Hazardous Materials: Miscellaneous Amendments; Response to Appeals; Corrections

Federal Register, Volume 83 Issue 117 (Monday, June 18, 2018)

Federal Register Volume 83, Number 117 (Monday, June 18, 2018)

Rules and Regulations

Pages 28162-28168

From the Federal Register Online via the Government Publishing Office www.gpo.gov

FR Doc No: 2018-12961

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172, 173, and 180

Docket No. PHMSA-2013-0225 (HM-218H)

RIN 2137-AF27

Hazardous Materials: Miscellaneous Amendments; Response to Appeals; Corrections

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT).

ACTION: Correcting amendments.

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SUMMARY: PHMSA issues this rulemaking in response to appeals submitted to a previously-published final rule. On June 2, 2016, PHMSA published a final rule that made miscellaneous amendments to the Hazardous Materials Regulations. This final rule specifically responds to appeals to extend the effective date of certain nitric acid packaging and emergency response telephone number amendments as previously adopted. This final rule also clarifies amendments associated with the trigger date of the 10-year test period for certain MC 331 cargo tanks in dedicated propane service and corrects editorial errors.

DATES: Effective date: This final rule is effective July 18, 2018.

Voluntary compliance date: June 18, 2018.

Delayed compliance date: Unless otherwise specified, compliance with the amendments adopted in this final rule is required beginning September 17, 2018.

FOR FURTHER INFORMATION CONTACT: Michael Ciccarone, Standards and Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background

   1. Notice of Proposed Rulemaking

   2. Final Rule

2. Appeals to the Final Rule

   1. Appellants

   2. Discussion of Appeals by Affected Section

3. Corrections and Amendments

4. Regulatory Analyses and Notices

   1. Statutory/Legal Authority for This Rulemaking

   2. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13610 (Identifying and Reducing Regulatory Burdens), Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) and DOT Regulatory Policies and Procedures

   3. Executive Order 13132

   4. Executive Order 13175

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

   6. Paperwork Reduction Act

   7. Regulation Identifier Number (RIN)

   8. Unfunded Mandates Reform Act

1. Environmental Assessment

   10. Privacy Act

   11. International Trade Analysis

1. Background

   1. Notice of Proposed Rulemaking

      On January 23, 2015, PHMSA published a notice of proposed rulemaking (NPRM) under Docket No. PHMSA-2013-0225 (HM-218H); 80 FR 3787 that proposed amendments to update and clarify existing requirements of the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). Both the NPRM and the subsequent final rule--see Section I, Subsection B (``Final Rule'') of this rulemaking--are part of DOT's Retrospective Regulatory Review (RRR) process designed to identify possible improvements to the regulations through the extensive review of both the HMR and previously-issued letters of interpretation. In addition, the NPRM proposed regulatory requirements in response to seven (7) petitions for rulemaking and two (2) National Transportation Safety Board (NTSB) Safety Recommendations.

   2. Final Rule

      On June 2, 2016, PHMSA issued a final rule titled, ``Hazardous Materials: Miscellaneous Amendments (RRR),'' under Docket No. PHMSA-

      2013-0225 (HM-218H); 81 FR 35483 that made miscellaneous amendments to the HMR to update and clarify certain regulatory requirements. Based on an assessment of the proposed changes and the comments received, the June 2, 2016 final rule covered various topics including the following topics addressed in this rule:

      Emergency response telephone numbers

      Packaging instructions for certain shipments of nitric acid

      Test period extension to 10 years for certain MC 331 cargo tanks in dedicated propane delivery service

      Hazardous Materials Table revisions

      Pressure relief device testing for cargo tank motor vehicles

      Page 28163

      Organic peroxide materials

2. Appeals to the Final Rule

   1. Appellants

      In this final rule, PHMSA addresses appeals submitted by the following organizations in response to the June 2, 2016 final rule:

      Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA)

      The Dangerous Goods Advisory Council (DGAC)

      National Association of Chemical Distributors (NACD)

      United Parcel Service (UPS)

   2. Discussion of Appeals by Affected Section

      The specific concerns raised by the appellants are outlined below by section of the HMR:

      Section 172.604

      Section 172.604 prescribes emergency response telephone number requirements. In response to a petition for rulemaking (P-1597) from DGAC, PHMSA removed the allowance to use an alphanumeric telephone number as the emergency response telephone number listed on a shipping paper. Removal of this authorization eliminated time delays, which result from converting letters to numbers in extremely time-sensitive situations and present an unnecessary delay in emergency response. Therefore, PHMSA amended Sec. 172.604(a) to require the emergency response telephone number to be displayed numerically only.

      Following the June 2, 2016 final rule, UPS submitted an appeal concerning the effective date for this amendment. Specifically, UPS indicated that the July 5, 2016, effective date did not provide sufficient time to update the electronic systems used for processing hazardous material shipments and implement the new requirement to use only numeric emergency response telephone numbers. Additionally, UPS stated in its appeal that shippers may be challenged by the short transition period. UPS suggested a one-year timeframe to overcome the challenges and implement the new requirements.

      PHMSA understands the concerns raised by UPS and recognizes the need for additional time to comply with this regulatory amendment. PHMSA had accepted UPS's appeal to delay the compliance date. However, recent appellant feedback shows that the extended timeframe since the publication of the previous final rule on June 2, 2016, has allowed entities such as UPS sufficient time to update their electronic systems. PHMSA does not believe that it is necessary to extend the compliance date any further beyond the effective date and delayed compliance schedule of this final rule. See DATES. Note that PHMSA will not be taking enforcement action for non-compliance with this requirement for the period from July 5, 2016, to the effective date of this rule.

      Section 173.158

      Section 173.158 prescribes the packaging requirements for nitric acid. In response to a petition for rulemaking (P-1601) from UPS, PHMSA amended the packaging provisions for certain shipments of nitric acid by requiring intermediate packaging for glass inner packagings. In its petition, UPS expressed concern regarding incidents of fire in transport from combination packagings of wooden or fiberboard outer packaging with the glass inners. The addition of intermediate packaging for these packagings would improve safety by preventing breakage, leakage, and resulting fires. Therefore, PHMSA amended Sec. 173.158(e) to require that when nitric acid, in concentrations less than 90 percent, is packaged in glass inner packagings placed in wooden or fiberboard outer packaging, the glass inner packagings must be packed in tightly-closed, non-reactive intermediate packagings and cushioned with a non-reactive absorbent material. Previously, no intermediate packaging was required.

      COSTHA, DGAC, and NACD submitted appeals expressing concern regarding the effective date for this amendment. They stated that the July 5, 2016, effective date did not provide sufficient time for shippers to sell current inventory or process inventory through the distribution system or the supply chain. Furthermore, they argued the original effective date did not allow sufficient time for testing and development of new packaging that would comply with the new requirement. They requested a transition period of one year from the effective date of the rulemaking to allow for existing inventory to be processed and new packaging to be secured.

      PHMSA understands the concerns of the regulated community regarding the time needed to move inventory and comply with the new packaging requirements. PHMSA had accepted the appeals from COSTHA, DGAC, and NACD to extend the compliance date for the modified nitric acid packaging requirement. Recent appellant feedback shows that most shippers are able to comply with the new requirements, while a few are still working to reduce their stock of completed packages and unused packagings predating the nitric acid packaging change in the June 2, 2016, final rule. Similar to our response to the Sec. 172.604(a) changes and appeal, PHMSA will not be taking enforcement action for non-compliance with this requirement for the period from July 5, 2016, to the effective date of this rule. PHMSA is further extending the compliance date to 90 days after publication of this final rule in the Federal Register. See DATES.

      Furthermore, PHMSA has received public requests for additional clarification of the requirement for the use of non-reactive absorbent material in Sec. 173.158(e). As previously stated, when nitric acid, in concentrations less than 90 percent, is packaged in wooden or fiberboard outer packaging, in combination with glass inner packagings, the glass inner packagings must be packed in tightly-closed, non-

      reactive intermediate packagings and cushioned with a non-reactive absorbent material. In the June 2, 2016 final rule, PHMSA did not specify how much absorbent material is required for this packaging configuration. Persons have inquired on exactly how much absorbent material must be used. We clarify in this final rule that, consistent with other provisions for use of absorbent material in the HMR, the absorbent material should be in sufficient quantity to absorb the entire contents of the inner packagings.

3. Corrections and Amendments

   In this final rule, PHMSA also makes corrections to sections that were amended by the June 2, 2016 final rule and a March 30, 2017 final rule under Docket Number PHMSA-2015-0273 (HM-215N) 82 FR 15795. Specifically, we make a conforming amendment to Sec. 173.129 for organic peroxides and clarify applicable requirements for cargo tank motor vehicle (CTMV) periodic tests and inspection. A section-by-

   section summary of these corrections is as follows:

   Part 172

   Section 172.101

   This section prescribes the purpose and instructions for use of the Sec. 172.101 Hazardous Materials Table (HMT). We are making editorial corrections to two entries in the HMT. For the entry ``UN0501, Propellant, solid'' the Packing Group (PG) in Column (5) is removed as it was inadvertently re-added in the March 30, 2017 final rule (HM-

   215N). For the entry ``UN0190, Samples, explosive, other than initiating explosives'' the PG in Column (5) is removed for consistency with revisions to all other Class 1 explosive entries

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   made in the June 2, 2016 final rule. Under that rule, all references to PG II in the HMT for explosives were removed as unnecessary because explosives are not assigned packing groups.

   Part 173

   Section 173.129

   Section 173.129 prescribes the requirements for assigning a PG to organic peroxides. Specifically, this section assigns PG II to all organic peroxides. The June 2, 2016, final rule removed the PG designation for all organic peroxides in the Sec. 172.101 Hazardous Materials Table (HMT) to harmonize with international standards. However, the text that assigns PG II to all organic peroxides was left in Sec. 173.129 and may cause confusion for shippers of organic peroxides when reviewing the HMT because the PG designation is no longer shown. Therefore, for consistency and to further clarify that organic peroxides are no longer assigned a packing group, PHMSA is removing and reserving this section.

   Part 180

   Section 180.407

   Paragraph (c) of Sec. 180.407 provides a table of compliance dates for periodic tests and inspection of DOT specification CTMVs. The June 2, 2016, final rule added a provision to allow for a 10-year interval period for the pressure test and internal visual inspection of MC 331 CTMVs under certain conditions (e.g., the cargo tanks must be made of nonquenched and tempered (NQT) SA-612 steel). The provision included a Note 5 that extended the 10-year inspection period to cargo tanks made of NQT SA-202 or NQT SA-455 steel provided the materials have full-size equivalent (FSE) Charpy vee notch (CVN) energy test data that demonstrated 75% shear-area ductility at 32emsp14degF with an average of 3 or more samples >15 ft-lb FSE with no sample 15 ft-lb FSE

   with no sample