coating and used exclusively for non-corrosive gases. The authorized specifications limit the total pressure in the cylinder to 500 psi or less. It should be noted that because this SP does not include a 4E cylinder, PHMSA specifically requests comments on the feasibility of its inclusion.

Section 180.213

Cylinders requalified in accordance with the HMR must bear requalification markings in accordance with § 180.213. As provided in § 180.213(c), “The depth of requalification markings may not be greater than specified in the applicable specification. The markings must be made by stamping, engraving, scribing or other method that produces a legible, durable mark.” DOT-SP 14937 allows the use of a label embedded in epoxy in lieu of other methods described in § 180.213. PHMSA proposes to amend paragraph (c) to allow the use of a label embedded in epoxy in lieu of stamping provided the marking is legible and durable. This SP was originally issued in 2008 and has an acceptable safety record.

B. Cylinders—NDT/Aerosols

Part 173

Section 173.304

Section 173.304 specifies the requirements for the filling of cylinders with liquefied compressed gases. Paragraph (d) of this section provides for authorized packagings for the filling of cylinders with refrigerant and dispersant gases. The current regulations authorize these materials in a 2Q non-refillable container. DOT-SP 12573 authorizes a refrigerant gas (“R 134a,” UN3159) in a non-DOT specification container similar to a 2Q container at a maximum allowable pressure requirement for the contents of 198 psig at 54.4 °C (130 °F).

Based on our review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to adopt the container found in DOT-SP 12573 as an authorized container. However, we are differing marginally from the permit in that we are adopting a maximum pressure threshold of 200 psig at 55 °C (131 °F) for the contents. There is no safety basis for the 200 psig ceiling other than we believe it is a cleaner cutoff point than the 198 psig maximum found in the SP. In addition, as part of the variation on the design of a DOT 2Q container, the modified container will be marked as “DOT 2Q1.”

Finally, the current regulations require that the pressure of the contents of the metal containers not exceed 87 psig at 21 °C (70 °F). We invite comment on whether the requirement for a maximum pressure should be specified at 21 °C (70 °F) for the 2Q1 container in addition to the limit at 55 °C (131 °F). If so, we invite comment on what should the limit be for typical refrigerant or dispersant gas such as 1,1,1,2 Tetrafluoroethane, R134a. See the associated discussions for §§ 173.306 and 178.33d.

Section 173.306

Section 173.306 provides general requirements and exceptions for shipments of limited quantities of compressed gas. In this NPRM, we are making several proposed changes to this section. The proposed changes are discussed as follows:

Conforming revisions. Throughout this section of the HMR and within related SPs that provide exemptions from these regulations for gases, pressure standards are indicated at either 130 °F or 131 °F. In the interest of consistency and conformity with the general requirements for compressed gases in §§ 173.301 and 173.301a, we are proposing to change all references of 54.4 °C (130 °F) to 55 °C (131 °F). We invite comment on whether there are any potential negatives in making this conforming change. We are also making revisions to the construction and formatting of how this section is presented (e.g., insertion of an “if, then” table) in an effort to make the requirements more reader-friendly.

Authorized Metal Containers

DOT 2P inner nonrefillable metal containers. Under § 173.306, limited quantities of foodstuffs or soaps with soluble or emulsified compressed gas are authorized in nonrefillable metal or plastic containers. Paragraph (b)(1) introductory text authorizes these containers subject to a pressure requirement not to exceed 140 psig at 54.4 °C (130 °F). SPs 13601 and 14503 authorize the transportation of “UN1950, Aerosols, non-flammable (each not exceeding 1 L capacity), 2.2,” and 7951 authorizes the transportation of “UN1956, Compressed gas, n.o.s., 2.2,” in containers that conform to DOT 2P or 2Q specifications except for some minimal modifications. The containers must have maximum pressures for the contents of 160 psig at 54.4 °C (130 °F) and 150 psig at 23.9 °C (75 °F), respectively. DOT-SP 7951 states that the containers must be transported in the refrigerated state. PHMSA is seeking comments on whether refrigeration should be a condition of the transport of these materials. As part of the variation on the specification of these containers, the modified container will be marked as “DOT 2P1” under the provisions of new § 178.33c discussed separately in this rulemaking.

We are also proposing to include DOT 2P1 as an authorized metal aerosol container under § 173.306(a)(3)(iii). We see no reason to limit this container to foodstuffs or soaps under paragraph (b)(1) because the pressure limit for the contents is the same as the current requirement for a DOT 2P container, and the safety factor of the minimum burst pressure under the SP is greater than that for a DOT 2P container (270 psig vs. 240 psig). We are not proposing to adopt the burst pressure requirement because the SP requirements are such that the pressure relief system of these containers must function at a pressure below the burst pressure. Also, the DOT 2P1 would be authorized for both Division 2.1 and 2.2 aerosols under § 173.306(a)(3)(iii).

DOT 2Q inner nonrefillable metal containers. Limited quantities of compressed gas are authorized in metal aerosol containers (see § 171.8 of the HMR). Paragraph (a)(3) introductory text of this section authorizes metal aerosol containers under certain conditions including packaging types and pressure thresholds. The current regulations under § 173.306(a)(3)(iii) require use of a DOT 2Q container for pressures exceeding 160 psig at 54.4 °C (130 °F) but not to exceed 180 psig. DOT-SP 12573 authorizes the transport of “Aerosols, non-flammable,” UN1950 in non-DOT specification containers that conform to DOT 2Q specifications except for some modifications. The containers must have maximum pressures for the contents of 198 psig at 54.4 °C (130 °F).

Based on review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to adopt the modified DOT 2Q as an authorized metal aerosol container. However, we are differing marginally from the permit in that we are adopting a maximum pressure threshold of 200 psig at 55 °C (131 °F). There is no safety basis for the 200 psig ceiling other than we believe it is a cleaner cutoff point than the 198 psig maximum found in the permit. As part of the variation of the specification of a DOT 2Q container, the modified container will be marked as “DOT 2Q1.”

This proposed rule would also expand authorized materials to include Division 2.1 aerosols. We see no reason to limit the use of this container to non-flammable aerosols based on the record of use for this container and that DOT 2Q containers currently authorized in the HMR are allowed to be used for all defined aerosol types, however, we invite comment on the suitability of the container for all aerosol types. See the associated discussions for §§ 173.304 and 178.33d.

DOT-SP 13581 is linked to the above proposed provision in that it authorizes the use of metal aerosol containers manufactured, tested, and marked according to DOT-SP 12573. We believe with the adoption of the modified DOT 2Q container (i.e., a DOT 2Q1 container), this SP will no longer be needed.

Alternatives to Testing of Metal Aerosol Containers by a Hot Water Bath Test

As a condition of the use of a metal aerosol container, each container, after being filled, must be subjected to a hot water bath to raise the internal pressure to such a degree that leakage or permanent deformation, if any, can be determined (see § 173.306(a)(3)(v)). The provision also provides for a testing protocol for a container where the contents may be sensitive to heat. Currently, this is the only method authorized for determining leakage or permanent deformation and thus, fillers that have developed other protocols or that do not want to subject their products to a hot water bath test must obtain a SP. A number of SPs that authorize the use of alternative methods to determine leakage or permanent deformation are discussed as follows:

(1) Alternate hot water bath test. DOT-SP 12995 authorizes a methodology that is a combination of a hot water bath test, a weight test, and visual inspection. Rather than subjecting each filled container to a hot water bath test, only one container out of each lot is subjected to the hot water bath test, a second is subjected to a weight test, the results of which must be compared to weight specification for the container as outlined in quality control procedures, and finally, the remainder of the lot must be visually inspected by examining the valve, crimp, and seam areas for evidence of leakage.

Based on review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to adopt DOT-SP 12995. The permit authorizes only DOT 2Q containers but we are applying it to all authorized metal aerosol containers. While determining if DOT-SP 12995 was suitable for inclusion in this rulemaking, PHMSA's technical evaluators confirmed that the methodology that includes a combination of hot water bath test, weight test, and visual inspection may be performed on a DOT 2P as well as a DOT 2Q. Since these containers are similar designs except in terms of strength, this alternative to the hot water bath test is applicable to any metal container. Previously, most applicants of DOT-SP 12995 only requested 2Q because that is what they needed for their particular hazmat, but that does not mean that alternative testing is not good for similar containers. Additionally, the permit applies to specific filling conditions but we will apply this testing method to containers complying with the current filling conditions in § 173.306(a)(3). Finally, we vary from the permit with our proposed language in that we require maintenance and access to operating procedures especially with regard to the weight test and specification in order to effect a broader application of this alternative. Rather than specify standards, we will allow persons to develop their own procedures that best fit their product on the condition that DOT has access to these procedures. We invite comment on this approach and others. In our proposal, for purposes of this alternative, we designate a lot as 2,000 containers consistent with the SP. We invite comment on whether we should specify a lot size, allow persons to determine the lot size, and if so, how the testing procedures should be modified to accommodate larger lot sizes.

(2) Automated in-line pressure test. DOT-SPs 14429, 14623, 14625, 14627, 14723, 14724, 14786, 14842, 14887, 14953, 15135, 15265, 15427, and 15972 all authorize the use of an automated process to check the pressure of filled containers (i.e., an “automated in-line pressure check”) instead of subjecting the containers to a hot water bath. Based on review of the SPs and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to adopt the provisions of these SPs, specifically authorizing the use of an automated process for pressure checks that does not involve a hot water bath. The safety control measures for the “automated in-line pressure check” vary greatly among the SPs with regard to the criteria for rejection, limits on the filling of contents, inspection, and corrective action. We are seeking comments on whether the proposed +/−0.5% accuracy of the pressure measuring instrument is appropriate for widely-used automated equipment for aerosols. Rather than attempt to develop a standard that might not address all possible variations on an automated process, we have opted to propose a performance-based requirement that adopts parts of all of the SPs. Specifically, we propose to require the development of operating procedures (which we believe most entities should already have as part of their processes), we provide for basic components that the procedures must address (e.g., inclusion of rejection criteria), and we require written record of the operating procedures be made accessible to DOT representatives. We invite comment on the merits of this approach.

(3) Weight test. DOT-SP 14440 authorizes the use of a process to check the weight of filled containers (i.e., an “automated in-line pressure check”) instead of subjecting the containers to a hot water bath. Based on review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to adopt the scope of this SP, specifically authorizing the use of weight checks as a means to determine compliance with pressure requirements. Comparison of the weight of a container against the pre-determined target weight for the container provides an indication of the filling of the container. For example, a container with a weight greater than that of the target weight provides an indication of overfilling and thus, would likely exceed the authorized pressure limit at 55 °C (131 °F). We have opted to propose a performance-based requirement that adopts parts of all of the SPs. Specifically, we propose to require the development of operating procedures (which we believe most entities should already have as part of their processes), we provide for basic components that the procedures must address (e.g., a supplementary heat test for rejection of a lot), and we require written record of the operating procedures accessible to DOT representatives. We invite comment on the merits of this approach.

(4) Leakage test. DOT-SP 14544 authorizes the use of a high pressure air test on empty containers combined with a leakage test for filled containers instead of subjecting the containers to a hot water bath. The testing protocol for filled containers found in this SP is currently applied to plastic containers under paragraph (a)(5) of this section in the HMR, however, the pressure and leakage test of the empty containers differs in its application. Under DOT-SP 14544, each empty container must be pressure tested at 120 psig instead of the HMR requirement that each empty container must be subjected to a pressure equal to or in excess of the maximum expected in the filled containers at 55 °C (131 °F), and that is at least two-thirds of the design pressure of the container. Under both tests, if there is evidence of leakage, the container must be rejected. Based on review of the permit, no discovery of compliance violations or incidents associated with the transport history of the permit, and a similar requirement currently under the HMR, we are proposing to adopt the scope of this SP, specifically authorizing the use of a leakage test as a means to determine compliance with pressure requirements. Our implementation will differ from the SP in that we are proposing to adopt the leakage testing requirements under § 173.306(a)(5)(v), but including the DOT-SP 14544 testing protocol for empty containers as an alternative. We invite comment on our approach to adopt this SP.

Accumulators. The HMR provides for special considerations for limited amounts of compressed gas in accumulators. DOT-SP 8786 authorizes the transport of accumulators under an alternative testing procedure from what is outlined in paragraph (f)(2) and (f)(3) of this section. Instead of testing each accumulator to three times (3x) the charge pressure, the SP provides for conditions to test one accumulator out of each lot of 1,000 to the burst design pressure, and two accumulators to two and a half times (2.5x) the charge pressure. Based on review of the permit, no discovery of compliance violations or incidents associated with the transport history of the permit, and the lengthy history of use of this SP, we are proposing to adopt DOT-SP 8786 except for the specific conditions for the preparation for testing of the accumulators.

Aerosol disposal. The general packaging requirements of the HMR forbid the transport of leaking or improperly-filled packages. This includes aerosol containers that are found to be leaking or improperly filled as part of a combination packaging. Although the HMR provides for conditions to allow for the transport of damaged, defective, or leaking packages under salvage packaging provisions in § 173.3(c) and (d) for salvage drums and salvage cylinders, respectively, these provisions do not apply to aerosol containers that are leaking or improperly filled. Thus, shippers (fillers) with defective aerosol containers (“waste aerosols”) are limited to onsite disposal of aerosol containers that do not comply with the HMR. DOT-SP 11296 provides for an option to transport these containers to an offsite facility for disposal under certain conditions (e.g., overpacking in DOT specification packagings, modal restrictions, etc.).

Based on review of the permit, no discovery of compliance violations or incidents associated with the transport history of the permit, and that adoption would allow for the transport of these aerosols for proper disposal, we are proposing to adopt the general scope of DOT-SP 11296 but with some differences. The proposed language is not limited to flammable aerosols such as indicated in the language in DOT-SP 11296. Also, the proposed regulatory language is modeled after the salvage packaging requirements of § 173.3(c) in that: (1) The authorized outer packaging for overpacking the defective cylinders has been expanded to include other metal drums (i.e., 1B2 and 1N2); (2) a condition for cushioning and absorbent material, when necessary, has been added; and (3) an “aerosol salvage” drum marking has been adopted. We invite comment on several aspects of these proposed provisions including authorized aerosols, (e.g., are there concerns with allowing aerosols other than flammable aerosols only in the drums?), authorized outer packaging, hazard communication, and authorized transport modes.

Part 178

Section 178.33c

Under the HMR, certain DOT specification containers with restricted capacity and commonly referred to as “aerosol containers” are authorized for transport of compressed gases and for liquefied compressed gases under limited situations. These containers include DOT 2P (inner non-refillable metal) containers. The specification standards are outlined in § 178.33 of the HMR, but the specification does not provide for variations on the standards. Thus, technological advances or design changes to satisfy customer needs are such that the resulting metal containers would not comply with the standards for a DOT 2P container, nor any other container authorized under either §§ 173.304 or 173.306 of the HMR. DOT-SPs 13601 and 14503 (also 7951) provide for a variation on the DOT 2P container specifications by authorizing construction of the container according to modifications to the standards for manufacture and testing.

These variations on a 2P container are equipped with some manner of pressure relief system (e.g., a rim-vent release device or a dome expansion device) that must function within a certain pressure range, otherwise the container is rejected. In effect, these containers are designed to buckle to relieve pressure before bursting. For example, for a container built to DOT-SP 13601, the pressure relief system must function between 175 psig and 210 psig or be rejected. However, we have no specific information in the special permit(s) on the relationship between the functional range and the tested burst pressure. The current requirements for a container for foodstuffs under § 173.306(b)(1) is that the pressure of the contents cannot exceed 140 psig at 130 °F and the container must be capable of withstanding a pressure of 1.5x the contents at 130 °F without bursting. Thus, 140 psig of contents equates to a minimum burst pressure of 210 psig. Additionally, the current minimum burst pressure for a DOT 2P container is 240 psig (§ 178.33-8). Using the DOT-SP 13601 requirements, the minimum burst pressure requirement is listed as 270 psig (assumed at 130 °F) and the pressure of contents at 130 °F may not exceed 160 psig thus, equating to approximately 1.7x the contents at 130 °F without bursting (which is more stringent than for a 2P under the HMR). However, accounting for the pressure range for operation of the relief system at 175 psig to 210 psig, the multiplier based on the maximum pressure of the contents is approximately 1.1x to 1.3x the contents. That is, the relief system must function within 1.1x to 1.3x the pressure of the contents at 130 °F.

This is further complicated under DOT-SP 14503 (and 7951) where the standard for the pressure of the contents is set at 75 °F for which we do not have an equivalent requirement under the HMR. Additionally, the ranges for functioning of the relief systems have a higher upper bound, 175 to 250 and 175 to 235, respectively. And, finally there is no minimum burst pressure specified in DOT-SP 14503 (and 7951); therefore, we must default to the DOT 2P minimum burst pressure of 240 psig. Again, the circumstances are unclear in that the upper bounds for the functional ranges approach or exceed the 2P minimum burst pressure yet we do not have information on the actual tested burst pressure which could be much larger. Therefore, based on the requirements of DOT-SP 13601, we propose to implement a requirement that for containers with pressure relief systems, the upper bound of the functional range for a pressure relief system must be no greater than 80% of the minimum burst pressure or the recorded test pressure. We invite comment on using this approach and whether it would be preferable to implement a requirement for the upper bound of the range based on the pressure of the contents?

Overall, based on review of the permit and no discovery of safety issues or incidents associated with the transport history of the permit, we are proposing to incorporate the standards for the modified DOT 2P container found in DOT-SP 13601 (and likely 14503 (7951)) as a variation on the DOT 2P container design. This variation would be required to be marked as a “DOT 2P1.” Rather than repeat in total the DOT 2P specification standards that have remained the same for a DOT 2P1 container, we propose to instruct the reader that all standards for a DOT 2P1 remain the same as those for a DOT 2P except for the variations outlined in a proposed new § 178.33c-2.

Section 178.33d

Under the HMR, certain DOT specification containers with restricted capacity and commonly referred to as “aerosol containers” are authorized for transport of compressed gases and for liquefied compressed gases under limited situations. These containers include DOT 2Q (inner nonrefillable metal) containers. The specification standards are outlined in § 178.33a of the HMR but the specification does not provide for variations on the standards. Thus, technological advances or design changes to satisfy customer needs are such that the resulting metal containers would not comply with the standards for a DOT 2Q container, nor any other container authorized under either §§ 173.304 or 173.306 of the HMR. DOT-SP 12573 provides for a variation on the DOT 2Q container specifications by authorizing construction of the container according to modifications to the standards for type and size, manufacture, wall thickness, and testing. DOT-SP 14503 also provides for a variation on the DOT 2Q container specification by authorizing construction of the container according to modifications to its manufacture and testing.

These variations on a 2P container are equipped with some manner of pressure relief system (e.g., a rim-vent release device or a dome expansion device) that must function by a certain threshold level or within a certain pressure range, otherwise the container is rejected. In effect, these containers are designed to buckle to relieve pressure before bursting. For example, for a container built to DOT-SP 12573, the minimum pressure before the system buckles is 220 psig (and if not equipped with a pressure relief system, the container may not burst below 320 psig). The maximum pressure of the contents authorized under this SP is 198 psig at 130 °F (we proposed at maximum level of 200 psig based on this SP in the § 173.306 discussion for 2Q containers). The current requirements for a 2Q container under § 173.306(a)(3)(ii) is that the pressure of the contents cannot exceed 180 psig at 130 °F and the container must be capable of withstanding a pressure of 1.5x the contents at 130 °F without bursting. Applying the same multiplier to 200 psig, the container must withstand 300 psig without bursting. The DOT-SP 12573 minimum burst pressure of 320 psig is more stringent; however, the calculated burst pressure of 300 psig based on the proposed maximum pressure of contents is also greater than the current required minimum burst pressure of 270 psig for a 2Q container. Thus, it provides a greater margin of safety than current required but also provides some opportunity for relief as a standard. We propose to adopt a 300 psig minimum burst pressure for this modified 2Q container. Also, we propose to require buckling of the system at 75% of tested burst pressure (with a minimum burst test pressure of 300 psig). We invite comment on these approaches for adoption of the provisions for the modified 2Q container under DOT-SP 12573. Based on review of the permit and no discovery of incidents associated with the transport history of the permit, we are proposing to adopt the standards for the modified DOT 2Q container found in DOT-SP 12573 as a variation on the DOT 2Q container design. This variation would be required to be marked as a “DOT 2Q1.”

The requirements under DOT-SP 14503 operate differently in that the standard for the pressure of the contents is set at 75 °F to which we do not have an equivalent requirement under the HMR. Additionally, the SP provides for a range of pressure for functioning of the relief systems, specifically, 180 to 300 psig. And, finally there is no minimum burst pressure specified in DOT-SP 14503 so we must default to the DOT 2Q minimum burst pressure of 270 psig. The upper bound for the functional range exceeds the 2Q minimum burst pressure yet we do not have information on the actual tested burst pressure which could be much larger. Therefore, based on a similar proposal to implement provisions of DOT-SP 13601 for 2P containers (see the § 178.33c discussion), the upper bound of the functional range for a pressure relief system must be no greater than 80% of the test pressure. We invite comment on using this approach and whether it would be preferable to implement a requirement for the upper bound of the range based on the pressure of the contents.

Based on review of the permit and no discovery of incidents associated with the transport history of the permit, we are proposing to adopt the standards for the modified DOT 2Q container found in DOT-SP 14503 as a variation on the DOT 2Q container design. This variation would be required to be marked as a “DOT 2Q2.” Rather than repeat, in total, the DOT 2Q specification standards for each of these modified containers that have remained the same, we propose to implement the proposals in this section by instructing the reader that all standards for a DOT 2Q1 or a DOT 2Q2 remain as for a DOT 2Q except for the variations outlined in proposed new §§ 178.33d-2 and 178.33d-3. We invite comment on this method of implementing these modified DOT 2Q specification containers.

C. Cargo Tanks/Rail Cars/Portable Tanks

Part 173

Section 173.315

Section 173.315 specifies the bulk packaging provisions for liquefied compressed gases in UN and DOT specification cargo tanks and portable tanks. DOT-SP 12576 authorizes non-DOT specification cargo tanks for the transportation of UN1080, Sulfur hexafluoride, that otherwise conform to the MC 331 specifications except for design pressure, capacity, and marking. The cargo tanks are designed and built in conformance with Section VIII, Division 1, of the ASME Code, and the design pressure may not exceed 600 psig. Additionally, the water capacity range for each tank ranges from a minimum of 15 gallons to a maximum of 500 gallons. Based on our review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to revise the § 173.315(a)(2) Table by referring to a new Note 28 in the entry for “Division 2.2, materials not specifically provided for in this table” as Sulfur hexafluoride is not listed by name in the table. New note 28 codifies such tanks specified in DOT-SP12576 for the transportation of Sulfur hexafluoride. PHMSA is soliciting comment on whether this amendment should include other compressed gases and whether the prescribed design pressure or capacity should be revised in a final rule.

Section 173.319

Section 173.319 prescribes the loading and packaging provisions for cryogenic liquids transported in tank cars. Currently, the HMR authorizes a maximum of 10 psig in a DOT 113C120W tank car containing UN1038, Ethylene, refrigerated liquid, when offered for transportation by rail. DOT-SP 12039 authorizes the transportation in commerce of DOT 113C120W tank cars containing Ethylene, refrigerated liquid, at an internal pressure of 20 psig instead of the maximum 10 psig. Based on our review of the permit and no discovery of compliance violations or incidents associated with the transport history of the permit, we are proposing to revise the paragraph (d)(2) Table by authorizing a maximum of 20 psig consistent with DOT-SP 12039.

D. Operational Air/Vessel

Part 172

Sections 172.101 (Hazardous Materials Table) and 172.102 Special Provisions

Section 172.101 provides instructions for using the Hazardous Materials Table (HMT) and the HMT itself. Column 7 of the HMT specifies codes for special provisions applicable to hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. When Column 7 of the HMT refers to a special provision for a hazardous material, the meaning and requirements of that special provision are as set forth in § 172.102 (Special provisions).

In this NPRM, PHMSA is proposing to revise Column 7 for several entries to add the vessel-specific special provision “W11.” This special provision would allow, when offered for transportation by vessel, certain materials to be offered in the same transport unit with foodstuffs and cargo of an organic nature provided a distance of 3m (10 feet) is maintained between the hazardous materials and foodstuffs or cargo of an organic nature. The affected entries are as follows:

Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials.

• Benzaldehyde, UN1990
• Corrosive liquid, acidic, inorganic, n.o.s, UN3264, PG II and III
• Corrosive liquid, acidic, organic, n.o.s., UN3265, PG II and III
• Extracts, flavoring, liquid, UN1197, PG II and III
• Flammable liquids, corrosive, n.o.s., UN2924, PG III
• Phosphoric acid solution, UN1805

Special Provision W11

Currently, § 176.800(a) of the HMR specifies that each package requiring a Class 8 (corrosive) label being transported by vessel must be stowed clear from living quarters and away from foodstuffs and cargo of an organic nature. In addition, § 176.800(b) prohibits packages requiring a Class 8 (corrosive) label from being stowed over any readily combustible material. DOT-SP 11691 authorizes deviation from the segregation requirements for vessel stowage when shipped in the same transport unit of certain flammable, Class 9 (miscellaneous), and corrosive liquids that are the ingredients of soft drinks (beverages). DOT-SP 11691 also allows these packages of certain corrosive liquids to be stowed over packages of other specifically authorized flammable liquids. During the review of this SP, PHMSA noted that the transport conditions found in DOT-SP 11691 are different from the currently authorized segregation from foodstuffs requirements found in the International Maritime Dangerous Goods (IMDG) Code sections 7.3.4.2.1 and 7.3.4.2.2, in that a segregation distance of 3 m (10 ft) from foodstuffs is required by the IMDG Code.

Based on our review, DOT-SP 11691 did not reveal safety incidents associated with its transport history. Therefore, we are proposing to adopt new special provision “W11” to adopt the operational control provisions of DOT-SP 11691 as well as the additional requirement that packages requiring Class 8 labels must be separated within the transport unit by a distance of 3 m (10 ft) from foodstuffs and cargo of an organic nature. The SP includes specific technical names that are authorized, but to be more consistent with the IMDG Code provisions, PHMSA is proposing to extend the exception to all packages offered for transport under any of the proper shipping names (and associated packing group) to which this special provision is assigned. The proposed special provision W11 would allow entries assigned this special provision, when offered for transportation by vessel, to be offered in the same transport unit with foodstuffs and cargo of an organic nature provided a distance of 3m (10 feet) is maintained between the hazardous materials and foodstuffs or cargo of an organic nature. Class 8 (corrosive) materials assigned this special provision would also be allowed to be stowed over packages of flammable liquids also assigned this special provision.

Part 176

Section 176.90

Section 176.90 prescribes requirements for private automobiles carrying Class 1 hazardous materials on board ferry vessels. There are four SPs that provide relief for ferry transport of private automobiles carrying engines, gasoline, and propane. DOT-SP 7465, 11150, 13213, and 14458 all contain slightly different provisions to facilitate this process safely. Where differences exist between these permits, PHMSA has attempted to choose the least restrictive provision for adoption. PHMSA specifically requests comments on this approach.

PHMSA is proposing to renumber the existing lone paragraph as paragraph (a), and to add a new paragraph (b) to adopt an exception for “Engines, internal combustion, flammable gas powered or flammable liquid powered, including when fitted in machinery or vehicles (i.e. motor vehicles, recreational vehicles, campers, trailers), vehicle flammable liquid or flammable gas powered, gasoline, and petroleum gases, liquefied or liquefied petroleum gas” when included as part of a motor home, recreational vehicle, camper, or trailer when carried on board ferry vessels subject to certain operational controls.

In this NPRM, PHMSA is proposing to revise this section to allow items normally offered as engines, vehicles, gasoline, or propane in private automobiles aboard ferry vessels to receive exceptions with certain restrictions. These restrictions include: (1) Cylinders must be visually inspected for defects, cracks, or leaks, and gasoline containers must show no signs of damage or leakage; (2) cylinders of liquefied petroleum gas must have the cylinders securely attached to recreational vehicles; (3) extra containers of gasoline (including camp stove or lantern fuel) and portable cylinders of liquefied petroleum gas (including cylinders for camping equipment) not securely attached to recreational vehicles must be stowed in the vessel's paint locker; (4) liquefied petroleum gas cylinders must be secured by closing the shut-off valves prior to the recreational vehicles being loaded on the vessel; (5) the owner or operator of each recreational vehicle must be directed to close all operating valves within the vehicles, (6) “no smoking” signs must be posted on the vehicle decks and, if used for storage of hazardous materials in close proximity to the vessel's paint locker; (7) a continuous patrol of the vehicle decks must be made by a crewmember, and any unusual or dangerous situation must be reported to the vessel's master; (8) passengers are allowed on the vehicle decks, but are subject to the control of the crew personnel conducting the continuous vehicle deck patrol; (9) vessel personnel responsible for performing any function in the proposed section must be trained in accordance with Subpart H of Part 172; and (10) shipments made under this section are subject to the Hazardous Materials Incident Reporting requirements.

E. Operational Highway/Rail/Shipper/Other

Part 171

Section 171.8

Section 171.8 defines terms generally used throughout the HMR that have broad or multi-modal applicability. PHMSA is proposing to add the following definition based on the proposed adoption of DOT-SP 11458:

Display pack: This term means a package intended to be placed on the floor of retail stores which is designed to provide direct customer access to consumer commodities contained within the package when all or part of the outer fiberboard packaging is removed.

DOT-SP 11458 authorizes the transportation in commerce of display packs of consumer commodity packages or limited quantity packages that exceed the 30 kg gross weight limit. The provisions of DOT-SP 11458 are being proposed for adoption into § 173.156. However, the term “display pack” is not currently defined in the HMR. Therefore, in this NPRM we are proposing to adopt the definition for “display pack” under § 171.8 based upon the definition found in DOT-SP 11458.

Part 172

Section 172.102

Section 172.102 lists Special Provisions applicable to the transportation of specific hazardous materials. Special Provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. PHMSA is proposing the following revisions to the § 172.102, Special Provisions:

Special Provision 380

PHMSA proposes to add Special Provision 380 to adopt SP 10705. This SP provides relief from the segregation requirements of § 177.848(d) for the transport of UN1092, Acrolein, stabilized by private carrier in a motor vehicle. The SP prescribes the packaging that must be used and the materials with which acrolien, stabilized may be loaded. The SP further specifies that the motor carrier must maintain a satisfactory safety rating as prescribed in part 385 of CFR Title 49. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to adopt its provisions in its entirety in this Special Provision. The provisions of DOT-SP 10705 are specific to UN1092, Acrolein, stabilized; therefore, this Special Provision is assigned exclusively to that HMT entry.

Special Provision 381

PHMSA proposes to add Special Provision 381 to adopt SP 7991. This SP provides relief from the HMR for the transportation of railroad flagging kits by highway. See § 173.184 for a detailed discussion of the proposed adoption of DOT-SP 7991. This Special Provision is assigned to the following HMT entries: Fusee (rail or highway) (NA1325, Division 4.1, PG II; Articles, pyrotechnic (UN0431, Division 1.4G, PG II); Signal Devices, hand (UN0373, Division 1.4S, PG II); Signal Devices, hand (UN0191, Division 1.4G, PG II); and Signals, railway track, explosive (UN0193, Division 1.4S, PG II).

Special Provision 382

PHMSA proposes to add Special Provision 382 to adopt SP 8006. This SP provides relief from the labeling requirements of § 172.400(a) for the transportation of toy plastic or paper caps for toy pistols by motor vehicle, railcar, cargo vessel, and cargo aircraft. See § 172.400a(a)(8) for a detailed discussion of the proposed adoption of DOT-SP 8006. This Special Provision is assigned to the following HMT entries: Articles, explosive, n.o.s. (UN0349) and Toy caps (UN0337).

Special Provision 383

PHMSA proposes to add Special Provision 383 to adopt SP 11356. This SP authorizes material meeting the conditions for high viscosity flammable liquids specified in § 173.121(b)(1)(i), (b)(1)(ii), and (b)(1)(iv), to be re-classed to Packing Group III for transportation by motor vehicle. The SP prescribes packaging, capacity limitations, and load securement requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in the transportation of these materials while maintaining an equivalent level of safety, we are proposing to adopt the provisions of the SP in its entirety in this Special Provision. This Special Provision is assigned to the following HMT entries: Coating solution (UN1139, PG II) and paint (UN1263, PG II).

Special Provision 384

PHMSA proposes to add Special Provision 384 to adopt SP 11666. This SP authorizes the transportation of green graphite electrodes and shapes that are large single component solid objects not subject to sifting, in open rail flat cars, open bed motor vehicles, and intermodal containers. The SP prescribes load securement requirements for the electrodes and shapes. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in the transportation of these articles and materials while maintaining an equivalent level of safety, we are proposing to adopt the provisions of the SP in its entirety in this Special Provision. This Special Provision is assigned to the following HMT entries: Other regulated substances, n.o.s. (NA3077, PG III) and Environmentally hazardous substances, solid, n.o.s. (UN3077, PG III)

Special Provision 385

PHMSA proposes to add Special Provision 385 to adopt SP 13343. This SP authorizes the use of cargo heaters when weather conditions are such that the freezing of certain wetted explosive material is likely. Shipments must be made by private, leased or contract carrier vehicles in exclusive use. Cargo heaters must be reverse refrigeration (heat pump) units. Shipments made in accordance with the SP are excepted from the anti-freeze requirements of § 173.60(b)(4). Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility to motor carriers engaged in the transportation of these explosive materials while maintaining an equivalent level of safety, we are proposing to adopt the provisions of the SP in its entirety in this Special Provision. The provisions of DOT-SP 13343 are specific to Trinitroresorcinol, wetted or Styphnic acid, wetted with not less than 20% water, or mixture of alcohol and water by mass (UN0394); therefore this Special Provision is assigned exclusively to that HMT entry.

Special Provision B130

PHMSA proposes to add Special Provision B130 to adopt SP 14525. This SP provides relief from the HMR except for the shipping paper requirements of Subpart C of Part 172, emergency response information as required by § 172.602, and the marking requirements of § 172.302,(a), (b), and (d) when transporting used diatomaceous earth filter material by highway. The SP prescribes packaging, quantity limitations, and the required method of storing the packages within the motor vehicle. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility to private motor carriers engaged in pest control operations while maintaining an equivalent level of safety, we are proposing to adopt the provisions of the SP in its entirety in this Special Provision. The provisions of SP 14525 are specific to self-heating solid, organic, n.o.s. (UN3088); therefore this Special Provision is assigned exclusively to that HMT entry.

Section 172.202

Section 172.202 establishes requirements for shipping descriptions on shipping papers. As part of these shipping paper requirements, in many situations a net or gross quantity of the hazardous materials must be included. SP 11811 provides relief from this requirement for local collections operations transporting hazardous materials and hazardous substances by highway that are “household wastes” as described in 40 CFR 261.4 and not subject to the Environmental Protection Agency's hazardous waste regulations in 40 CFR, Parts 262 and 263. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility to shippers while maintaining an equivalent level of safety, we are proposing to revise paragraph (c) of § 172.202 to adopt the provisions of SP 11811 in its entirety.

Section 172.315

Section 172.315 establishes requirements for the marking of packages containing limited quantities of hazardous materials. For transportation by highway by private carrier SP 11197 provides relief from the requirement to display the limited quantity marking on packages containing materials assigned to Packing Groups II and III prepared in accordance with the limited quantity requirements in Part 173. The relief offered by SP 11197 does not include materials assigned to Classes 1, and 7, and Division 6.1 and 6.2 materials. The SP prescribes inner packaging and package quantity limitations; the maximum gross weight of packages that may be transported in one vehicle; and special package marking requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (a)(3) to § 172.315 to adopt the provisions of SP 11197 in its entirety.

Section 172.400a

Section 172.400a provides exceptions from the § 172.400 general labeling requirements for packages or containment devices containing hazardous materials and offered for transportation or transported in commerce. SP 8006 provides relief from the § 172.400 general labeling requirements for toy plastic or paper caps for toy pistols described as “UN0349, Articles, explosive, n.o.s. (Toy caps), 1.4S, PG II” or “NA0337, Toy caps, 1.4S, PG II” when offered for transportation by motor vehicle, rail freight, cargo vessel, and cargo aircraft. The toy plastic or paper caps must have been examined in conformance with § 173.56 and approved by the Associate Administrator for Hazardous Materials Safety. The SP specifies that the toy plastic or paper caps must be in the form of sheets, strips, rolls, or individual caps and further specifies the maximum average explosive composition of each cap. The SP also prescribes quantity limitations and packaging, segregation, and special marking requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (a)(8) to § 172.400a to adopt the provisions of SP 8006 in its entirety.

Part 173

Section 173.12

Section 173.12 provides certain exceptions and authorizations for the transportation of waste materials. SP 11470 authorizes transportation by motor vehicle and cargo vessel of shrink-wrapped pallets containing boxes of waste ORM-D or limited quantity materials when marked with the word “WASTE” on the outside of the pallet instead of each individual box. The SP prescribes packaging and marking requirements for the waste materials. In addition, under a petition for rulemaking under petition number P-1611, COSTHA also requested that PHMSA adopt this SP into the HMR. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (h) to § 173.12 to adopt the provisions of SP 11470 in its entirety.

Section 173.29

Section 173.29 prescribes certain requirements, exceptions, and authorizations for the transportation of empty packagings. SP 9610 provides relief from complete shipping papers and the placarding requirements of subpart F of part 172 for smokeless powder residue when transported by motor vehicle or railcar in “Container-on-flat-car” (COCF) or “Trailer-on-flat-car” (TOCF) service. The smokeless powder must be approved in conformance with § 173.56 as a Class 1 explosive substance. The SP prescribes packaging requirements, quantity limitations, operational controls, and a specific shipping description for the material. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to revise paragraph (f) of § 173.29 to adopt the provisions of SP 9610 in its entirety. We invite specific comment on the adoption of this SP pertaining to hazard communication.

Section 173.63

Section 173.63 provides certain packaging exceptions for the transportation of Class 1 (explosive) materials. SP 4850 authorizes Cord, detonating, or Fuse detonating, metal clad (UN0290, Div. 1.1D) to be renamed and reclassed as Cord, detonating, mild effect, or Fuse, detonating, mild effect, metal clad (UN0104, Div. 1.4D); and Charges, shaped, flexible, linear (UN0288, Div. 1.1D) to be renamed and reclassed “Charges, shaped, flexible, linear (UN0237, Div. 1.4D) and transported by motor vehicle, railcar, cargo vessel, and cargo aircraft. The SP prescribes packaging requirements and quantity limitations. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to revise paragraph (a) of § 173.63 to adopt the provisions of SP 4850 in its entirety.

Section 173.156

Section 173.156 provides certain exceptions and authorizations for the transportation of limited quantities and other regulated materials (ORM). For transportation by railcar in trailer-on-flat-car (TOFC) or container-on-flat-car (COFC) service, or roadrailer and/or railrunner trailers or by motor vehicle, or cargo vessel SP 11458 authorizes display packs of consumer commodity packages that exceed 30 kg gross weight. See § 171.8 for a discussion of the proposed addition of the definition of “display pack.” The SP prescribes packaging and marking requirements and quantity limitations. In addition, in a petition for rulemaking under petition number P-1607, COSTHA requested PHMSA adopt this SP into the HMR. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (c) to § 173.156 to adopt the provisions of SP 11458 in its entirety.

The proposed adoption of SP 11470 relating to exceptions for waste limited quantity and ORM-D materials is discussed in § 173.12. We are proposing to add a new paragraph (d) to § 173.156 to direct the reader to the proposed new paragraph (h) of § 173.12 which adopts the provisions of SP 11470.

Section 173.159

Section 173.159 prescribes packaging requirements for wet batteries. For transportation by motor vehicle, railcar, cargo vessel and passenger and cargo aircraft, SP 11078 excepts the transportation of nickel cadmium batteries containing potassium hydroxide, a Class 8 material from the other requirements of the HMR. The SP prescribes packaging requirements and quantity limitations. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (j) to § 173.159 to adopt the provisions of SP 11078 in its entirety.

Section 173.168

Section 173.168 prescribes specific approval, testing, protection, packaging, and equipment marking requirements for chemical oxygen generators. SP 11984 authorizes certain unapproved chemical oxygen generators with only one positive means of preventing unintentional actuation of the generator, and without the required approval number marked on the outside of the package, to be transported by motor vehicle, railcar, and cargo vessel. The SP prescribes packaging, testing and marking requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (g) to § 173.168 to adopt the provisions of SP 11984 in its entirety.

Section 173.184

Section 173.184 prescribes specific packaging requirements for the transportation of highway or rail fusees. Flagging kits transported on railroad motor vehicles including privately owned motor vehicles under the direct control of on-duty railroad employees, in conformance with SP 7991, are excepted from the requirements of the HMR. Flagging kits can only contain fusees and railroad torpedoes described as; Fusee (rail or highway) (NA1325, Division 4.1, PG II); Articles, pyrotechnic (UN0431, Division 1.4G, PG II); Signal devices, hand (UN0373, Division 1.4S, PG II); Signal devices, hand (UN0191, Division 1.4G, PG II); and Signals, railway track, explosive (UN0193, Division 1.4S, PG II). The SP prescribes packaging requirements, quantity limitations and operational controls. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (c) to § 173.184 to adopt the provisions of SP 7991 in its entirety.

Section 173.226

Section 173.226 prescribes specific packaging requirements for the transportation of Materials poisonous by inhalation, Division 6.1, Packing Group I, Hazard Zone A. When transported as prescribed in SP 11055, liquid hazardous materials in Division 6.1 Packing Group I, Hazard Zone A are excepted from the segregation requirements of §§ 174.81, 176.83, and 177.848(d). The SP prescribes packaging and testing requirements, quantity limitations, and cushioning and absorbent material requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to add a new paragraph (f) to § 173.226 to adopt the provisions of SP 11055 in its entirety.

Section 173.306

Section 173.306 provides exceptions for limited quantities of compressed gas. SP 13199 permits reconditioned (used) refrigerating machines (UN2857, Div. 2.2) to be transported under the requirements prescribed in § 173.306(e) and excepted from the marking requirements of § 172.302(c) when transported by motor vehicle, and meeting certain structure and Class A refrigerant gas weight requirements. The SP also prescribes operational controls and testing requirements. Section 173.306(e) currently permits only new (unused) refrigerating machines to be excepted from specification packaging, placarding, and certain rail and highway modal requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to a add new paragraph (e)(2) to § 173.306 to adopt the provisions of SP 13199 in its entirety.

Section 173.322

Section 173.322 prescribes specific packaging requirements for the transportation of ethyl chloride. SP 14422 authorizes transportation by motor vehicle, railcar, or cargo vessel of four ounces or less of ethyl chloride, packaged in a DOT-2P or DOT-2Q container as a consumer commodity. The SP prescribes quantity limitations and packaging, testing and marking requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in transportation while maintaining an equivalent level of safety, we are proposing to and add a new paragraph (f) to § 173.322 to adopt the provisions of SP 14422 in its entirety.

Part 174

Section 174.67

Section 174.67 establishes specific operational requirements for railroad tank car unloading. For combustible liquid or Class 3 liquid petroleum distillate fuels, SP 12002 authorizes clearing frozen liquid blockages from the outlet by attaching a fitting to the outlet line and applying nitrogen at a pressure of 50 to 100 psi. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in rail operations while maintaining an equivalent level of safety, we are proposing to revise paragraph (g) to § 174.67 to adopt the provisions of SP 12002 in its entirety.

Part 177

Section 177.820

SPs 11352, 12207, 12306, 13165, and 14945 authorize the movement of certain hazardous materials across public roads. Such movements are not subject to Subparts C (Shipping Papers), D (Marking), E (Labeling), and F (Placarding) of Part 172. The SPs prescribe operational controls. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in rail operations while maintaining an equivalent level of safety, we are proposing to add a new § 177.820 to adopt the provisions of these SPs in their entirety.

Section 177.834

Section 177.834 establishes general operational requirements for transportation by highway. SPs 9874, 13190, 13424, 13959, 14141, 14150, 14680, 14822, 14827, and 14840 authorize “attendance” of the loading or unloading of a cargo tank by a qualified person observing all loading or unloading operations by means of a video monitor located at a remote control station. These SPs prescribe operational controls and specific requirements for the video monitoring system. Based on our review, the fact that transportation conducted under these SPs have an acceptable safety record, and adopting them would provide flexibility in operations while maintaining an equivalent level of safety, we are proposing to revise paragraph (i)(3) and (i)(4) of § 177.834 to adopt the provisions of these SPs in their entirety.

SPs 13484 and 14447 authorize “attendance” of the loading or unloading of a cargo tank through the use of hoses equipped with cable connected wedges, plungers, or flapper valves located at each end of the hose, able to stop the flow of product from both the source and the receiving tank within one second without human intervention in the event of a hose rupture, disconnection, or separation. The SPs prescribe inspection requirements and operational controls for use of the hoses. Based on our review, the fact that transportation conducted under these SPs have an acceptable safety record, and adopting them would provide flexibility in operations while maintaining an equivalent level of safety, we are proposing to revise paragraphs (i)(3) and (i)(4) of § 177.834 to adopt the provisions of SPs 13484 and 14447 in their entirety.

SPs 10597, 10803, 10882, 14618, and 14726 authorize the use of diesel or propane fueled combustion cargo heaters in motor vehicles used to transport Class 3 (flammable liquid) or Division 2.1 (flammable gas) materials. The SPs prescribe operational controls for use of the heaters. Based on our review, the fact that transportation conducted under these SPs have an acceptable safety record, and adopting them would provide flexibility in operations while maintaining an equivalent level of safety, we are proposing to revise paragraph (l)(2)(i) of § 177.834 to adopt the provisions of these SPs in their entirety. In this NPRM, as the existing paragraph (l)(2)(ii) of § 177.834 relating to the Effective date for combustion heater requirements is obsolete, we are proposing its removal. In addition, we are also proposing the redesignation of paragraph (l)(2)(iii) of § 177.834 to paragraph (l)(2)(ii).

Section 177.838

Section 177.838 establishes specific operational requirements for the transportation of Class 4 (flammable solid) materials, Class 5 (oxidizing) materials, and Division 4.2 (self-heating and pyrophoric liquid) materials. Notwithstanding the segregation requirements of § 177.848(d), SP 11373 authorizes the transport on the same transport vehicle of Sodium hydrosulfite or sodium dithionite, UN1384, in Packing Group II or III; Thiourea dioxide, UN33341, in Packing Group II or III; and Self-heating, solid, organic, n.o.s., UN3088, in Packing Group II or III, with Class 8 materials. The SP prescribes packaging and separation requirements. Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in highway operations while maintaining an equivalent level of safety, we are proposing to revise the title of § 177.838 and add a new paragraph (i) to § 177.838 to adopt the provisions of SP 11373 in its entirety.

Section 177.840

Section 177.840 establishes specific operational requirements for the transportation of Class 2 (gases) materials. Notwithstanding the segregation requirements of § 177.848(d), SP 11043 authorizes the transport on the same transport vehicle of Division 2.3, Hazard Zone A materials with materials classed as Division 2.1, Class 3, Class 4, Class 5, and Class 8. The SP prescribes packaging, marking, separation requirements.

Notwithstanding the segregation requirements of § 177.848(d), SP 14335 authorizes the transport on the same transport vehicle of Division 2.3, Hazard Zone A materials with specification non-bulk packagings and IBCs containing only the residue of Division 2.1, 4.3, 5.1, and Class 3 and 8 materials. The SP prescribes separation and securement requirements, operational controls, quantity limitations, and carrier safety rating requirements.

Based on our review, the fact that transportation conducted under these SPs have an acceptable safety record, and adopting them would provide flexibility in highway operations while maintaining an equivalent level of safety, we are proposing to add a new paragraph (a)(3) to § 177.840 to adopt the provisions of SPs 11043 and 14335 in their entirety.

Section 177.841

Section 177.841 establishes specific operational requirements for the transportation of Division 6.1 and Division 2.3 materials. Notwithstanding the segregation requirements of § 177.848(d), SP 11151 authorizes transportation by highway by private or contract motor carrier of Division 6.1 Packing Group I, Hazard Zone A materials meeting the definition of a hazardous waste as provided in § 171.8 on the same transport vehicle with materials classed as Class 3, Class 4, Class 5, and Class 8. The Division 6.1 Packing Group I, Hazard Zone A materials must be loaded on pallets and separated from the Class 3, Class 4, Class 5, and Class 8 materials by a minimum horizontal distance of 2.74 m (9 feet). Based on our review, the fact that transportation conducted under this SP has an acceptable safety record, and adopting it would provide flexibility in highway operations while maintaining an equivalent level of safety, we are proposing to add a new paragraph (f) to § 177.841 to adopt the provisions of SP 11151 in its entirety.

F. Non-Bulk Packaging Specifications/IBCs

Part 172

Section 172.101

The § 172.101 HMT designates the materials listed therein as hazardous materials for the purpose of transportation of those materials. For each listed material, the HMT identifies the hazard class or specifies that the material is forbidden in transportation, and gives the proper shipping name or directs the user to the preferred proper shipping name. In addition, the HMT specifies or references requirements in this subchapter pertaining to labeling, packaging, quantity limits aboard aircraft, and stowage of hazardous materials aboard vessels. We are proposing to revise several entries in the HMT to adopt SPs relating to non-bulk packagings and IBCs. Specifically, for “UN1415, Lithium,” “UN2257, Potassium,” “UN3190, Self-heating solid, inorganic, n.o.s.,” “UN1428, Sodium,” “UN1381, Phosphorus, yellow, under water” and “UN2813, Water-reactive solid, n.o.s.” for Packing Groups II and III, we are proposing to add a reference to § 173.151 to provide packaging exceptions for relevant Hazard Class 4 materials. These proposed revisions are discussed below.

Part 173

Section 173.62

Section 173.62 provides specific packaging requirements for explosives. DOT-SP 12335 authorizes the transportation in commerce by motor vehicle, cargo vessel, and cargo aircraft when authorized in the HMT and passenger-carrying aircraft, when authorized for carriage by hazmat table and used exclusively to transport personnel to remote work sites of certain Division 1.1D and 1.4D detonating cords without the ends being sealed in alternative packaging, provided that the inner packaging containing the detonating cord is made of a static-resistant plastic bag of at least 3 mil thickness and the bag is securely closed for transportation. We have noted nine violations related to shipments moving under DOT-SP 12335. However, the violations did not involve safety issues with the permit. Thus, we propose to adopt the provisions of the SP in its entirety in § 173.62.

Section 173.150

Section 173.150 provides exceptions from the HMR for certain Class 3 flammable liquid material. This section includes exceptions for limited quantities, consumer commodities, alcoholic beverages, aqueous solutions of alcohol and combustible liquids. In this NPRM, PHMSA is proposing to add a paragraph (h) to include an exception that would permit Diesel fuel (UN1202 or NA1993) and Gasoline (UN1203) to be transported one way, by motor vehicle, directly from the loading location to an equipment repair facility in non-specification non-bulk packaging, known as a gasoline dispenser. Specifically, shipments wishing to use this exception would be required to transport the material in a gasoline dispenser and prior to loading, each dispenser must be capped or plugged all product inlet and outlet piping, so that no fluid may be released during transportation. Furthermore, no dispenser may contain more than 2 gallons of gasoline, and each dispenser must be blocked, braced or strapped to the motor vehicle to prevent movement during transportation. This revision is proposed to adopt DOT-SP 13217. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.150.

Section 173.151

Section 173.151 provides exceptions for Class 4 materials. In this NPRM we are proposing to add new paragraph (e) that would except “Lithium, UN1415,” “Potassium, UN2257,” and “Sodium, UN1428,” with a net quantity of material per inner packaging not exceeding 25 grams, from the labeling requirements of Part 172, Subpart E and the placarding requirements of Part 172 Subpart F, if they are offered for transportation or transported in the packagings with conditions set forth in that paragraph. We are also establishing new paragraph (f) to authorize shipment of Self-heating solid, inorganic, n.o.s, in unlined, non-DOT specification multi-wall paper bags containing a maximum of 55 pounds (net) weight. We are further adding new paragraph (g) to authorize Water reactive solid, n.o.s. (contains magnesium, magnesium nitrides) in Packing Group II or III to be contained in sift-proof bulk packagings. These revisions would adopt DOT-SP 11602, 13796, and 15373.

DOT-SP 11602 authorizes the transportation in commerce of certain Division 4.3 materials contained in sift-proof closed bulk packagings that prevent that prevent water from reaching the hazmat and have sufficient venting to preclude a dangerous accumulation of gaseous emissions. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.151.

DOT-SP 13796 authorizes the transportation in commerce of “UN1381, Phosphorus, yellow, under water,” in a 30 gallon UN 1A2 steel drum certified as a minimum to the PG I performance level for solids and the PG II performance level for liquids and as a minimum dual marked as a UN1A2/X400/S (for solid) and UN1A2 Y/1.4/150 (for liquids). Based on our review, the fact the SP has no violations or reported incidents, and that its adoption would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.151.

DOT-SP 15373 authorizes the manufacture, mark, sale and use of the specially designed combination packagings described herein for transportation in commerce of “UN1415, Lithium,” “UN2257, Potassium,” and “UN1428, Sodium8,” without hazard labels or placards, with quantity limits not exceeding 25 grams. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.151.

Section 173.154

Section 173.154 provides exceptions for Class 8, corrosive materials. We are proposing to establish a new paragraph (b)(3) to authorize polyethylene bottles with rated capacities of one gallon (3.785 liters), packed inside an open-top, heavy wall, high density polyethylene box for shipping Packing Group II and III corrosives. We are also proposing to establish new paragraph (e) to authorize hydrochloric acid concentration not exceeding 38%, in Packing Group II to be contained in UN31H1 or UN31HH1 intermediate bulk containers when loaded in accordance with the requirements of § 173.35(h). These revisions would adopt DOT-SP 6614, 12030, and 14137.

DOT-SP 6614 authorizes the use of polyethylene bottles placed in a polyethylene crate for the transportation in commerce of “Compounds, cleaning liquid (consisting of solutions containing potassium hydroxide, hydrochloric acid or phosphoric acid), NA1760, PG II or III,” “Corrosive liquid, basic, inorganic, n.o.s. (Potassium hydroxide), PG II, and Corrosive liquid, basic, inorganic, n.o.s. (Sodium hydroxide), PG II, UN3266,” “Corrosive liquid, acidic, inorganic, n.o.s. (Phosphoric acid and Nitric acid), UN3264, PG II” “Corrosive liquid, acidic, organic, n.o.s. (Glycolic acid), UN3265, PG III” “Hypochlorite solutions, UN1791, PG III,” “Hydrochloric acid solution (with not over 32% strength), UN1789, PG II” and “Sulfuric acid (with not more than 51% acid), UN2796, PG II.” PHMSA has on file sixty-seven violations related to shipments moving under DOT-SP 6614. However, the violations did not involve safety issues with the permit. We are proposing to adopt the permit, and extend it to all corrosive materials of Packing Groups II or III based on the history of no violations involving safety issues and no reported incidents.

DOT-SP 12030 authorizes the transportation in commerce of a combination packaging with a maximum gross weight not over 37.0 kg, consisting of one UN6HG2 composite packaging containing battery fluid and one UN4G fiberboard box containing a dry storage battery. The UN6HG2 composite packaging has a maximum capacity of 8.0 liters and is marked as meeting the requirement for Packaging Group II. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in a new paragraph (f) in § 173.154.

DOT-SP 14137 authorizes the transportation in commerce of certain hydrochloric acid solutions in UN31H1 or UN31HH1 when loaded in conformance with the requirements in § 173.35(h) and the hydrochloric acid concentration does not exceed 38%. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.154.

Section 173.158

Section 173.158 provides general requirements and exceptions for shipments and packagings of nitric acid. In this NPRM, we are proposing to establish a new paragraph (i) to authorize “Nitric acid of up to 40% concentration” in a UN1H1 non-removable head plastic drums with certain conditions set forth in that paragraph and add new paragraph (j) for the transportation of “Nitric acid, other than red fuming, with more than 70% nitric acid” and “Nitric acid, other than red fuming, with not more than 70% nitric acid” in a combination packaging when offered for transportation or transported by rail, highway, or cargo vessel. These proposed revisions would adopt DOT-SP 8230 and 14213.

DOT-SP 8230 authorizes the transportation in commerce of Packing Groups I and II nitric acids in certain combination packagings by motor vehicle, rail freight, cargo vessel and cargo-only aircraft. Specifically, “Nitric acid, other than red fuming, with more than 70% nitric acid” and “Nitric acid, other than red fuming, with not more than 70% nitric acid” is authorized to be transported in inner plastic bottles in rigid foam plastic receptacles or plastic bags lined absorbent material in outer packagings. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.158.

DOT-SP 14213 authorizes the manufacture, marking, sale and use of UN1H1 plastic drums to be used for the transportation in commerce of nitric acid with not more than 40% nitric acid. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.158.

Section 173.159

Section 173.159 provides packaging and shipping specifications and exceptions for wet batteries. We are proposing to revise paragraph (e) to include both shipments of electric storage batteries containing electrolyte or corrosive battery fluid, and electric storage batteries and battery acid. This change would adopt DOT-SP 13548.

DOT-SP 13548 authorizes the transportation in commerce of lead acid batteries and packages of battery acid with two different UN numbers on the same motor vehicle with the packages secured against movement. Based on our review, the fact the SP has no violations or reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.159.

Section 173.181

Section 173.181 sets forth packaging and shipping requirements for Pyrophoric materials (liquids). In this NPRM, we are proposing to add new paragraph (d) to authorize the transportation in commerce of certain pyrophoric materials in a combination package consisting of UN1A2 outer package and a UN1A1 inner package. This revision would adopt DOT-SP 12920.

DOT-SP 12920 authorizes the transportation in commerce of certain pyrophoric materials in a combination package consisting of UN1A2 outer package and a UN1A1 inner package, with no more than two (2) inner drums placed inside the outer drum. PHMSA has on file six violations related to shipments moving under DOT-SP 12920. However, the violations did not involve safety issues with the permit; rather, they pertained to non-compliance with the permit or the HMR. Based on our review, the fact the SP has no violations involving safety issues with the permit and no reported incidents, and adopting it would expand the general applicability in a safe manner, we are proposing to adopt its provisions in its entirety in § 173.181.

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This rulemaking is issued under the authority of the Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.). Section 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. This rulemaking proposes adoption of certain special permits into the hazardous materials regulations.

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

This proposed rulemaking is not considered a significant regulatory action under Executive Order 12866 (“Regulatory Planning and Review”), as supplemented and reaffirmed by Executive Order 13563 (“Improving Regulation and Regulatory Review”), stressing that, to the extent permitted by law, an agency rulemaking action must be based on benefits that justify its costs, impose the least burden, consider cumulative burdens, maximize benefits, use performance objectives, and assess available alternatives, and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Executive Orders 12866 and 13563 require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”

Executive Order 13610, issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. By building off of each other, these three Executive Orders require agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.”

In this notice of proposed rulemaking, PHMSA is proposing to amend the HMR to adopt provisions contained in certain widely-used or long-standing SPs that have an established safety record. The proposed revisions are intended to provide wider access to the regulatory flexibility offered in SPs and eliminate the need for numerous renewal requests, thus reducing paperwork burdens and facilitating commerce while maintaining an appropriate level of safety. PHMSA assumes that for most regulated entities in these categories, the revisions proposed in this notice of proposed rulemaking requires little or no change to existing practice or behavior and incremental compliance costs will thus be close to zero. At the same time, the potential for additional safety benefits is also very limited in these cases, as existing practice and operations are already minimizing the number of incidents.

Estimated benefits associated with this rule result from the regulated community no longer being required to apply for SP sand amount to approximately $12,000 annually. Costs associated with the rule are estimated to be negligible annually. Current SP holders are already complying with the proposed requirements and, if adopted, these requirements would not impose new requirements on current non-holders of SPs. The overall costs and benefits of the rule are dependent on the level of pre-existing compliance and the overall effectiveness of the new requirements specified in this rulemaking

C. Executive Order 13132

This notice of proposed rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), 64 FR 43255 (Aug. 10, 1999) and the President's May 20, 2009 memorandum (74 FR 24693 [May 22, 2009]). The requirements in this proposed rule would preempt state, local, and Indian tribe requirements but would not have 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 et seq., 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.

Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of these 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 2 years after the date of issuance.

This proposed rule would address subject areas (1), (2), (3), and (5) above and would preempt any state, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” as the Federal requirements. The effective date of Federal preemption is April 30, 2015.

D. Executive Order 13175

This notice of proposed rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM does not have tribal implications and does not impose substantial 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 unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. The primary costs to small entities associated with this proposed rule include developing and updating a risk assessment, developing and updating operating procedures, and additional training for hazmat employees who perform loading and unloading operations.

PHMSA expects the impacts of this rule will be limited for many small entities due to their compliance with other existing Federal regulations. In this notice of proposed rulemaking, PHMSA also explicitly acknowledges that many regulated entities are holders of SPs or are part of industry associations with voluntary codes of safe practice, and that these may be sufficient for compliance with the proposed rule as long as all of the relevant safety areas are addressed and documented. For regulated entities in these categories, the notice of proposed rulemaking requires little or no change to existing practices or behavior and incremental compliance costs will thus be close to zero. Therefore, the benefit and cost figures discussed below should be viewed as upper bounds, both of which will be reduced by the extent of current practice.

PHMSA estimates that there are 50 potentially affected small entities. The annualized documentation cost for developing and updating the risk assessment and the operating procedures is estimated to be $375/small entity. The annualized cost of additional training for affected employees is estimated to be approximately $5.50/employee. Further, PHMSA estimates that approximately 50% of small businesses are already implementing procedures that would be compliant with this notice of proposed rulemaking. Based upon the above estimates and assumptions, PHMSA certifies that this notice of proposed rulemaking does not have a significant economic impact on a substantial number of small entities. Further information on the estimates and assumptions used to evaluate the potential impacts to small entities is available in the Regulatory Impact Assessment that has been placed in the public docket for this rulemaking.

F. Paperwork Reduction Act

PHMSA currently has an approved information collection under OMB Control No. 2137-0051, entitled “Special Permits and Approvals,” expiring on May 31, 2015. Section 1320.8(d), Title 5, Code of Federal Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This rulemaking adds new exceptions to the HMR while eliminating the need for persons to apply for a SP, resulting in a decrease in burden. PHMSA estimates the reduction in information collection burden as follows: