[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Proposed Rules]
[Pages 47723-47734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22816]



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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 107, 171, 172, 173 and 178

[Docket No. HM-207C, Notice No. 95-9]
RIN 2137-AC63


Exemption, Approval, Registration and Reporting Procedures; 
Miscellaneous Provisions

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: To expedite processing of applications and to promote clarity 
and program consistency, RSPA is proposing to revise the procedures for 
applying for exemptions and to establish procedures for applying for 
approvals, registering (other than the hazmat registration program), 
and reporting. In addition, the proposed rule would amend in minor ways 
a number of provisions, mostly procedural. The intended effect of this 
NPRM is to provide guidance for persons required to obtain an approval, 
register, or report with RSPA. By clarifying the requirements, RSPA 
would reduce the need to seek additional information necessary to 
complete the processing of applications. The proposed changes also 
would reduce the processing time.

DATES: Comments. Comments must be received by November 28, 1995.

ADDRESSES: Comments. Address comments to Dockets Unit (DHM-30), 
Hazardous Materials Safety, RSPA, U.S. Department of Transportation, 
Washington, DC 20590-0001. Comments should identify the docket and 
notice number and be submitted, when possible, in five copies. Persons 
wishing to receive confirmation of receipt of their comments should 
include a self-addressed, stamped postcard. The Dockets Unit is located 
in Room 8421 of the Nassif Building, 400 Seventh Street SW, Washington 
DC 20590-0001. Office hours are 8:30 am to 5:00 pm Monday through 
Friday, except on public holidays when the office is closed.

FOR FURTHER INFORMATION CONTACT: Jennifer Antonielli, Office of 
Hazardous Materials Standards, (800) 467-4922, or Kathleen Molinar, 
Office of the Chief Counsel, (202) 366-4400, RSPA, Department of 
Transportation, 400 Seventh Street SW, Washington DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal hazardous material transportation law (Federal hazmat 
law), 49 U.S.C. 5101-5127, directs the Secretary of Transportation to 
prescribe regulations for the safe transportation of hazardous material 
in commerce. 49 U.S.C. 5103. The Research and Special Programs 
Administration (RSPA) is the administration within the Department of 
Transportation primarily responsible for implementing the Federal 
hazmat law. 49 CFR 1.53. RSPA does so through the Hazardous Materials 
Regulations (HMR), 49 CFR parts 171-180. Under 49 U.S.C. 5117(a), RSPA 
is authorized to issue an exemption from the Federal hazmat law or the 
HMR if an applicant demonstrates that public safety will not be 
compromised. The procedures governing application for an exemption and 
the manner in which the application is processed are found at 49 CFR 
subpart B of part 107.
    In addition, in numerous instances the HMR require authorization by 
or registration with RSPA before a person may engage in particular 
hazmat transportation-related activities in areas such as manufacturing 
and certifying hazardous material packagings, offering hazardous 
material for transportation, and transporting hazardous material. 
Elsewhere, the HMR impose reporting requirements on those engaging in 
certain hazmat transportation activity. A significant portion of the 
regulated community is subject to one or more of these types of 
requirements. Procedures to be followed in seeking an approval from 
RSPA, registering with RSPA or reporting to RSPA may be found in the 
HMR provision establishing the particular requirement, but in many 
cases these procedures are absent or incomplete. There are no general 
procedural rules in the HMR governing these matters.
    This proposed rule would revise existing exemption procedures at 49 
CFR subpart B of part 107 and create a new subpart H of part 107 to 
establish a similar procedural framework for approvals, registrations 
and reports. 

[[Page 47724]]

    RSPA processes numerous approval, registration and reporting 
matters, and practices have developed over time. Nevertheless, 
establishment of formal procedures through regulation provides 
desirable guidance to all those who now or in the future may be subject 
to HMR approval, registration or reporting requirements, and fosters 
the greatest possible consistency in RSPA's handling of these matters. 
The proposed procedures, in many respects, parallel those for 
exemptions, and this rule would modify them, and largely codify the 
approval, registration and reporting procedures that RSPA currently 
follows. Establishing procedures in 49 CFR part 107 for approvals, 
registration, and reports would minimize the need for RSPA to seek 
information from applicants in order to complete the processing of 
applications.
    The procedures for approvals, registration and reporting are 
limited in their application in two respects. First, under the HMR, 
other Federal agencies, including the United States Coast Guard, the 
Federal Highway Administration, the Nuclear Regulatory Commission, the 
Departments of Defense and Energy, the Bureau of Mines, the Bureau of 
Alcohol, Tobacco and Firearms, and non-Federal entities such as the 
Association of American Railroads, issue approvals or receive 
registrations or reports under the HMR. For example, under 
Sec. 176.415, Coast Guard approval must be obtained before loading or 
unloading certain explosives onto or from vessels. The procedures 
established in this rulemaking would apply only with respect to those 
matters that, under the HMR, are handled by RSPA. Those matters for 
which the HMR assigns responsibility to other entities will continue to 
be handled according to the procedures of those entities.
    Second, this rule does not supersede existing procedures for 
approvals, registration, or reporting, such as the minimum content of 
the application or the RSPA office where it is to be filed. Where 49 
CFR subpart H of part 107 supplements a specific HMR requirement, both 
will apply. In the unlikely event that subpart H conflicts with an 
element of the specific approval, registration, or reporting 
requirement, the specific requirement will govern. Comments are invited 
on any apparent conflicts.
    Proposed amendment of selected provisions in 49 CFR part 107 would 
clarify and, in some cases, slightly modify RSPA procedures with 
respect to rulemaking, preemption determinations and enforcement. 
Certain provisions of 49 CFR part 171 would be amended for clarity. 
Sections 172.302 and 173.22a would be amended to incorporate 
requirements currently in Appendix B to subpart B of part 107. A new 
Sec. 178.3(d) would permit only those persons authorized under an 
exemption or their agents to certify a packaging to the exemption.

II. Regulatory Reinvention Initiative

    In a March 4, 1995 memorandum, the President directed Federal 
agencies to review all agency regulations and eliminate or revise those 
that are outdated or in need of reform. RSPA issued a notice on April 
4, 1995, (Docket HM-222; 60 FR 17049) requesting comments on regulatory 
reform and announced seven public meetings nationwide to identify 
obsolete and burdensome regulations which can be eliminated from the 
HMR and techniques to improve its customer services. Some of the 
commenters responding to the notice under Docket HM-222 identified the 
exemption and approval procedures contained in the HMR as areas in need 
of clarification and reform. Today's notice is consistent with the 
goals of the President to clarify and revise Federal agency regulations 
to relieve unnecessary regulatory burdens.

III. Request for Comments

    Comments are invited with respect to all of the proposed changes. 
In particular, RSPA is interested in whether commenters believe the 
changes would make the process of applying for an exemption or approval 
simpler or more efficient, and whether paperwork burdens would be 
eased; whether the proposed provisions are clear; and how the rule 
would affect small businesses and other entities.
IV. Summary of Proposed Amendments

A. Exemptions

    The exemption procedures at 49 CFR subpart B of part 107 would be 
reorganized to provide a framework that is more logically arranged than 
at present. The proposed rule sets forth application requirements for 
exemptions, exemption modifications, procedures for seeking party 
status to an exemption and renewing an exemption or a grant of party 
status. The proposed rule would establish three processing categories--
routine, priority, and emergency; the standards to qualify for priority 
or emergency processing; and the procedures and review criteria to be 
applied in each category. Next, the notice would set forth the powers 
of the Associate Administrator for Hazardous Materials Safety 
(Associate Administrator) to modify, suspend, or terminate an exemption 
or grant of party status; the standards to do so, and the procedures to 
be followed. Finally, this NPRM proposes procedures for reconsideration 
of an exemption decision by the Associate Administrator and appeal of 
that decision to the RSPA Administrator.
    Substantively, the current regulations would be revised in several 
respects. Summaries of the more significant proposed revisions follow.
    In this notice, timely filing requirements under the subpart would 
be clarified by standardizing the ``filing'' date as the date a 
submission is received at the specified RSPA office. Also, the required 
contents of an application would be expanded in several respects. The 
applicant would need to list HMR exemptions, approvals, and other 
authorizations previously or currently held that are related to the 
subject of the application and known to the applicant; this information 
would facilitate prompt processing of the application by expediting 
review of other relevant information. In addition, the applicant would 
be required to identify each manufacturing facility that would be 
operating under the requested exemption; this information would 
facilitate later RSPA inspections. A foreign applicant, after 
designating a domestic agent for service, would be required to consent 
in writing to personal jurisdiction with respect to all matters under 
the Federal hazmat law related to the exemption. The proposed rule also 
provides that an applicant's failure to respond to a request by RSPA 
for additional information within 30 days would result automatically in 
application denial. Paperwork burdens would be reduced by requiring 
only duplicate, rather than triplicate, application submissions.
    In the proposal, the Associate Administrator explicitly would be 
authorized to consider evidence of an applicant's capability and 
integrity in deciding on an application. A pending or completed 
enforcement action for HMR violations could be considered, to the 
extent the Associate Administrator found it to be relevant. If an 
enforcement action were only pending, and a final finding of violation 
had not been made, that would be considered in assessing the weight the 
enforcement action should be given in deciding on an application.
    The standards for routine and emergency application processing 
would be clarified, and a third category, that of priority processing, 
would be created. The rule would formalize, but not modify, the way in 
which exemption applications now are 

[[Page 47725]]
routinely processed. When an application is determined to be complete, 
it is published in the Federal Register and public comment is 
solicited. The application then is considered under prescribed 
standards, including demonstration of an equivalent level of safety and 
whether the applicant has the capability and integrity necessary to 
operate under the exemption.
    Similarly, the proposed rule would not change how an emergency 
exemption application is processed, but would clarify and slightly 
modify the standards for qualifying for emergency processing. The 
standard would be expanded to include likelihood of significant injury 
to persons, rather than only loss of life. Also, the proposed rule 
would clarify that a likelihood of significant economic harm, standing 
alone, does not entitle an applicant to emergency processing; whether 
the prospect of significant economic loss constitutes an emergency 
would be a matter for the Associate Administrator's judgment. For 
example, the Associate Administrator may find that a carrier's loss of 
transportation revenue or failure to gain new revenue, or a shipper's 
failure immediately to gain a new market, would not justify emergency 
processing.
    Specifically, the rule would add a provision that the Associate 
Administrator may determine a risk of economic loss to the applicant, 
or to another person engaged in the hazmat activity in cooperation with 
the applicant, not to be the basis for a finding of emergency if the 
applicant or another person could have filed for routine application 
processing in a timely manner. If an application qualifies for 
emergency processing, it is not published in the Federal Register, 
subject to public comment, or held strictly to the submission 
requirements for routine processing. Further, recognizing that urgency 
may not permit the fullest deliberation, the standard for granting the 
exemption is simply whether doing so is in the public interest, in 
light of the standards that apply to an application processed 
routinely. Through the proposed provision, RSPA seeks to ensure that 
emergency processing, which affords less public review and a risk of 
reduced agency deliberation, is used only in the case of a risk of 
significant economic loss where urgency is required to avert the loss 
and the need for urgency could not have been avoided.
    The NPRM would create a third processing category, priority 
processing, for applications that do not qualify for emergency 
processing, but merit more expeditious consideration than that 
routinely accorded. An application that qualifies for priority 
processing, unlike one processed on an emergency basis, would be 
subject to public comment and the full degree of deliberation given to 
applications processed routinely. The priority designation merely would 
authorize RSPA to deviate from its ``first in, first out'' policy and 
consider the application ahead of those received earlier. Applications 
qualifying for priority processing would be those of governmental 
bodies when deemed by the Associate Administrator to be in the public 
interest, and those in which expeditious processing would be necessary 
to avoid significant economic loss. As in the case of emergency 
processing, if the significant economic loss were that of the applicant 
or another person engaged with the applicant in the hazmat activity, 
the need for the exemption may not have been foreseeable at a time when 
an application could have been processed routinely. Otherwise, the 
Associate Administrator would have the discretion to find that the 
application does not qualify for priority processing.
    The proposed rule would clarify the standards for exemption 
modification, suspension, and termination and give the Associate 
Administrator more flexibility as to which of the three remedies is 
appropriate in a given situation. Presently, the Associate 
Administrator may modify or suspend an exemption if its provisions are 
violated, or if new information suggests that the activity under the 
exemption creates a risk to life or property. The Associate 
Administrator may terminate an exemption if it is no longer consistent 
with the public interest, is no longer necessary due to a change in the 
regulations, or was granted on the basis of false or misleading 
information. The ``public interest'' criterion encompasses all grounds 
on which the Associate Administrator may find it justified to terminate 
an exemption, but is vague. Further, the sharp distinction the existing 
regulation draws between those conditions that justify modifying or 
suspending an exemption, and those that justify terminating it, 
handicap the Associate Administrator in taking the action that a 
particular circumstance recommends--for example, requiring the 
termination of an exemption when modification might suffice.
    The proposed rule would authorize modification whenever necessary 
to conform an exemption to changed statute or regulation, or other 
circumstances. It would authorize modification, suspension, or 
termination: (1) Whenever, because of a change in circumstances, the 
exemption no longer would be granted if applied for; (2) if it was 
granted on the basis of inaccurate or incomplete information; or (3) if 
the holder violates the exemption in a way that demonstrates 
insufficient competence or integrity to act under the exemption. In 
addition, any exemption granted on the basis of an application that the 
Associate Administrator finds was deliberately inaccurate or incomplete 
would be subject to modification, suspension, or termination, even 
where the exemption would have been granted absent the inaccuracy or 
incompleteness.
    Finally, the proposed rule would formalize procedures for 
requesting reconsideration of an exemption decision by the Associate 
Administrator and appealing the Associate Administrator's decision to 
the RSPA Administrator. During the pendency of a request for 
reconsideration or an appeal, the Associate Administrator or the 
Administrator, respectively, on a finding of risk to persons or 
property, could deem the modification, suspension, or termination 
effective for a period of up to 90 days. Otherwise the exemption, if 
current, would remain in effect until the decision.

B. Approvals, Registrations, Reports

    The proposed rule establishes a framework for processing approval 
requests similar to that for exemption applications. It also describes 
procedures for filing registrations and reports with RSPA.
    The proposed rule specifies minimum contents of an application for 
approval to be filed with RSPA, identifies the RSPA office to which the 
filing would be directed, and sets forth procedures by which an 
application for approval would be processed.
    Next, the proposed rule sets forth standards and procedures for 
modifying, suspending and terminating approvals. The proposed standards 
are similar to the procedures for modifying, suspending and terminating 
exemptions. Modification would be authorized broadly to conform an 
approval to changed law or circumstances. Modification, suspension and 
termination all would be available if new information indicates that 
the approval would not be granted if now applied for; if the holder has 
demonstrated insufficient capability or integrity to perform the 
authorized activity; or if the application contained deliberately 
inaccurate or incomplete information. The holder would be allowed an 
opportunity to respond to the proposed action before it becomes final; 
however, where necessary to avert 

[[Page 47726]]
a risk of harm to persons or property, the Associate Administrator 
could declare the modification, suspension or termination effective 
pending the holder's response and any subsequent reconsideration, for 
up to 90 days.
    Finally, the proposed rule would provide for reconsideration of the 
Associate Administrator's decision on granting, modifying, suspending 
or terminating an approval, and for appeal of that decision to the 
Administrator.

C. Miscellaneous Amendments

    The proposed rule would amend a number of procedural provisions of 
49 CFR parts 107, 171, 172, 173, and 178. Amendments would be made for 
clarity in Secs. 107.202, 107.203, 107.205, 107.211, 107.213 (new 
section), 107.217, 107.223, 107.227, 107.331, 171.1, 171.2, 171.8, 
172.302, 173.22a, and 178.3. Requirements for exemption holders now 
found at Appendix B to subpart B of part 107, would be moved to 
Secs. 172.302(c) and 173.22a(c).
    Several provisions governing preemption determinations would be 
revised. The NPRM would modify Sec. 107.205(a) to delete the 
requirement that the applicant notify the affected State, local, or 
tribal government that it has 45 days in which to comment on the 
application for preemption. Because the date on which the government 
body receives the applicant's notice is not fixed to the date on which 
the application is published in the Federal Register, this 
specification is somewhat arbitrary. The State, local, or tribal 
government would continue to have, ordinarily, 45 days in which to 
comment, but this time frame would simply be specified in the Federal 
Register notice setting forth the application.
    Section 107.209(b) would be deleted. The Associate Administrator's 
authority to issue a preemption determination on his or her own 
initiative was eliminated by the Hazardous Materials Transportation 
Uniform Safety Act, Public Law 101-615, Sec. 13 (Nov. 16, 1990).
    Sections 107.209(d) and 107.221(d) would be amended to specify more 
concretely who would be given personal notice of a preemption or waiver 
of preemption determination. Presently, the Associate Administrator 
notifies each person ``readily identifiable * * * as one who is 
affected by the determination.'' Appeal rights of parties depend on 
timely receipt of the Associate Administrator's preemption decision. 
The present standard is vague and could prompt a challenge by a person 
who did not receive notice of a decision. The proposed rule limits 
personal notice of the decision to a specified group of persons: those 
who commented substantially on the matter (this would exclude, for 
instance, those who merely submitted form letters favoring or opposing 
preemption) and those who requested notice.
    Section 107.305(b) would be clarified in two regards. Additional 
language would clarify the right of a regulated party to examine an 
inspector's credentials, but prohibit that party from reproducing them. 
In addition, it would make explicit the inspector's authority to employ 
reasonable means of information gathering and documentation in 
performing an inspection. These means include, but are not limited to, 
interviewing and taking statements from representatives of the 
inspected person, photocopying, photographing, and taking audio and 
video recordings.
    An added provision of Sec. 107.305(b) would authorize the Director, 
Office of Hazardous Materials Enforcement (OHME), or his delegated 
representative, to issue a subpoena for the production of documentary 
or other tangible evidence. This authority is vested in the 
Administrator by Sec. 107.13(a) and would be delegated by the proposed 
rule from the Administrator to the OHME Director. A person on whom a 
subpoena is served would have the opportunity to apply to the RSPA 
Chief Counsel within 10 days of service to modify or quash the 
subpoena.
    A new Sec. 171.2(h) explicitly would prohibit creating or altering 
an exemption, approval, registration, or other official document to 
fraudulently indicate authority to offer or transport hazardous 
materials or manufacture packagings for hazardous materials. Similarly, 
offering a hazardous material for transportation or transporting a 
hazardous material in commerce, or representing, marking, certifying, 
or selling a packaging, under a false or altered exemption, approval, 
registration, or similar document would be prohibited. Currently, 18 
U.S.C. 1001 prescribes a criminal sanction for knowingly or willfully 
making or using a false document in a matter within the jurisdiction of 
a Federal agency. The proposed rule would create a separate civil 
sanction. Liability for a civil penalty would arise only when a 
violation is committed knowingly within the meaning of 49 U.S.C. 
5123(a)(1); that is, when the person either knew or, in the exercise of 
reasonable care, should have known that the document was false or 
altered. Accordingly, for example, a carrier would not be subject to a 
civil penalty for transporting a hazardous material under authority of 
an exemption altered by a shipper, absent facts establishing the 
carrier's knowledge that the exemption was altered.
    In addition, the proposed rule would amend Sec. 178.3 by adding a 
new paragraph (d) to specifically prohibit anyone, other than the 
exemption holder, a person with party status to an exemption, or a 
third party tester, from certifying that a packaging meets the terms of 
an exemption. This provision is necessary to assure that packagings 
manufactured under the terms of an exemption are marked and certified 
only by those persons authorized to do so.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This notice of proposed rulemaking is not considered a significant 
regulatory action under section 3(f) of Executive Order 12866 and, 
therefore, was not subject to review by the Office of Management and 
Budget. The notice is not significant according to the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034).
    The proposed rule would not result in any additional costs to 
persons subject to the HMR, but would result in modest cost savings to 
a small number of them and to the agency. Because of the minimal 
economic impact of this rule, preparation of a regulatory impact 
analysis or regulatory evaluation is not warranted. This certification 
may be revised as a result of public comment.
B. Executive Order 12612

    This action has been analyzed in accordance with the principles and 
criteria in Executive Order 12612 (``Federalism''). This proposed 
rulemaking has no substantial effects on States, local governments, or 
Indian tribes and does not impair their ability to impose their own 
procedures for obtaining an exemption or approval, or for registering 
and reporting. Therefore, preparation of a federalism assessment is not 
warranted.

C. Regulatory Flexibility Act

    I certify that this notice of proposed rulemaking will not have a 
significant economic impact on a substantial number of small entities. 
This notice proposes to amend existing and add new procedural 
provisions to clarify existing practice. The amendments contained in 
this notice do not impose any new requirements on persons subject to 
the HMR; thus, there are no direct or indirect adverse economic 

[[Page 47727]]
impacts for small units of government, businesses, or other 
organizations.

D. Paperwork Reduction Act

    Under 49 U.S.C. 5108, the information management requirements of 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to 
this proposed rule.

VI. List of Subjects

49 CFR Part 107

    Administrative practice and procedure, Hazardous material 
transportation, Packaging and containers, Penalties, Reporting and 
recordkeeping requirements.

49 CFR Part 171

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

49 CFR Part 172

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

49 CFR Part 173

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

49 CFR Part 178

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

    In consideration of the foregoing, 49 CFR Chapter I would be 
amended as follows:

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

    1. The authority citation for Part 107 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    2. In Sec. 107.3, definitions would be added in alphabetical order 
to read as follows:


Sec. 107.3  Definitions.

    Accident means an event resulting in the unintended and 
unanticipated release of hazardous material.
    Acting knowingly means acting or failing to act while:
    (1) Having actual knowledge of the facts giving rise to the 
violation, or
    (2) Having the knowledge that a reasonable person acting in the 
same circumstances and exercising due care would have had.
    Administrator means the Administrator, Research and Special 
Programs Administration.
    Applicant means the person in whose name an exemption, renewed or 
modified exemption, grant of party status to an exemption, approval, or 
registration is requested to be issued.
    Application means a request under this subpart for an exemption, a 
renewal or modification of an exemption, a grant of party status to an 
exemption, an approval, or a registration.
* * * * *
    Associate Administrator means the Associate Administrator for 
Hazardous Materials Safety.
* * * * *
    Filed means received at the Research and Special Programs 
Administration office designated in the applicable provision or, if no 
office is specified, at the Office of Hazardous Materials Exemptions 
and Approvals (DHM-30), U.S. Department of Transportation, Research and 
Special Programs Administration, 400 Seventh Street SW, Washington DC, 
20590-0001.
    Holder means the person in whose name an exemption or approval has 
been issued.
* * * * *
    Investigation includes investigations authorized under 49 U.S.C. 
5121 and inspections authorized under 49 U.S.C. 5118 and 5121.
    Manufacturing exemption means an exemption from compliance with 
requirements that otherwise must be met before representing, marking, 
certifying, selling or offering a packaging or container as meeting the 
requirements of this subchapter or subchapter B governing its use in 
the transportation in commerce of a hazardous material.
    Party means a person, other than a holder, authorized to act under 
the terms of an exemption.
* * * * *
    Registration means a written acknowledgement from the Associate 
Administrator that the registrant is performing a function for which 
registration is required under subchapter C. For purposes of this 
subpart, ``registration'' does not include registration under subpart F 
or G of this part.
    Report means information, other than an application, registration 
or part thereof, required to be submitted to the Associate 
Administrator pursuant to subchapter C.
* * * * *
    Shipper exemption means an exemption from compliance with 
requirements of this subchapter or subchapter C that otherwise must be 
met before offering a hazardous material for transportation or 
transporting a hazardous material in commerce.
* * * * *
    3. In Sec. 107.5, paragraph (a) would be revised to read as 
follows:


Sec. 107.5  Request for confidential treatment.

    (a) If any person filing a document with the Associate 
Administrator claims that some or all the information contained in the 
document is exempt from the mandatory public disclosure requirements of 
the Freedom of Information Act (5 U.S.C. 552), is information referred 
to in 18 U.S.C. 1905, or is otherwise exempt by law from public 
disclosure, and if that person requests the Associate Administrator not 
to disclose the information, that person shall file, together with the 
document, a second copy of the document with the confidential 
information deleted. The person shall indicate each page of the 
original document that is confidential or contains confidential 
information by marking or stamping ``confidential'' on each page for 
which a claim of confidentiality is made, and may file a statement 
specifying the justification for the claim of confidentiality. If the 
person states that the information comes within the exception in 5 
U.S.C. 552(b)(4) for trade secrets and commercial or financial 
information, that person must include a statement as to why the 
information is privileged or confidential. If the person filing a 
document does not mark or stamp a document as confidential or submit a 
second copy of the document with the confidential information deleted, 
the Associate Administrator may assume that there is no objection to 
public disclosure of the document in its entirety.
* * * * *
    4. Subpart B of part 107 would be revised to read as follows:
Subpart B--Exemptions


Sec. 107.101  Purpose and scope.

    This subpart prescribes procedures for the issuance, modification 
and termination of exemptions from requirements of this subchapter, or 
subchapter C of this chapter.


Sec. 107.105  Application for exemption.

    (a) Each application for an exemption or modification of an 
exemption must--
    (1) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety, U.S. Department of Transportation, 
Washington, DC 20590-0001. Attention: Exemptions, DHM-31; 

[[Page 47728]]

    (2) State the name, street and mailing addresses, and telephone 
number of the applicant; if the applicant is not an individual, state 
the name of an individual designated as an agent of the applicant for 
all purposes related to the application;
    (3) For a manufacturing exemption, state the name and street 
address of each of the applicant's or contractor's facilities where 
manufacturing under the exemption will occur;
    (4) If the applicant is not a resident of the United States, 
contain a designation of agent for service in accordance with 
Sec. 107.7, and a statement that the applicant consents to personal 
jurisdiction in the United States for purposes of the Federal hazardous 
material transportation law related to the exemption;
    (5) Cite the regulation from which the applicant seeks relief, 
including the publication year of the Code of Federal Regulations 
volume from which the citation is taken;
    (6) If known by the applicant, list identifying numbers of all 
exemptions, approvals and registrations previously or currently held by 
the applicant under this chapter that are related to the subject matter 
of the application;
    (7) Specify the proposed mode(s) of transportation;
    (8) Describe in detail the proposed exemption (e.g., alternative 
packaging, test, procedure or activity). Including, as appropriate, 
written descriptions, drawings, flow charts, plans and other supporting 
documents;
    (9) Specify the proposed duration or schedule of events for which 
the exemption is sought;
    (10) State why the applicant wishes to be relieved from compliance 
with the specified regulations and, if the exemption is requested for a 
fixed period, how compliance will be achieved at the end of that 
period;
    (11) If the applicant seeks expedited processing under Sec. 107.115 
or Sec. 107.117, set forth the supporting facts and grounds;
    (12) Identify and describe the hazardous materials planned for 
transportation under the exemption. Provide the chemical name, common 
name, hazard class, identification number, packing group, form, 
quantity, properties, and characteristics of hazardous material to be 
offered or transported in conjunction with the exemption, including 
composition and percentage (specified by volume or weight) of each 
chemical, if a solution or mixture;
    (13) List each packaging, including specification or exemption 
number, as applicable, to be used in conjunction with the requested 
exemption;
    (14) For alternative packagings, document quality assurance 
controls necessary to provide safe performance, including package 
design, manufacture, performance test criteria, in-service performance 
and service life limitations;
    (15) Include information describing all relevant shipping and 
accident experience of which the applicant is aware that relates to the 
application;
    (16) Identify any increased risk to safety or property that may 
result if the exemption is granted, and specify the measures that the 
applicant considers necessary or appropriate to address that risk;
    (17) Substantiate, with applicable analyses, data or test results, 
that the proposed alternative will achieve a level of safety that:
    (i) Is at least equal to that required by the regulation from which 
the exemption is sought, or
    (ii) If the regulations do not establish a level of safety, is 
consistent with the public interest and adequately will protect against 
the risks to life and property inherent in the transportation of 
hazardous material in commerce; and
    (18) For an exemption involving a hazardous material, packaging 
material, packaging design or technology where direct comparison cannot 
be made to an existing standard in subchapter C, provide an analysis 
that:
    (i) identifies each hazard associated with the proposed activity,
    (ii) identifies each potential failure mode and the probability of 
its occurrence, and
    (iii) describe how the risk associated with each hazard and failure 
mode is controlled for life of a packaging or duration of an activity 
to a level comparable to that provided by the regulation and is 
consistent with the public interest.
    (b) Unless expedited processing under Sec. 107.115 or Sec. 107.117 
is requested and granted, applications are processed in the order in 
which they are filed. For timely consideration, an application should 
be submitted at least 180 days before the requested effective date.
    (c) To request confidential treatment for information contained in 
the application, the applicant must comply with Sec. 107.5(a).


Sec. 107.107  Application for party status.

    (a) Any person eligible to apply for an exemption may apply to be 
made party to an application or an existing exemption, other than a 
manufacture, mark, and sell exemption.
    (b) Each application filed under this section must--
    (1) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety, U.S. Department of Transportation, 
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
    (2) Identify by number the exemption application or exemption to 
which the applicant seeks to become a party;
    (3) State the name, address and telephone number of the applicant; 
if the applicant is not an individual, state the name of an individual 
designated as the applicant's agent for all purposes related to the 
application; and
    (4) If the applicant is not a resident of the United States, 
provide a designation of agent for service in accordance with 
Sec. 107.7, and a statement that the applicant consents to personal 
jurisdiction in the United States for purposes of the Federal hazardous 
material transportation law related to the exemption.
    (c) The Associate Administrator grants party status to an applicant 
on finding that--
    (1) The applicant is eligible to apply for the exemption;
    (2) The application or exemption to which the applicant seeks to 
become a party concerns a continuing matter; and
    (3) Granting party status does not compromise information qualified 
for confidential treatment under Sec. 107.5.
    (d) A party to an exemption is subject to all terms of that 
exemption, including the expiration date. If a party to an exemption 
wishes to renew party status, the exemption renewal procedures set 
forth in Sec. 107.109 apply.


Sec. 107.109  Application for renewal.

    (a) Each application for renewal of an exemption must--
    (1) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety, U.S. Department of Transportation, 
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
    (2) Identify by number the exemption for which renewal is 
requested;
    (3) State the name, address, and telephone number of the applicant; 
if the applicant is not an individual, state the name of an individual 
designated as an agent of the applicant for all purposes related to the 
application;
    (4) Include either a certification by the applicant that the 
original application, as it may have been updated by any application 
for renewal, remains accurate and complete; or an amendment to the 
previously submitted application as is necessary to update and assure 
the accuracy and completeness of the application, with certification by 
the applicant that the application as amended is accurate and complete; 
and 

[[Page 47729]]

    (5) Include a statement describing all relevant shipping and 
accident experience of which the applicant is aware in connection with 
the exemption since its issuance or most recent renewal. If aware of no 
accidents, the applicant shall so certify. The statement must indicate 
the approximate number of shipments made or packages shipped, as the 
case may be, and the number of shipments or packages involved in any 
loss of contents, including loss by venting other than as authorized in 
subchapter C.
    (b) If at least 60 days before an existing exemption expires the 
holder files an application for renewal that is complete and conforms 
to the requirements of this section, the exemption will not expire 
until final administrative action on the application for renewal has 
been taken.


Sec. 107.111  Withdrawal.

    An application may be withdrawn at any time before a decision to 
grant or deny it is made. Withdrawal of an application does not 
authorize the removal of any related records from the RSPA dockets or 
files.


Sec. 107.113  Application processing.

    (a) The Associate Administrator reviews an application to determine 
if it is complete and conforms with the requirements of this subpart. 
This determination usually is made within 30 days of receipt of an 
application for exemption or modification of exemption and within 15 
days of receipt of an application for renewal of an exemption. If an 
application is determined to be incomplete, the applicant is informed 
of the reasons.
    (b) An application, other than a renewal or emergency exemption 
application, that is determined to be complete is docketed. Notice of 
the application is published in the Federal Register and an opportunity 
for public comment is provided. All comments received during the 
comment period are considered before final action is taken on the 
application.
    (c) No public hearing or other formal proceeding is required under 
this subpart before the disposition of an application. Unless expedited 
processing under Sec. 107.115 or Sec. 107.117 is requested and granted, 
applications are processed in the order in which they are filed.
    (d) At any time during the processing of an application, the 
Associate Administrator may request additional information from the 
applicant. If the applicant does not respond to a written request for 
additional information within 30 days of the date the request was 
received, the application is deemed incomplete and is denied.
    (e) The Associate Administrator may grant or deny an application, 
in whole or in part. In the Associate Administrator's discretion, an 
application may be granted subject to conditions that are appropriate 
to protect health, safety or property.
    (f) The Associate Administrator may grant the application on 
finding that--
    (1) The application complies with this subpart;
    (2) The application demonstrates that the proposed alternative will 
achieve a level of safety that:
    (i) Is at least equal to that required by the regulation(s) from 
which the exemption is sought, or
    (ii) If the regulations do not establish a level of safety, is 
consistent with the public interest and adequately will protect against 
the risks to life and property inherent in the transportation of 
hazardous materials in commerce;
    (3) The application states all material facts, and contains no 
materially false or materially misleading statement;
    (4) The applicant meets the qualifications required by applicable 
regulations; and
    (5) The applicant demonstrates the level of capability and 
integrity required to conduct the activity authorized by the exemption. 
A pending or completed enforcement action may be considered evidence of 
insufficient competence or integrity.
    (g) The applicant is notified in writing whether the application is 
granted or denied. A denial contains a brief statement of reasons.
    (h) An exemption and any renewal thereof terminates according to 
its terms or, if not otherwise specified, two years after the date of 
issuance. A grant of party status to an exemption, unless otherwise 
stated, terminates on the date that the exemption terminates.
    (i) The Associate Administrator, on determining that an application 
concerns a matter of general applicability and future effect and should 
be the subject of rulemaking, may initiate rulemaking under part 106 of 
this chapter in addition to or instead of acting on the application.
    (j) The Associate Administrator publishes in the Federal Register a 
list of all exemption and party status grants, denials and 
modifications and all applications withdrawn under this section.


Sec. 107.115  Priority processing.

    (a) An application is granted priority processing if the Associate 
Administrator, on the basis of the application and any inquiry 
undertaken, finds that--
    (1) If the applicant is a governmental body, priority processing is 
in the public interest;
    (2) If the applicant is not a governmental body:
    (i) Priority processing is necessary to prevent significant 
economic loss; and
    (ii) The significant economic loss could not be prevented were the 
application processed routinely.
    (b) Where the risk of significant economic loss is to the 
applicant, or to a party in a contractual relationship to the applicant 
with respect to the activity to be undertaken, the Associate 
Administrator may deny priority processing if timely application could 
have been made.
    (c) A request for priority processing on the basis of potential 
economic loss must reasonably describe and estimate the potential loss.
    (d) An application given priority processing receives the same 
level of substantive review as one processed routinely.
    (e) A decision to deny priority processing may not be the subject 
of a request for reconsideration under Sec. 107.123.


Sec. 107.117  Emergency processing.

    (a) An application is granted emergency processing if the Associate 
Administrator, on the basis of the application and any inquiry 
undertaken, finds that--
    (1) Emergency processing is necessary to prevent significant injury 
to persons or property (other than the hazardous material to be 
transported) that could not be prevented if the application were 
processed on a routine or priority basis; or
    (2) Emergency processing is necessary to prevent significant 
economic loss that could not be prevented if the application were 
processed on a routine or priority basis.
    (b) Where the significant economic loss is to the applicant, or to 
a party in a contractual relationship to the applicant with respect to 
the activity to be undertaken, the Associate Administrator may deny 
emergency processing if timely application could have been made.
    (c) A request for emergency processing on the basis of potential 
economic loss must reasonably describe and estimate the potential loss.
    (d) An application submitted under this section must comply with 
Sec. 107.105(a)(17) and include such supporting information specified 
in Sec. 107.105(a)(2) through (a)(16) as the receiving Department of 
Transportation official deems necessary to process the application. An 
application on an 

[[Page 47730]]
emergency basis must be submitted through the appropriate Department of 
Transportation official, as follows:
    (1) Certificate Holding Aircraft Operators: The Federal Aviation 
Administration Civil Aviation Security Office that serves the place 
where the flight(s) will originate or that is responsible for the 
operators' overall aviation security program.
    (2) Noncertificate Holding Aircraft Operators (Operators Operating 
Under 14 CFR Part 91): The Federal Aviation Administration Civil 
Aviation Security Office that serves the place where the flight(s) will 
originate. The nearest Civil Aviation Security Office may be located by 
calling the FAA Duty Officer, 202-863-5100 (any hour).
    (3) Motor Carriers: Chief, Hazardous Materials Division, Office of 
Motor Carrier Field Operations, Federal Highway Administration, 
Department of Transportation, Washington, DC 20590-0001, 202-366-4415 
(day); 202-267-2100 (night).
    (4) Rail Carriers: Associate Administrator for Safety, Federal 
Railroad Administration, Department of Transportation, Washington, DC 
20590-0001, 202-366-9178 or 366-0488 (day); 202-267-2100 (night).
    (5) Water Carriers: Chief, Hazardous Materials Standards Branch, 
Operating and Environmental Standards Division, United States Coast 
Guard, Washington, DC 20593-0001, 202-267-1577 (day); 202-267-2100 
(night).
    (e) On receipt of all information necessary to process the 
application, the receiving Department of Transportation official 
transmits to the Associate Administrator, by the most rapid available 
means of communication, an evaluation as to whether an emergency exists 
under Sec. 107.117(a) and, if appropriate, recommendations as to the 
conditions to be included in the exemption. If the Associate 
Administrator determines that an emergency exists under Sec. 107.117(a) 
and that, with reference to the criteria of Sec. 107.113(f), granting 
of the application is in the public interest, the Associate 
Administrator grants the application subject to such terms as necessary 
and immediately notifies the applicant. If the Associate Administrator 
determines that an emergency does not exist or that granting of the 
application is not in the public interest, the applicant immediately is 
so notified.
    (f) An emergency exemption is to be limited in scope and duration 
to that which is necessary to address the circumstances which 
constitute the emergency.
    (g) A determination that an emergency does not exist may not be the 
subject of a request for reconsideration under Sec. 107.123.
    (h) Within 90 days following issuance of an emergency exemption, a 
notice of issuance, with a statement of the basis for the finding of 
emergency and the scope and duration of the exemption, is published in 
the Federal Register.


Sec. 107.121  Modification, suspension or termination of exemption or 
grant of party status.

    (a) The Associate Administrator may modify an exemption or grant of 
party status on finding that--
    (1) Modification is necessary so that an exemption reflects current 
statutes and regulations; or
    (2) Modification is required by changed circumstances to meet the 
standards of Sec. 107.113(f).
    (b) The Associate Administrator may modify, suspend or terminate an 
exemption or grant of party status, as appropriate, on finding that-
    (1) Because of changed circumstances, the exemption or party status 
would not be granted if application were made now;
    (2) The application contained inaccurate or incomplete information, 
and the exemption or party status would not have been granted had the 
application been accurate and complete;
    (3) The application contained deliberately inaccurate or incomplete 
information; or
    (4) The holder or party knowingly has violated the terms of the 
exemption or an applicable requirement of this chapter, in a manner 
demonstrating insufficient capability or integrity to conduct the 
activity authorized by the exemption.
    (c) Before an exemption or grant of party status is modified, 
suspended or terminated, the Associate Administrator notifies the 
holder or party in writing of the proposed action and the reasons 
therefor, and provides an opportunity to show cause why the proposed 
action should not be taken.
    (1) The holder or party may file a written response with the 
Associate Administrator within 30 days of receipt of notice of the 
proposed action.
    (2) After considering the holder's or party's written response to 
the notice, or after 30 days have passed without response since receipt 
of the notice, the Associate Administrator notifies the holder in 
writing of the final decision. Modification, suspension or termination 
shall be accompanied by a brief statement of grounds.


Sec. 107.123  Reconsideration.

    (a) An applicant, a holder or a party may request that the 
Associate Administrator reconsider a decision under Sec. 107.113(g), 
Sec. 107.117(e) or Sec. 107.121(c). The request must--
    (1) Be in writing and filed within 20 days of receipt of the 
decision;
    (2) State in detail all alleged errors of fact and law;
    (3) Enclose all documentation in support of the request to 
reconsider, with a justification for failure to provide the 
documentation previously; and
    (4) State in detail the modification of the final decision sought.
    (b) The Associate Administrator, if necessary to avoid a risk of 
significant harm to persons or property, may in the notification 
declare the proposed action immediately effective, for a maximum of 90 
days from the date of the holder's or party's receipt of the notice.
    (c) The Associate Administrator considers newly submitted 
information on a showing that the information could not reasonably have 
been submitted during application processing.
    (d) The Associate Administrator grants or denies, in whole or in 
part, the relief requested and informs the requesting person in writing 
of the decision.


Sec. 107.125  Appeal.

    (a) A person who requested reconsideration under Sec. 107.123 may 
appeal to the Administrator the Associate Administrator's decision on 
the request. The appeal must-
    (1) Be in writing and filed within 30 days of receipt of the 
Associate Administrator's decision on reconsideration;
    (2) State in detail all alleged errors of fact and law;
    (3) Enclose all documentation in support of the appeal, with a 
justification for failure to provide the documentation previously; and
    (4) State in detail the modification of the final decision sought.
    (b) The Administrator, if necessary to avoid a risk of significant 
harm to persons or property, may declare the Associate Administrator's 
action immediately effective pending a decision on appeal, for a 
maximum of 90 days from the date of the holder's or party's receipt of 
the decision.
    (c) The Administrator considers newly submitted information on a 
showing that the information could not reasonably have been submitted 
during application processing or reconsideration.
    (d) The Administrator grants or denies, in whole or in part, the 
relief requested and informs the appellant in writing of the decision. 
The Administrator's decision is the final administrative action. 

[[Page 47731]]



Sec. 107.127  Availability of documents for public inspection.

    (a) Documents related to an application under this subpart, 
including the application itself, are available for public inspection, 
except as specified in paragraph (b) of this section, at the Office of 
the Associate Administrator for Hazardous Materials Safety, Dockets 
Unit (DHM-30), U.S. Department of Transportation, 400 Seventh Street 
SW., Washington, DC 20590 0001. Copies of available documents may be 
obtained as provided in part 7 of this title.
    (b) Documents available for inspection do not include materials 
determined to be withheld from public disclosure under Sec. 107.5 and 
in accordance with the applicable provisions of section 552(b) of title 
5, United States Code, and part 7 of this title.
    5. In Sec. 107.202, paragraph (a), introductory text, would be 
revised to read as follows:


Sec. 107.202  Standards for determining preemption.

    (a) Except as provided in Sec. 107.221 and unless otherwise 
authorized by Federal law, any requirement of a State or political 
subdivision thereof or an Indian tribe, that concerns one of the 
following subjects and that is not substantively the same as any 
provision of the Federal hazardous material transportation law, this 
subchapter or subchapter C that concerns that subject, is preempted:
* * * * *


Sec. 107.202  [Amended]

    6. In Sec. 107.202(b)(3), the wording ``49 U.S.C. 5125(b) or(c)'' 
would be revised to read ``49 U.S.C. 5125(c).''


Sec. 107.205  [Amended]

    7. In Sec. 107.205, in paragraph (a), at the end of the first 
sentence, the wording ``within 45 days'' would be removed.
    8. In addition, in Sec. 107.205, paragraph (b) would be revised to 
read as follows:


Sec. 107.205  Notice.

* * * * *
    (b) The Associate Administrator may publish notice of an 
application in the Federal Register and may notify in writing any 
person readily identifiable as affected by the ruling.
* * * * *
    9. In Sec. 107.209, paragraph (b) would be removed, paragraphs (c), 
(d) and (e) would be redesignated as paragraphs (b), (c) and (d), 
respectively, and newly designated paragraph (c) would be revised to 
read as follows:


Sec. 107.209  Determination.

* * * * *
    (c) The Associate Administrator provides a copy of the 
determination to the applicant and to any other person who 
substantially participated in the proceeding or requested in comments 
to the docket to be notified of the determination. A copy of each 
determination is placed on file in the public docket. The Associate 
Administrator may publish the determination or notice of the 
determination in the Federal Register.
* * * * *
    10. In Sec. 107.211, in paragraph (a), the second sentence would be 
revised to read as follows:


Sec. 107.211  Petition for reconsideration.

    (a) * * * The petition must be filed within 20 days of publication 
of the determination in the Federal Register.
* * * * *
    11. A new Sec. 107.213 would be added to read as follows:


Sec. 107.213  Judicial review.

    A party to a proceeding under Sec. 107.203(a) may seek review by 
the appropriate district court of the United States of a decision of 
the Administrator by filing a petition with the court within 60 days 
after the Administrator's decision becomes final.
    12. In Sec. 107.217, paragraph (d) would be revised to read as 
follows:


Sec. 107.217  Notice.

* * * * *
    (d) The Associate Administrator may notify any other persons who 
may be affected by the ruling.
* * * * *
    13. In Section 107.221, paragraph (a), (b), introductory text, (c) 
through (e) would be revised to read as follows:


Sec. 107.221  Determination.

    (a) After considering the application and other relevant 
information received or obtained during the proceeding, the Associate 
Administrator issues a determination.
    (b) The Associate Administrator may issue a waiver of preemption 
only on finding that the State or political subdivision or Indian tribe 
requirement affords the public a level of safety at least equal to that 
afforded by the requirements of the Federal hazardous material 
transportation law or the regulations issued thereunder and does not 
unreasonably burden commerce. In determining if the State or political 
subdivision or Indian tribe requirement unreasonably burdens commerce, 
the Associate Administrator considers:
* * * * *
    (c) The determination includes a written statement setting forth 
relevant facts and legal bases and providing that any person aggrieved 
by the determination may file a petition for reconsideration with the 
Associate Administrator.
    (d) The Associate Administrator provides a copy of the 
determination to the applicant and to any other person who 
substantially participated in the proceeding or requested in comments 
to the docket to be notified of the determination. A copy of the 
determination is placed on file in the public docket. The Associate 
Administrator may publish the determination or notice of the 
determination in the Federal Register.
    (e) A determination under this section constitutes an 
administrative finding of whether a particular requirement of a State 
or political subdivision or Indian tribe is preempted under the Federal 
hazardous material transportation law or any regulation issued 
thereunder, or whether preemption is waived.
    14. In Sec. 107.223, paragraph (a) would be revised to read as 
follows:


Sec. 107.223  Petition for reconsideration.

    (a) Any person aggrieved by a determination under Sec. 107.221 may 
file a petition for reconsideration with the Associate Administrator. 
The petition must be filed within 20 days of publication of the order 
in the Federal Register.
* * * * *


Sec. 107.227  [Amended]

    15. In Sec. 107.227, the wording ``Sec. 107.203(a) or'' would be 
removed.


Sec. 107.299  [Removed]

    16. Section 107.299 would be removed.
    17. In Sec. 107.305, paragraph (b) would be revised to read as 
follows:


Sec. 107.305  Investigations.

* * * * *
    (b) Investigators. Investigations under 49 U.S.C. 5121(a) are 
conducted by Hazardous Materials Safety personnel duly authorized for 
that purpose by the Associate Administrator. Inspections under 49 
U.S.C. 5121(c) are conducted by Hazardous Materials Enforcement 
Specialists whom the Associate Administrator has designated for that 
purpose.
    (1) An inspector will, on request, present his or her credentials 
for examination, but the credentials may not be reproduced.
    (2) An inspector may administer oaths and receive affirmations in 
any matter under investigation by the Associate 

[[Page 47732]]
Administrator for Hazardous Materials Safety. An inspector may gather 
information by reasonable means including, but not limited to, 
interviews, statements, photocopying, photography, and video- and 
audiorecording.
    (3) On concurrence of the Director, Office of Hazardous Materials 
Enforcement, an inspector may issue a subpoena for the production of 
documentary or other tangible evidence if, on the basis of information 
available to the inspector, the documents and evidence materially will 
advance a determination of compliance with this subchapter or 
subchapter C. Service of a subpoena shall be in accordance with 
Sec. 107.13(c) and (d). A person to whom a subpoena is directed may 
seek review of the subpoena by applying to the Chief Counsel in 
accordance with Sec. 107.13(h). A subpoena issued under this paragraph 
may be enforced in accordance with Sec. 107.13(i).
* * * * *
    18. In Sec. 107.331, the introductory paragraph and paragraph (d) 
would be revised to read as follows:


Sec. 107.331  Assessment considerations.

    After finding a knowing violation under this subpart, the Chief 
Counsel assesses a civil penalty taking the following into account:
* * * * *
    (d) The respondent's prior violations;
* * * * *
    19. A new subpart H of part 107 would be added to read as follows:

Subpart H--Approvals, Registrations and Submissions


Sec. 107.701  Purpose and scope.

    (a) This subpart prescribes procedures for the issuance, 
modification and termination of approvals, and the submission of 
registrations and reports, as required by this chapter.
    (b) The requirements of this subpart are in addition to any 
requirements in this chapter applicable to a specific approval, 
registration or report. If compliance with both a specific requirement 
and a requirement of this subpart is not possible, the specific 
requirement applies.
    (c) Registration under subpart F or G of this part is not subject 
to the provisions of this subpart.


Sec. 107.705  Registration and reporting.

    (a) Each registration or report under this section must be filed 
with the Associate Administrator for Hazardous Materials Safety, 
Research and Special Programs Administration, U.S. Department of 
Transportation, 400 Seventh Street SW, Washington, DC 20590-0001, 
Attention: Approvals, DHM-32, and contain, in order--
    (1) A citation to the section and, if applicable, subsection of the 
chapter under which the registration or report is made;
    (2) If the report is required by an approval, a registration or an 
exemption, a citation to the approval, registration or exemption 
number;
    (3) The name, address, and telephone number of the person on whose 
behalf the registration or report is made and, if different, the person 
making the registration or report;
    (4) If the person on whose behalf the registration or report is 
made is not a resident of the United States, a designation of agent for 
service in accordance with Sec. 107.7; and
    (5) A description of the activity for which the registration or 
report is required.
    (b) If the Associate Administrator determines that the registration 
or report does not comply with applicable requirements, the 
registration or reporting party shall make further submissions as the 
Associate Administrator deems necessary for compliance.
    (c) To request confidential treatment for information contained in 
the registration or report, the applicant must comply with 
Sec. 107.5(a).
Sec. 107.707  Applications.

    (a) Each application under this section must be filed with the 
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration, U.S. Department of Transportation, 400 
Seventh Street SW., Washington, DC 20590-0001, Attention: Approvals, 
DHM-32 and contain the following, in order--
    (1) A citation to the section and, if applicable, subsection of the 
chapter under which the approval is sought;
    (2) If an application for renewal or modification, a citation to 
the existing approval;
    (3) The name, address, and telephone number of--
    (i) The applicant;
    (ii) If different, the person filing the application; and
    (iii) For an applicant that is not an individual, an individual 
designated as an agent of the applicant for all purposes related to the 
application;
    (4) If the applicant is not a resident of the United States, a 
designation of agent for service in accordance with Sec. 107.7, and a 
statement that the applicant consents to personal jurisdiction in the 
United States for all purposes under the Federal hazardous material 
transportation law related to the activity for which the approval is 
required;
    (5) A description of the activity for which the approval is 
required; and
    (6) A copy of each document from an entity other than the Office of 
Hazardous Materials Safety required under the section cited at 
Sec. 107.707(a)(1) as a prerequisite to the approval.
    (b) Each application under this section must contain the following, 
in order:
    (1) The proposed duration of the approval;
    (2) The transport mode or modes affected, as applicable;
    (3) A full explanation, including all relevant information and 
documentation, as to why the applicant qualifies for the approval under 
applicable criteria, and why the approval otherwise is in accordance 
with law;
    (4) All relevant shipping and accident experience;
    (5) Identify any increased risk to safety or property that may 
result if the approval is granted, and specify the measures that the 
applicant considers necessary or appropriate to address that risk; and
    (6) Substantiate, with applicable analyses, data or test results, 
that the proposed alternative will achieve a level of safety that is at 
least equal to that required by the regulation.
    (c) For those approvals with an expiration date, each application 
for renewal or modification shall be filed in the same manner as an 
original application. If a complete and conforming renewal application 
is filed at least 60 days before the expiration date of an approval, 
the applicant, on written request, shall be issued one or more written 
extensions to permit operation under the terms of the expired approval 
until a final decision on the application for renewal has been made. 
Operation under an expired approval is prohibited absent a written 
extension. This paragraph does not limit the authority of the Associate 
Administrator to modify, suspend or terminate an approval under 
Sec. 107.713.
    (d) To request confidential treatment for information contained in 
the application, the applicant must comply with Sec. 107.5(a).


Sec. 107.709  Application processing.

    (a) No public hearing or other formal proceeding is required under 
this subpart before the disposition of an application.
    (b) At any time during the processing of an application, the 
Associate Administrator may request additional information from the 
applicant. If the 

[[Page 47733]]
applicant does not respond to a written request for additional 
information within 30 days of the date the request was received, the 
application will be deemed incomplete and denied.
    (c) The Associate Administrator may grant or deny an application, 
in whole or in part. At the Associate Administrator's discretion, an 
application may be granted subject to conditions appropriate to protect 
health, safety and property.
    (d) The Associate Administrator may deny the application if--
    (1) The application does not comply with this subpart;
    (2) The application contains inadequate justification, or otherwise 
does not meet the criteria set forth in the section or subsection under 
which the approval is sought;
    (3) The application contains a materially false or materially 
misleading statement, or fails to state a material fact;
    (4) The applicant does not demonstrate the qualifications set forth 
in the applicable regulations; or
    (5) The applicant does not demonstrate the level of capability and 
integrity required to perform the activity for which the application is 
filed. A pending or completed enforcement action may be considered 
evidence of insufficient capability or integrity.
    (e) Unless otherwise specified in this chapter or by the Associate 
Administrator, an approval does not expire.
    (f) The Associate Administrator notifies the applicant in writing 
of the decision on the application. A denial contains a brief statement 
of reasons.


Sec. 107.711  Withdrawal.

    An application may be withdrawn at any time before a decision to 
grant or deny it is made. Withdrawal of an application does not 
authorize the removal of any related records from the RSPA dockets or 
files.


Sec. 107.713  Approval modification, suspension or termination.

    (a) The Associate Administrator may modify an approval on finding 
that--
    (1) Modification is necessary to conform an existing approval to 
relevant statutes and regulations as they may be amended from time to 
time; or
    (2) Modification is required by changed circumstances to enable the 
approval to continue to meet the standards of Sec. 107.709(d).
    (b) The Associate Administrator may modify, suspend or terminate an 
approval, as appropriate, on finding that--
    (1) Because of changed circumstances, the approval would not be 
granted if application were made now;
    (2) The application contained inaccurate or incomplete information, 
and the approval would not have been granted had the application been 
accurate and complete;
    (3) The application contained deliberately inaccurate or incomplete 
information; or
    (4) The holder knowingly has violated the terms of the approval or 
an applicable requirement of this chapter, in a manner demonstrating 
insufficient capability or integrity to conduct the activity for which 
the approval is required.
    (c) Before an approval is modified, suspended or terminated, the 
Associate Administrator notifies the holder in writing of the proposed 
action and the reasons for it, and provides an opportunity to show 
cause why the proposed action should not be taken.
    (1) The holder may file a written response with the Associate 
Administrator within 30 days of receipt of notice of the proposed 
action.
    (2) The Associate Administrator, if necessary to avoid a measurable 
risk of significant harm to persons or property, may in the 
notification declare the proposed action immediately effective, for a 
maximum of 90 days from the date of the holder's receipt of the notice.
    (3) After considering the holder's written response to the notice, 
or after 30 days have passed without response from receipt of the 
notice, the Associate Administrator notifies the holder in writing of 
the final decision. Modification, suspension or termination shall be 
accompanied by a brief statement of grounds.
Sec. 107.715  Reconsideration.

    (a) An applicant or a holder may request that the Associate 
Administrator reconsider a decision under Sec. 107.709(f) or 
Sec. 107.713(c). The request must:
    (1) Be in writing and filed within 20 days of receipt of the 
decision;
    (2) State in detail all alleged errors of fact and law;
    (3) Enclose all documentation in support of the request to 
reconsider, with a justification for failure to provide the 
documentation previously; and
    (4) State in detail the modification of the final decision sought.
    (b) The Associate Administrator considers newly submitted 
information on a showing that the information could not reasonably have 
been submitted during application processing.
    (c) The Associate Administrator grants or denies, in whole or in 
part, the relief requested and informs the requesting person in writing 
of the decision.


Sec. 107.717  Appeal.

    (a) A person who requested reconsideration under Sec. 107.715 may 
appeal to the Administrator the Associate Administrator's decision on 
the request. The appeal must:
    (1) Be in writing and filed within 30 days of receipt of the 
Associate Administrator's decision on reconsideration;
    (2) State in detail all alleged errors of fact and law;
    (3) Enclose all documentation in support of the appeal, with a 
justification for failure to provide the documentation previously; and
    (4) State in detail the modification of the final decision sought.
    (b) The Administrator, if necessary to avoid a risk of significant 
harm to persons or property, may declare the Associate Administrator's 
action effective pending a decision on appeal, for a maximum of 90 days 
from the date of the holder's receipt of the decision.
    (c) The Administrator considers newly submitted information on a 
showing that the information could not reasonably have been submitted 
during application processing or reconsideration.
    (d) The Administrator grants or denies, in whole or in part, the 
relief requested and informs the appellant in writing of the decision 
on appeal. The Administrator's decision on appeal is the final 
administrative action.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    20. The authority citation for part 171 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec. 171.1  [Amended]

    21. In Sec. 171.1, in the introductory text of paragraph (a), the 
wording ``in commerce'' would be added immediately following the 
wording ``materials'' and preceding ``by''.
    22. Also in Sec. 171.1, a new paragraph (d) would be added to read 
as follows:


Sec. 171.1  Purpose and scope.

* * * * *
    (d) The use of terms and symbols prescribed in this subchapter for 
the stamping, marking, labeling, placarding and description of 
hazardous materials and packagings used in their transport.
    23. In Sec. 171.2, paragraphs (a), (b), (c) and (d) would be 
revised and a new paragraph (h) would be added to read as follows: 

[[Page 47734]]



Sec. 171.2  General requirements.

    (a) No person may offer or accept a hazardous material for 
transportation in commerce unless that person complies with subpart G 
of part 107 of this chapter, as applicable, and the hazardous material 
is properly classed, described, packaged, marked, labeled, and in 
condition for shipment as required or authorized by applicable 
requirements of this subchapter and of any exemption, approval or 
registration issued under subchapter A.
    (b) No person may transport a hazardous material in commerce unless 
that person complies with subpart G of part 107 of this chapter, and 
the hazardous material is handled and transported in accordance with 
applicable requirements of this subchapter and of any exemption, 
approval or registration issued under subchapter A.
    (c) No person may represent, mark, certify, sell, or offer a 
packaging or container as meeting the requirements of this subchapter 
or an exemption, approval or registration issued under subchapter A, 
governing its use in the transportation in commerce of a hazardous 
material, whether or not it is used or intended to be used for the 
transportation of a hazardous material, unless the packaging or 
container is manufactured, fabricated, marked, maintained, 
reconditioned, repaired and retested, as appropriate, in accordance 
with applicable requirements of this subchapter and of any exemption, 
approval or registration issued under subchapter A.
    (d) The representations, markings, and certifications subject to 
the prohibitions of paragraph (c) of this section include:
    (1) Specification identifications that include the letters ``DOT'' 
or ``UN'';
    (2) Exemption, approval, and registration numbers that include the 
letters ``DOT''; and
    (3) Test dates associated with specification, registration, 
approval, retest or exemption markings indicating compliance with a 
test or retest requirement of this subchapter, or an exemption, an 
approval or a registration issued under subchapter A.
* * * * *
    (h) No person shall--
    (1) Falsify or alter an exemption, approval, registration or other 
grant of authority issued under this subchapter or subchapter B of this 
chapter; or
    (2) Offer a hazardous material for transportation or transport a 
hazardous material in commerce, or represent, mark, certify, or sell a 
packaging or container, under a false or altered exemption, approval, 
registration or other grant of authority issued under this subchapter 
or subchapter B of this chapter.


Sec. 171.3  [Amended]

    24. In Sec. 171.3, paragraph (c) and the Note would be removed, and 
paragraph (d) would be redesignated as paragraph (c).
    25. In Sec. 171.8, a definition of ``Approval'' would be added and 
the definition of ``Person'' would be revised to read as follows:


Sec. 171.8  Definitions and abbreviations.

* * * * *
    Approval means a written authorization from the Associate 
Administrator for Hazardous Materials Safety to perform a function for 
which prior authorization by the Associate Administrator is required 
under Subchapter C.
* * * * *
    Person means an individual, firm, copartnership, corporation, 
company, association, joint-stock association, including any trustee, 
receiver, assignee, or similar representative thereof; or government, 
Indian tribe, or agency or instrumentality of any government or Indian 
tribe when it offers hazardous material for transportation in commerce 
or transports hazardous material to further a commercial enterprise, 
but such term does not include:
    (1) The United States Postal Service;
    (2) For the purposes of 49 U.S.C. 5123 and 5124, any agency or 
instrumentality of the Federal Government.
* * * * *

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

    26. The authority citation for Part 172 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    27. In Sec. 172.302, paragraph (c) would be revised to read as 
follows:


Sec. 172.302  General marking requirements for bulk packagings.

* * * * *
    (c) Exemption packagings. The outside of each bulk package used 
under the terms of an exemption shall be plainly and durably marked 
``DOT-E'' followed by the exemption number assigned, in letters at 
least two inches high on a contrasting background.
* * * * *

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

    28. The authority citation for part 173 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    29. In Sec. 173.22a, a new paragraph (c) would be added to read as 
follows:


Sec. 173.22a  Use of packagings authorized under exemptions.

* * * * *
    (c) When an exemption issued to a shipper contains special carrier 
requirements, the shipper shall furnish a copy of the exemption to the 
carrier before or at the time a shipment is tendered.

PART 178--SPECIFICATIONS FOR PACKAGINGS

    30. The authority citation for Part 178 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    31. In Sec. 178.3, a new paragraph (d) would be added to read as 
follows:


Sec. 178.3  Marking of packagings.

* * * * *
    (d) No person may mark or otherwise certify a packaging or 
container as meeting the requirements of a manufacturing exemption 
unless that person is the holder of or a party to that exemption, an 
agent of the holder or party for the purpose of marking or 
certification, or a third party tester.

    Issued in Washington, DC, on September 8, 1995, under authority 
delegated in 49 CFR part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-22816 Filed 9-13-95; 8:45 am]
BILLING CODE 4910-60-P