Proposed Rules. Final rule
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BILLING CODE 4120-01-P 72 85 Thursday, May 3, 2007 Rules and Regulations Part III Environmental Protection Agency 40 CFR Part 63 National Air Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning; Final Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0009; FRL-8303-6] RIN 2060-AK22 National Air Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is promulgating revised standards to limit emissions of methylene chloride (MC), trichloroethylene
(TCE)and perchloroethylene
(PCE)from facilities engaged in halogenated solvent cleaning. On December 2, 1994, EPA promulgated technology-based emission standards to control HAP emissions of halogenated solvents from halogenated solvent cleaning. Pursuant to the Clean Air Act
(CAA)section 112(f), EPA has evaluated the remaining risk to public health and the environment following implementation of the technology-based rule and is promulgating more stringent standards in order to provide an ample margin of safety to protect public health. These final standards will provide further reductions of MC, PCE, and TCE beyond the 1994 national emission standards for hazardous air pollutants (NESHAP), through application of a facility-wide total MC, PCE, and TCE emission standard. In addition, EPA has reviewed the standards as required by section 112(d)(6) of the CAA and has determined that, taking into account developments in practices, processes, and control technologies, no further action beyond what is required under CAA section 112(f) is necessary at this time. EFFECTIVE DATE: This final rule is effective May 3, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0009. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available ( *e.g.* , Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute). Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2002-0009, EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. EPA visitors are required to show photographic identification and sign the EPA visitor log. After processing through the X-ray and magnetometer machines, visitors will be given an EPA/DC badge that must be visible at all times. Informational updates will be provided via the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* as they are available. FOR FURTHER INFORMATION CONTACT: For questions about the final rule amendments, contact Mr. H. Lynn Dail, EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), Research Triangle Park, NC 27711; telephone number
(919)541-2363; fax number
(919)541-3470; e-mail address: *dail.lynn@epa.gov.* For questions on the residual risk analysis, contact Mr. Dennis Pagano, EPA, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Sector Based Assessment Group (C539-02), Research Triangle Park, NC 27711; telephone number
(919)541-0502; fax number
(919)541-0840; e-mail address: *pagano.dennis@epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by the final rule include: Category NAICS 1 code Examples of potentially regulated entities Industry Any of numerous industries using halogenated solvent cleaning, primary affected industries include those in NAICS Codes beginning with: 331 (primary metal man.), 332 (fabricated metal man.), 333 (machinery man.), 334 (computer and electronic product man.), 335 (electrical equipment, appliance, and component man.); 336 (transportation equipment man.); 337 (furniture and related products man.); and 339 (misc. man.) Operations at sources that are engaged in solvent cleaning using MC, PCE, or TCE. Federal, State, local, and tribal government Operations at sources that are engaged in solvent cleaning using MC, PCE, or TCE. 1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final rule. This final rule directs an owner or operator of a facility that is subject to the 1994 NESHAP for Halogenated Solvent Cleaning (40 CFR 63.460 of subpart T), to determine whether today's final standards require the facility additionally to operate under the certain specific emission limits. If you have any questions regarding the applicability of the final rule to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. *Docket.* The docket number for the National Emission Standards for Hazardous Air Pollutants: Halogenated Solvent Cleaning (40 CFR part 63, subpart T) is Docket ID No. EPA-HQ-OAR-2002-0009. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of the final rule is also available on the WWW. Following the Administrator's signature, a copy of the final rule will be posted on EPA's Technology Transfer Network
(TTN)policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. *Judicial Review.* Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of the final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by July 2, 2007. Under CAA section 307(d)(7)(B), only an objection to the final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under CAA section 307(b)(2), the requirements established by this final action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. Section 307(d)(7)(B) of the CAA further provides a mechanism for EPA to convene a proceeding for reconsideration, “if the person raising the objection can demonstrate to the EPA that it was impracticable to raise such an objection [within the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to the EPA should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel, Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004. *Outline.* The information presented in this Preamble is organized as follows: I. Background A. What is the statutory authority for this action? B. What is halogenated solvent cleaning? C. What are the health effects of halogenated solvent cleaning? D. What does the 1994 halogenated solvent cleaning NESHAP require? II. Summary of the Proposed Rule A. Issuance of the Notice of Data Availability
(NODA)III. Summary of the Final Rule A. What does the final rule require? 1. What are the requirements for halogenated solvent cleaning machines? 2. What are the requirements for halogenated solvent cleaning machines at military depot maintenance facilities? 3. What are the requirements for continuous web cleaners and halogenated solvent cleaning machines at narrow tube manufacturing and aerospace industries? B. What is the rationale for the final rule? 1. Revision of the Baseline Risk Estimate 2. Rationale for the 60,000 kg/yr MC Equivalent Emission Limit 3. Rationale for the Requirements for Halogenated Solvent Cleaning Machines at Military Depot Maintenance Facilities. 4. Rationale for Our Decisions Regarding Continuous Web Cleaners and Halogenated Solvent Cleaning Machines at Narrow Tube Manufacturing and Aerospace Facilities C. What is the compliance schedule? D. What is the final decision on the applicable unit risk value? E. What is EPA's finding on the Section 112(d)(6) review requirements? IV. Responses to Significant Comments A. Significant Comments on the Proposal 1. Emission Limit Option 1 or Option 2 2. Equation for MC Equivalents 3. Use of CalEPA or OPPTS URE for Implementation of the Emission Limit 4. Compliance Deadline 5. Applicability of Control Requirements 6. Costs Associated With Compliance 7. General Comments V. Responses to Significant Comments on EPA's December 14, 2006, Notice of Data Availability
(NODA)A. Emission Limits B. Cost Impacts C. Compliance Schedule VI. Impacts VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Congressional Review Act I. Background A. What is the statutory authority for this action? Section 112 of the CAA establishes a comprehensive regulatory process to address emissions of hazardous air pollutants
(HAP)from stationary sources. In accordance with CAA section 112(c), EPA identifies categories and subcategories of sources emitting one or more of the HAP listed in CAA section 112(b). CAA section 112(d) then requires us to promulgate national technology-based emission standards for each category of sources that emits or has the potential to emit any single HAP at a rate of ten tons or more per year or any combination of HAP at a rate of 25 tons or more per year (known as “major sources”), as well as for certain area sources emitting less than those amounts. For major sources, these technology-based standards must reflect the maximum reductions of HAP achievable (after considering cost, energy requirements, and non-air health and environmental impacts) and are commonly referred to as maximum achievable control technology
(MACT)standards. For area sources, CAA section 112(d)(5) provides that the standards may reflect generally available control technology or management practices in lieu of MACT, and are commonly referred to as generally available control technology
(GACT)standards. In what we refer to as the “technology review”, CAA section 112(d)(6) then requires EPA to review the CAA section 112(d) standards and to revise them “as necessary, taking into account developments in practices, processes and control technologies,” no less frequently than every 8 years. The residual risk review is described in section 112(f) of the CAA. EPA prepared a Report to Congress discussing (among other things) methods of calculating risk posed (or potentially posed) by sources after implementation of the MACT standards, the public health significance of those risks, the means and costs of controlling them, actual health effects to persons in proximity to emitting sources, and recommendations as to legislation regarding such remaining risk. The EPA prepared and submitted this report (“Residual Risk Report to Congress,” EPA-453/R-99-001) in March 1999. The Congress did not act on any of the recommendations in the report; thereby, triggering the second stage of the standard-setting process, the residual risk phase. CAA section 112(f)(2) requires us to determine whether additional standards are “required in order to provide an ample margin of safety to protect public health.” If the MACT standards for a HAP “classified as a known, probable, or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than 1-in-a-million,” EPA must promulgate residual risk standards for the source category (or subcategory) as necessary to provide an ample margin of safety. EPA's framework for making ample margin of safety determinations under CAA section 112(f)(2) is provided in the Benzene NESHAP (54 FR 38044, September 14, 1989) which was codified by Congress in CAA section 112(f)(2)(B). The EPA also must promulgate more stringent standards to prevent an adverse environmental effect (defined in CAA section 112(a)(7) as “any significant and widespread adverse effect * * * to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”), but must consider costs, energy, safety, and other relevant factors in doing so. B. What is halogenated solvent cleaning? Halogenated solvent cleaning machines use the halogenated solvents methylene chloride (MC), perchloroethylene (PCE), trichloroethylene (TCE), or 1,1,1,-trichloroethane
(TCA)and halogenated solvent blends or their vapors to remove soils such as grease, oils, waxes, carbon deposits, fluxes, and tars from metal, plastic, fiberglass, printed circuit boards, and other surfaces. Halogenated solvent cleaning is typically performed prior to processes such as painting, plating, inspection, repair, assembly, heat treatment, and machining. Types of solvent cleaning machines include, but are not limited to, batch vapor, in-line vapor, in-line cold, and batch cold solvent cleaning machines. Buckets, pails, and beakers with capacities of 7.6 liters (2 gallons) or less are not considered solvent cleaning machines. Halogenated solvent cleaning does not constitute a distinct industrial category, but is an integral part of many major industries. The five 3-digit NAICS Codes that use the largest quantities of halogenated solvents for cleaning are NAICS 337 (furniture and related products manufacturing), NAICS 332 (fabricated metal manufacturing), NAICS 335 (electrical equipment, appliance, and component manufacturing), NAICS 336 (transportation equipment manufacturing), and NAICS 339 (miscellaneous manufacturing). Additional industries that use halogenated solvents for cleaning include NAICS 331 (primary metals), NAICS 333 (machinery), and NAICS 334 (electronic equipment manufacturing). Non-manufacturing industries such as railroad (NAICS 482), bus (NAICS 485), aircraft (NAICS 481), and truck (NAICS 484) maintenance facilities; automotive and electric tool repair shops (NAICS 811); and automobile dealers (NAICS 411) also use halogenated solvent cleaning machines. We estimated that there were approximately 16,400 batch vapor, 8,100 in-line, and perhaps as many as 100,000 batch cold cleaning machines in the U.S. prior to promulgation of the MACT standards. More recent information shows that the current number of cleaning machines is much lower than these pre-MACT estimates. We currently estimate the number of sources in this source category to be about 3,800 cleaning machines located at 1,900 facilities in the U.S. This estimate is based on information we collected in 1998 and reflects the decreases in HAP emissions and demand that were expected due to implementation of MACT control technologies and work practice standards. Information suggesting that further decreases in solvent usage and therefore, solvent emissions, have occurred in the post-MACT implementation years may reflect that either the number of sources in the source category have declined or that sources are implementing methods to recycle more solvent, resulting in reduced emissions and some cost savings. “Solvent cleaning machine” is defined in the **Federal Register** , 40 Code of Federal Regulations
(CFR)§ 63.461. Solvent cleaning machine types such as batch cleaners and in-line cleaners are also described. Both cleaner types can be designed to use either solvent at room temperature (cold cleaners) or solvent vapor (vapor cleaners). Continuous web cleaners are a subset of in-line cleaners that are used to clean products such as films, sheet metal, and wire in rolls or coils. The workload is uncoiled and conveyorized throughout the cleaning machine at speeds in excess of 11 feet per minute and recoiled or cut as it exits the machine. Emission points from continuous cleaners are similar to emission points from other inline cleaners. Continuous cleaners are semi-enclosed, with emission points where the workload enters and exits the machine. Squeegee rollers reduce carry out emissions by removing excess solvent from the exiting workload. Some continuous machines have exhaust systems similar to those used with some other in-line cleaners. C. What are the health effects of halogenated solvent cleaning? MC, PCE, TCA, and TCE are the primary halogenated solvents used for solvent cleaning. The health effects of these four solvents were described in the proposed rule of August 17, 2006 (71 FR 47680), which is available for review in docket EPA-HQ-OAR-2002-0009. All four produce acute and/or chronic non-cancer health effects at sufficient concentrations; three of the four have been classified as probable or possible human carcinogens by either EPA or other governmental or international agencies. Carbon tetrachloride and chloroform are no longer used as degreasing solvents; therefore, their health effects were not discussed in the proposed rule. The Agency's Integrated Risk Information System's
(IRIS)toxicological reviews of PCE, TCE and MC are currently being developed or revised. The current schedule indicates that the new or final IRIS toxicological reviews of the carcinogens PCE, TCE and MC are not expected until late 2008 for PCE, mid 2009 for MC, and late 2010 for TCE. A publicly available draft revised toxicological review of the non-carcinogenic HAP TCA, has been released for external peer review. A final revised IRIS toxicological review of TCA is not expected until late 2007. The National Research Council
(NRC)released a report in 2006 that described their findings after a comprehensive review of the health effects of TCE, focusing on critical issues in developing an objective, realistic, and scientifically based health risk assessment for TCE. This report is available at *http://www.nas.edu/catalog/11707.html.* Toxicity or status information for the four HAPs may be obtained from the following Web sites: EPA's Toxicity database at *http://www.epa.gov/ttn/atw/toxsource/table1.pdf* shows the benchmarks for the four HAPs used in the risk assessment. Specific information underlying the values used may be found at the following locations: California EPA's Web site at *http://www.oehha.ca.gov/air/hot_spots/index.html* has the background information on PCE and TCE used to develop the cancer potency values. The Agency for Toxic Substances and Disease Registry's Web site at *http://www.atsdr.cdc.gov/toxpro2.html* has the background information used to develop the non-cancer values for MC and PCE. EPA's IRIS Web site at *http://www.epa.gov/iris/index.html* provides the information supporting the cancer potency value for MC. Status reports for IRIS chemical reassessments, ( *i.e.* , TCA) are available at *http://cfpub.epa.gov/iristrac/index.cfm.* D. What does the 1994 halogenated solvent cleaning NESHAP require? On December 2, 1994, we promulgated national emission standards for halogenated solvent cleaning (59 FR 61801, (December 2, 1994)) and required existing sources to comply with the national emission standards by December 2, 1996. The promulgated standards in 40 CFR Subpart T include multiple alternatives to allow owners or operators maximum compliance flexibility. The final rules for the halogenated solvent cleaning source category are available in the docket, EPA-HA-OAR-2002-0009. II. Summary of the Proposed Rule The August 17, 2006 proposed rule would have required all owners and operators of halogenated solvent cleaning machines that are subject to the 1994 NESHAP (40 CFR Part 63, subpart T), except for cold batch area source cleaning machines subject to GACT, to comply with a facility-wide solvent emission limit, summarized in Table 1 of this Preamble. As proposed, the standards would be in addition to the requirements of the 1994 NESHAP. Specifically, we co-proposed two facility-wide emission limits for facilities that use multiple HAP solvents, 25,000 kg/yr and 40,000 kg/yr of MC equivalent emissions, and solicited comments on which of these two options would be the most appropriate. We developed a method for facilities using multiple HAP solvents to determine their emission limit by calculating their MC-equivalent emissions using the toxicity-weighting equation, which is shown as equation 1, below. We proposed that where more than one halogenated solvent is used at a facility, the owner or operator would be required to calculate the facility's weighted halogenated solvent cleaning emissions using equation 1 and to comply with the limit in the last row of Table 1 of this Preamble. For owners or operators of facilities that use a single halogenated solvent (MC, TCE or PCE), we proposed that the owner or operator of each affected facility would be required to ensure that its emissions of the single halogenated solvent would not exceed the single-solvent limits specified in Table 1 of this Preamble. Table 1.—Summary of the Proposed Facility-Wide Annual Emission Limits Solvents emitted Proposed facility-wide annual emission limits in kg/yr—option 1 Proposed facility-wide annual emission limits in kg/yr—option 2 PCE only a 3,200 b (26,700) a 2,000 b (16,700) TCE only 10,000 6,250 MC only 40,000 25,000 Multiple solvents—Calculate the MC-weighted emissions using equation 1 40,000 25,000 a *PCE emission limit calculated using California EPA (CalEPA) Unit Risk Estimate (URE).* b *PCE emission limit calculated using the EPA Office of Prevention, Pesticides and Toxic Substances (OPPTS) Unit Risk Estimate (URE).* *Equation 1:* (kgs/yr of PCE emissions × A)+(kgs/yr of TCE emissions × B) + (kgs/yr of MC emissions) = MC weighted emissions in kgs/yr In equation 1, the facility emissions of PCE and TCE are weighted according to their carcinogenic potency relative to that of MC. Thus, “A” in the equation is the ratio of the cancer unit risk estimate
(URE)for PCE to the URE for MC, and the “B” in the equation is the ratio of the URE for TCE to the URE for MC. Because the IRIS assessment for PCE is in process, we requested comment on the use of the CalEPA URE, the OPPTS URE, or other values in deriving the PCE emission limit for the final rule. See 71 FR 47680. As explained in our proposal, the value of “A” would be 1.5 or 12.5, depending on whether we used the OPPTS URE or the CalEPA URE value for PCE. The value for “B” is 4.25. At proposal, we stated that there may be other approaches for deriving emissions standards for facilities that use multiple HAP. We requested comment on other possible methods for establishing emission limits at facilities using more than one of the listed HAP solvents. Further, at proposal we presented and discussed our evaluation of four other emission limits that would reduce residual risk. These emission limits are summarized below: • 100,000 level—Sources would reduce MC-equivalent emissions to no more than 100,000 kg/yr (220,000 lbs/yr). • 60,000 level— Sources would reduce MC-equivalent emissions to no more than 60,000 kg/yr (132,000 lbs/yr). • 15,000 level— Sources would reduce MC-equivalent emissions to no more than 15,000 kg/yr (33,000 lbs/yr). • 6,000 level—Sources would reduce MC-equivalent emissions to no more than 6,000kg/yr (13,200 lbs/yr). See 71 FR 47680-81 for further discussion of these four emission levels. We proposed a compliance deadline of two years after the effective date of the final rule for existing sources by resolving the seemingly conflicting provisions of section 112(f)(4)(A) and 112(i), and by determining that CAA section 112(i) was the controlling provision for compliance deadlines for existing sources with regard to standards promulgated under CAA section 112(f)(2). This proposal was based on our belief that the proposed compliance date was realistic for any affected facility that has to plan a control strategy, purchase and install the control device(s), and bring the control device(s) online. See 71 FR 47683-84 for a complete discussion of the proposed facility-wide solvent emission limit, compliance options, and our rationale for proposing the facility-wide solvent emission limit. A. Issuance of the Notice of Data Availability
(NODA)We received comments on the proposed rule from industry, states, solvent manufacturers, industry associations and district air associations. Industry's comments were primarily submitted by four specific sectors: Narrow tubing manufacturing facilities, facilities that manufacture specialized products requiring continuous web cleaning, aerospace manufacturing and maintenance facilities, and military depot maintenance facilities. Additional comments were submitted by facilities that use multiple halogenated solvent cleaning machines. Comments and data submitted by the four industry sectors focused on the unique nature and size of the halogenated solvent cleaning machines they use in their cleaning operations. These data and information were otherwise not available to EPA at proposal. The commenters expressed concern about their ability to comply with the proposed emission limits because of technical and economic difficulties. They also expressed an inability to meet the proposed compliance deadline. Based on these comments and our desire to reconcile these concerns, we issued a Notice of Data Availability
(NODA)on December 14, 2006 (71 FR 75182). In addition, in order to have adequate time to address these concerns, we asked for and received an extension of our December 15, 2006 court-ordered promulgation deadline to April 16, 2007. The NODA was intended to gather more information, especially from these four industry sectors, on the availability of technology or methods to meet the proposed emission limits, the costs to achieve the proposed emission limits, and the time required to achieve the proposed emission limits. As a result of the NODA, EPA received significant comments from responders associated with the above-noted industries, industry associations, and commenters that were not associated with the above-noted industries. They provided additional data and information that were directly relevant to the promulgation of the proposed facility-wide emission limits. These data and information were otherwise not available to EPA at proposal. A more complete description of the comments received may be found in section V of this Preamble and in the docket for this rule. III. Summary of Final Rule A. What does the final rule require? Using the data from comments on the proposal and NODA, we re-evaluated the costs and technical feasibility of complying with the proposed emission limits. The re-analysis resulted in a final rule that changed from what we proposed, especially for four industry sectors: narrow tubing manufacturing facilities, facilities that manufacture specialized products requiring continuous web cleaning, aerospace manufacturing and maintenance facilities, and military depot maintenance facilities. 1. What are the requirements for Halogenated Solvent Cleaning Machines? EPA is promulgating a facility-wide emission limit of 60,000 kg/yr MC equivalent, as shown in Table 2 of this Preamble, applicable to all existing halogenated solvent cleaning machines with the exception of halogenated solvent cleaning machines used by the following industries: Facilities that manufacture narrow tubing, facilities that manufacture specialized products requiring continuous web cleaning, aerospace manufacturing and maintenance facilities, and military depot maintenance facilities. This final rule also requires owners or operators of halogenated solvent cleaning machines that use any one of the halogenated solvents covered by this rule ( *i.e.* , MC, PCE or TCE), with the exception of the halogenated solvent cleaning machines used by the above-noted industries, to ensure that facility-wide solvent emissions from all halogenated solvent cleaning activities are less than or equal to the limit for the single halogenated solvent specified in Table 2 of this Preamble. This final rule also requires halogenated solvent cleaning machines that are constructed or reconstructed after August 17, 2006, with the exception of halogenated solvent cleaning machines associated with the above-noted industries, to comply with the 60,000 kg/yr MC equivalent emission limit upon the effective date of this rule or upon startup, whichever occurs later. The revised requirements apply in addition to the 1994 NESHAP. For area sources subject to the 1994 NESHAP and constructed or reconstructed after August 17, 2006, the final rule revisions add to the previous 1994 NESHAP by requiring implementation of the 60,000 kg/yr MC equivalent facility-wide emission limit upon the effective date of this rule or upon startup, whichever occurs later. This final rule also limits the use of any one of the halogenated solvents covered by this rule ( *i.e.* , MC, PCE or TCE), at area sources, to the limits for the single halogenated solvent specified in Table 2 of this Preamble. The area sources in the halogenated solvent cleaning source category that are subject to GACT are not subject to these additional standards. These area sources are cold batch cleaning machines. When a facility's total halogenated solvent emissions from its degreasing operations exceed the applicable emission limits, the facility must implement means to comply with these amended standards. In addition, under this final rule, the 1994 NESHAP requirements for all halogenated solvent cleaning machines remain applicable. Compliance with the 60,000 kg/yr MC equivalent emission limit is demonstrated by determining the annual PCE, TCE, and MC emissions for all cleaning machines at the facility, using Equation 1 as necessary, and comparing to the emission limits in Table 2. There are no other additional equipment monitoring or work practice requirements associated with the facility-wide annual emissions limit. Annual emissions of PCE, TCE, and MC are determined based on records of the amounts and dates of the solvents added to cleaning machines during the year, the amounts and dates of solvents removed from cleaning machines during the year, and the amounts and dates of the solvents removed from cleaning machines in solid waste. Records of the calculation sheets showing how the annual emissions were determined must be maintained. A facility will determine compliance with the standards by comparing their annual MC-equivalent emissions to the limits specified in Table 2 of this final rule. Table 2.—Summary of the Facility-Wide Annual Emission Limits Solvents emitted Final general halogenated solvent cleaning facility-wide annual emission limits in kg/yr Final military maintenance facility-wide annual emission limits in kg/yr PCE only 4,800 8,000 TCE only 14,100 23,500 MC only 60,000 100,000 Multiple solvents—Calculate the MC-weighted emissions using equation 1 60,000 100,000 *Equation 1:* (kgs/yr of PCE emissions × A)+(kgs/yr of TCE emissions × B) + (kgs/yr of MC emissions) = MC weighted Emissions in kgs/yr In this equation, the facility emissions of PCE and TCE are weighted according to their carcinogenic potency relative to that of MC. Thus, “A” in the equation is the ratio of the URE for PCE to the URE for MC, and the “B” in the equation is the ratio of the URE for TCE to the URE for MC. The value of “A” is 12.5 (see section C below). The value for “B” is 4.25. 2. What are the requirements for halogenated solvent cleaning machines at military depot maintenance facilities? For existing halogenated solvent cleaning machines in use at military depot maintenance facilities where multiple halogenated solvents are emitted, the final rule sets a facility-wide emission limit of 100,000 kg/yr of MC equivalent emissions as indicated in Table 2 of this Preamble. This final rule also limits the use of any one of the halogenated solvents covered by this rule ( *i.e.* , MC, PCE or TCE), to the limits for the single halogenated solvent specified in Table 2 of this Preamble. In addition, the 1994 NESHAP requirements remain applicable. For halogenated solvent cleaning machines that are constructed or reconstructed after August 17, 2006 and that are used at military depot maintenance facilities, the final rule revisions add to the previous 1994 NESHAP by requiring implementation of the 100,000 kg/yr MC equivalent emission limit upon the effective date of this rule or upon startup, whichever occurs later. Military Depot Maintenance Facilities are Government-owned industrial centers that operate solely for the purpose of repairing, modifying, converting and refitting worn and/or damaged military assets for redistribution to military units and are subject to the 1994 NESHAP. Depot level maintenance includes the repair, fabrication, manufacture, rebuilding, assembly overhaul, modification, refurbishment, test, analysis, repair-process design, in-service engineering, upgrade, painting and disposal of parts, assemblies, subassemblies, software, components, or end items that require industrial shop facilities, tooling, support equipment, and/or personnel of higher technical skills, or processes beyond the military installation's organizational level capability. 3. What are the requirements for continuous web cleaners and halogenated solvent cleaning machines at narrow tube manufacturing and aerospace facilities? The requirements set forth in this final rule are not applicable to continuous web cleaning machines, halogenated solvent cleaning machines that are located at narrow tubing manufacturing facilities, and the aerospace manufacturing and maintenance industry and facilities. Narrow tube manufacturing facilities primarily engage in the production of small diameter (mechanical and hypodermic size) cold drawn metallic, seamless tubes from materials such as stainless steel, nickel alloys, titanium and its alloys, and alloys of zirconium with a portion of the outside diameters 1/4” or less (a subset of NAICS 331210), and are subject to the 1994 NESHAP. Aerospace manufacturing and maintenance facilities manufacture, rework, or repair aircraft such as airplanes, helicopters, missiles, rockets, and space vehicles, and are subject to the 1994 NESHAP. The 1994 NESHAP requirements remain applicable to all the continuous web and halogenated solvent cleaning machines associated with the above-noted facilities. For the above-noted facilities, we are adopting no changes to the 1994 NESHAP under CAA Section 112(f) because the current level of control called for by the existing NESHAP reduces HAP emissions to levels that present an acceptable level of risk, protects public health with an ample margin of safety, and prevents any adverse environmental effects. The finding regarding an “ample margin of safety” is based on a consideration of the additional costs of further control as represented by compliance with emissions limits adapted for each industry sector, considering availability of technology, costs and time to comply with further controls (see Section III.B., below for a discussion of our rationale for this final rule). B. What is the rationale for the final rule? Based on comments and data received on both the proposal and the NODA, we re-evaluated the risk, the technical feasibility, the costs of the proposed options, and the compliance time needed to implement the proposed options. This re-analysis focused especially on the four industry sectors discussed above. Additionally, in response to public comments we updated the risk assessment for the entire source category using the 2002 National Emissions Inventory
(NEI)database, which was not available for the proposal. The following rationale presents the results of our re-analysis of the data. 1. Revision of the Baseline Risk Estimate Based on public comment, we used the 2002 NEI inventory to re-analyze the risk from this source category. The resulting re-analysis of risk at the baseline emission level ( *i.e.* , the level of emissions allowed by the 1994 MACT) indicated that the maximum individual cancer risk
(MIR)associated with this source category is 100-in-a-million with an annual cancer incidence of 0.55. This is as compared to the 200-in-a-million MIR and 0.40 annual cancer incidence level that we presented at proposal, which was based on the 1999 NEI database. We consider both MIR values to be acceptable levels of maximum individual risk considering the number of people exposed at these levels and the absence of other adverse human and environmental health effects. We note that the MIR of 100-in-a-million (calculated using the 2002 NEI data) is the same regardless of the URE for PCE chosen for the risk analysis ( *i.e.* , the CalEPA value or the OPPTS value, which results were contrasted at proposal). This is because PCE is not the only driver of the MIR risk level for the highest risk facilities. Given the uncertainties associated with the development of emission inventories, neither the 1999 nor the 2002 NEI inventory should be considered as correct in an absolute sense or as suggesting temporal trends in degreasing machine populations or emissions. Rather, we consider them to be “snapshots” of the true long-term inventory of emissions for this source category, each carrying its own degree of uncertainty. As such, the derived risk assessment results compared above should be regarded as ranges within which the true risk metrics are likely to fall. The revised population risk distribution at baseline emission levels shows that about 25 people are exposed to the MIR risk level, about 22,000 people are at estimated risks of ≥ 10-in-a-million risk level, and about 4,000,000 people are at estimated risks of ≥ 1-in-a-million. This is compared to approximately 90 people exposed to risks at the MIR level (200-in-a-million), about 42,000 people at estimated risks of ≥ 10-in-a-million risk level, and about 6,000,000 people at estimated risks of ≥ 1-in-a-million that we presented at proposal. Similar to the MIR and annual cancer incidence metrics, these values may be an indication of the uncertainty presented by the databases because, as earlier explained, both inventories are “snapshots” of the industry rather than an absolute reflection of the “current” state of the industry. We did not reassess the environmental risks using the 2002 NEI inventory but believe that no “adverse environmental effects,” as defined in CAA section 112(a)(7), would occur given the similarities of the human health risk results between the 1999 NEI data and 2002 NEI data and the fact that we showed in the proposal that no adverse environmental effects would likely occur using the 1999 NEI inventory. 2. Rationale for the 60,000 kg/yr MC Equivalent Emission Limit EPA is promulgating a facility-wide emission limit of 60,000 kg/yr (MC equivalent emissions) applicable to emissions from all new and existing halogenated solvent cleaning machines that are subject to the 1994 NESHAP, with the exception of halogenated solvent cleaning machines used by the following industry sectors: Narrow tubing manufacturing, facilities that manufacture specialized products requiring continuous web cleaning, aerospace manufacturing and maintenance, military depot maintenance operations, and cold batch cleaning machines (which are subject to GACT). Area sources operating halogenated solvent cleaning machines that are subject to GACT also are not required to comply with the facility-wide emission limits. This final rule reflects our decision that the 60,000 kg/yr MC equivalent emission limit from the August 17, 2006 proposal provides an ample margin of safety to protect public health and prevents adverse environmental effects. In response to public comments received on our proposal and subsequent NODA, we re-examined the data and assumptions used to estimate the risk and compliance costs presented in the Preamble to our proposed rule. We determined that certain significant data and assumptions that we used to develop our cost estimates at proposal were either no longer relevant, not reflective of more recent inventory data, or not valid. As a result, we re-evaluated risks using the more recent inventory data and modified our cost estimates in response to public comment. The most important change we made is that we re-analyzed the risk metrics and costs using the halogenated solvent cleaning facilities in the finalized 2002 NEI, but removing facilities in four specific industry sectors—aerospace manufacture and maintenance facilities, narrow tube manufacturing facilities, facilities using continuous web cleaning machines, and military equipment maintenance facilities—from the database for the purpose of estimating the risks and compliance costs associated with the remaining facilities (Sections III.A.3 and III.B.3 explain our rationale for removing the facilities in these industry sectors from this analysis). Other changes we made to our cost estimates in response to public comment are as follows: • We used the finalized 2002 NEI database containing facility and emissions data as the source of our baseline emissions estimates. We removed aerospace manufacture and maintenance facilities, narrow tube manufacturing facilities, facilities using continuous web cleaning machines, and military equipment maintenance facilities from the database for the purpose of estimating the compliance costs for the remaining facilities. (Sections III.A.3 and III.B.3 explain our rationale for removing these facilities from this analysis.) • We changed our assumptions about the percent reductions in emissions that can be achieved by vacuum-to-vacuum machines from 97 percent to 95 percent. • In the proposal, we assigned no operation and maintenance cost to vacuum-to-vacuum machines. Based on public comment, our cost estimates for this final rule incorporate annual operation and maintenance costs of $18,832 for each machine. • We updated the cost per gallon of PCE and TCE based on information provided by commenters representing manufacturers of solvents and the narrow tube manufacturing industry. • We added a carbon adsorption device
(CAD)option that assumes a 30 percent control in emissions. We did not have this option in the cost assumptions we made at proposal. We received comments that this option may be available for some industries but that it is at least ten times more expensive than the retrofit options we costed for the proposal. • We reduced the number of units for which solvent switching could be a compliance option from 30 percent, used in the proposal, to 15 percent. We also corrected our method for calculating the emission reduction impacts and solvent savings associated with solvent switching. After re-assessing the risk and calculating revised cost estimates, we re-examined our decision as to what level of control is necessary to provide an ample margin of safety to protect human health and to prevent adverse environmental effects, as required by the second step of the residual risk process under CAA section 112(f)(2). We considered the re-assessed risk estimates and the other health information along with additional factors consistent with the 1989 Benzene NESHAP (54 FR 38044, September 14, 1989), such as cost, technological feasibility, uncertainties and other relevant factors as discussed at proposal. We re-analyzed the risk metrics using the halogenated solvent cleaning facilities in the 2002 NEI, but removing aerospace manufacture and maintenance facilities, narrow tube manufacturing facilities, facilities using continuous web cleaning machines, and military depot maintenance facilities. At proposal we had presented two options for emission limits that would apply to all facilities in the category subject to the 1994 MACT standards—25,000 kg/yr MC equivalent and 40,000 kg/yr MC equivalent. We estimated that the 25,000 kg/yr limit would result in an emissions reduction of 6,778 tons/year, thereby reducing the MIR to 10-in-a million and reducing cancer incidence by 0.14-0.27 cases annually (depending on which URE we use for PCE), at an annual cost savings of $4.9 million annually or a cost savings of $724/ton HAP reduced. Comments received included support for and against this level of emissions reduction. Similarly, at proposal we estimated that applying the 40,000 kg/yr limit to facilities in the entire source category would result in an emissions reduction of 5,911 tons/yr, reducing the MIR to 20-in-a million and reducing cancer incidence by 0.12-0.23 cases annually, at an annual cost savings of $5.9 million annually or a cost savings of $1,000/ton HAP reduced. 1 1 In considering these revised cost estimates, it should be noted that there may be inherent uncertainties or anomalies in the availability of information that underlie our costs for our options, regardless of whether the estimates be positive costs or net cost savings. There may also be other factors that are not reflected in these estimates, however. For example, these estimates are largely based on a 15-year equipment life for existing affected cleaners (20-year for new cleaners) and a discount rate of 7 percent. If industry determines that a shorter equipment life for the controls considered in this analysis is appropriate based on perceived uncertainty of future availability of these solvents, then the opportunity cost of capital will be higher and our estimates of net cost savings may be altered. If these controls are in operation longer than expected by industry, however, then a longer equipment life would be appropriate and our estimates of costs, which may be net costs or net savings, may also be altered. In developing the final rule, we initially re-examined the 25,000 kg/yr and 40,000 kg/yr levels of control for the subset of the category that excludes the four specific industry sectors identified above, using costing assumptions revised based on public comment as described above. This re-analysis uses the 2002 NEI data rather than the 1999 NEI data used in the proposal. We observed that although the overall reductions in MIR and cancer incidence at these levels would be similar to those estimated at proposal for the entire category, the substantial cost savings estimated at proposal would change to a net cost for both emission limits. This is a result of both our use of certain cost assumptions at proposal that have been amended for analyzing the cost of the final rule and the fact that four industry sectors are now being considered separately in this final rule. Specifically, for the 25,000 kg/yr limit, our analysis of the subset of the category that excludes the four specific industry sectors shows the same reduction in MIR (to 10-in-a-million) and similar estimated reduction in cancer incidence, 0.24 cases annually, as we showed at proposal. In contrast, our cost analysis for this subset of the source category shows a total annualized cost (not savings) of about $1.2 million, or a cost of about $520 per ton HAP reduced (we estimate 2,351 tons HAP reduced at this level). Similarly, for the 40,000 kg/yr limit, our revised analysis shows the same reduction in MIR (to 20-in-a-million), and a similar estimated reduction in cancer incidence, 0.21 cases annually, as we showed at proposal, but at an annualized cost (not savings) of $130,000, or a cost of about $74 per ton HAP reduced (we estimate 1,759 tons HAP reduced at this level). The incremental tons of HAP reduced is nearly 600 tons with the incremental cost of about $1,800 per ton HAP reduced. Because we estimated that the cost of achieving the 25,000 kg/yr and 40,000 kg/yr emissions limits would be considerably greater than what we had projected for this rulemaking at proposal, we additionally evaluated the next less stringent emission limit that was considered and presented in the proposal, but not selected as one of our two proposed options for limiting emissions from the entire category—a 60,000 kg/yr MC equivalent facility-wide emission limit. For the subset of the category that excludes the four specific industry sectors, we estimated that the 60,000 kg/yr level reduces the MIR to between 20-in-a million and 50-in-a million and reduces cancer incidence by about 0.19 cases/yr. These risk reductions are estimated to be achieved at total annualized cost savings of just over $1.3 million, or a savings of $832/ton of HAP reduced (we estimate 1,594 tons HAP reduced at this level). To more fully analyze the implications of the various emission limits, we calculated the overall and incremental annualized cost per cancer case avoided. In this case, we compared the proposed 40,000 kg/yr option and the next less-stringent alternative, the 60,000 kg/yr MC equivalent emission limit. Given the overall reduction in incidence from the baseline of 0.21 cancer cases/yr at the 40,000 kg/yr level and the total annualized cost of $130,000, the overall cost per cancer case avoided is about $620,000. 2 For the 60,000 kg/yr level, there is an estimated overall reduction in incidence of 0.19 cases/yr and a total annualized cost savings of just over $1.3 million, resulting in an overall savings of almost $7 million per cancer case avoided. While these cost estimates for the overall reductions from current levels of control appear to be modest (given the estimated cost savings of intermediate control levels), the incremental reduction in emissions and risk of going from the 60,000 kg/yr to the more stringent 40,000 kg/yr level are small and the corresponding cost-effectiveness estimates of these incremental reductions are unacceptably high. The incremental incidence avoided between the 40,000 kg/yr level and the 60,000 kg/yr level is 0.02 cases. The annualized incremental cost between the two levels is about $1.5 million, with resulting incremental cost per cancer case avoided of about $73 million. (Annual operation and maintenance and annualized capital costs of $1.9 million per year and an estimated costs savings for solvent recovery of $0.4 million per year.) 2 For comparison purposes, we estimated that compliance with the requirements of the National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities Final Rule (71 FR 42727, July 27, 2006), would result in an annualized cost of about $7 million to achieve a cancer incidence reduction of 2 cancer cases per year. This yields a cost of $3.5 million per cancer case avoided based on the CalEPA unit risk estimate for PCE. After considering revisions to the risk and cost estimates presented at proposal, we believe that the 60,000 kg/yr MC equivalent emission limit for those halogenated solvent cleaning machines not identified as being in use by one of the four sectors discussed in Section III.A.3., above, protects public health with an ample margin of safety and prevents adverse environmental effects. Specifically, the 60,000 kg/yr level reduces 90 percent of the HAP emissions reduced at the 40,000 kg/yr level. The 60,000 kg/year emission limit achieves reductions in MIR and cancer incidence that are similar to those expected at the 25,000 kg/yr and 40,000 kg/yr emission levels. The incremental reduction in emissions with a 40,000 kg/yr level instead of 60,000 kg/yr imposes an incremental cost of $1.5 million per year. The incremental cost per ton of this reduction is roughly $9,000/ton. Moreover, in comparing the 40,000 kg/yr and the 60,000 kg/yr emission limits, the incremental cost per cancer case avoided, $73 million/case, is substantial, supporting our conclusion that the $60,000 kg/yr emission limit provides an ample margin of safety consistent with the Benzene NESHAP. 3. Rationale for the Requirements for Halogenated Solvent Cleaning Machines at Military Depot Maintenance Facilities For halogenated solvent cleaning machines in use at military depot maintenance facilities, the final rule sets a facility-wide emission limit of 100,000 kg/yr (MC equivalent emissions). In addition, the 1994 NESHAP requirements remain applicable. For halogenated solvent cleaning machines at these facilities that are constructed or reconstructed after August 17, 2006, the final rule revisions add to the previous 1994 NESHAP by requiring implementation of the 100,000 kg/yr MC equivalent emission limit upon the effective date of this rule or upon startup, whichever occurs later. We based this decision on comments received from one such facility that we considered representative of these types of military facilities that maintain and restore military weapons systems. They indicated an increase in maintenance and restoration levels due to current worldwide military activities and that they could not meet either of the proposed emission limits within the proposed two-year compliance period. In additional comments in response to the NODA, and in subsequent meetings with the Agency, they indicated that they could meet the 100,000 kg/yr emission limit within a three-year compliance timeframe. We then projected that implementation of the 100,000 kg/yr MC equivalent emission limit will reduce the MIR from halogenated solvent cleaning machines associated with a military depot maintenance facility from about six-in-a-million to about three-in-a-million with an estimated reduction in annual cancer incidence of 0.002 cancer cases per year. An analysis of the costs for only this facility which was based on information from the 2002 NEI shows that the annual cost effectiveness of complying with this limit results in a cost savings of about $625/ton with annualized cost savings of approximately $55,761. Therefore, we believe that a requirement for these facilities to meet a 100,000 kg/yr MC equivalent emission limit is technically feasible, provides an annual and long-term cost savings, provides an ample margin of safety to protect public health and prevents adverse environmental effects. 4. Rationale for Our Decisions Regarding Continuous Web Cleaners and Halogenated Solvent Cleaning Machines at Narrow Tube Manufacturing and Aerospace Facilities The requirements set forth in this final rule are not applicable to continuous web cleaning machines, halogenated solvent cleaning machines that are associated with the narrow tubing manufacturing industry, and aerospace manufacturing and maintenance industry and facilities. The requirements of the 1994 NESHAP and its subsequent amendments (where relevant) remain applicable to all the continuous web and halogenated solvent cleaning machines associated with the above-noted facilities. We received comments from these three sectors on the proposal, in response to the NODA, and in subsequent meetings with representatives of these industries. They submitted information that stressed the unique nature of their cleaning operations, the technical infeasibility, the uncertainty of our original cost estimates, the processes involved, including review of their process changes by other federal agencies such as FDA and FAA (see Section IV.A. for additional discussion), and the difficulty they would experience in complying with the proposed emission limits within the proposed timeframe. Based on new information they provided in response to the NODA, including new cost information, we re-analyzed the costs for each of these three sectors and estimated the annual cost effectiveness of complying with emission limits they provided in comments. For the Aerospace sector, we estimated an MIR of 30-in-a-million and an annual cancer incidence of 0.066 at their baseline emission level. We then projected that implementation of the 100,000 kg/yr MC equivalent limit (the maximum reduction we discussed in the proposal) would reduce the MIR from halogenated solvent cleaning machines associated with this sector to about 20-in-a-million with a reduction to their annual cancer incidence to about 0.03 cancer cases annually. Our revised cost estimate showed a cost effectiveness of $2,000/ton with a total annualized cost of nearly $630,000. For the narrow tube manufacturers, we estimated an MIR of 70-in-a-million with an annual cancer incidence of 0.08 at their baseline level of emissions. Based on comments from this industry indicating that they could reasonably accomplish a 10 percent reduction in their current emission levels within a three-year compliance time, we developed risk and cost estimates for that level of reduction. We have estimated that the MIR would decrease to approximately 60-in-a-million with very little change expected in the annual cancer incidence. The annual cost effectiveness for complying with an overall 10 percent reduction in total emissions limit would be a cost of over $3,600/ton with total annualized costs of nearly $700,000. For the continuous web cleaners, we estimated a baseline MIR risk level of about 30-in-a-million with an annual cancer incidence of 0.03 cases. Comments from this industry suggested they could achieve an 80 percent overall control efficiency compared to their current emission levels, within a three-year compliance period. The current NESHAP limit requires a 70 percent overall control efficiency. To achieve the 80 percent overall efficiency, facilities would be required to reduce emissions by 33 percent ((1-70%) − (1-80%) / (1-70%) = 33%). We developed risk and cost estimates for that level of reduction. We have estimated that under this scenario, the MIR would decrease to approximately 20-in-a-million with and the annual cancer incidence would decrease to 0.02 cases annually. The annual cost effectiveness of complying with the 80 percent overall emission control efficiency rate is over $3,400/ton with a total annualized costs of over $600,000. In summary, we are adopting no changes to the 1994 NESHAP, under CAA Section 112(f) for the halogenated solvent cleaning machines used by the above-noted specific industry sectors ( *i.e.* , aerospace, narrow tube manufacturers, and the facilities that use continuous web cleaning machines) because the current level of emissions control called for by the existing NESHAP both reduces risk to acceptable levels and provides an ample margin of safety to protect public health. Further, additional standards are not necessary to prevent adverse environmental effects. The finding regarding an “ample margin of safety” is based on a consideration of the relatively small reductions in health risks likely to result from the feasible emission reductions we evaluated, the additional costs required to achieve further control, the lack of technically feasible control options for these sectors, and the time required to comply with any requirements. C. What is the compliance schedule? In this final rule, in accordance with CAA section 112(i)(3), we are promulgating a compliance deadline of three years from the effective date of this final rule for all existing halogenated solvent cleaning machines and for all existing halogenated solvent cleaning machines at military depot maintenance facilities. Facilities described in Section III.A.3 above are not subject to further requirements beyond the 1994 NESHAP. At proposal, we determined that CAA section 112(i) was the controlling provision that addresses compliance deadlines for existing sources with regard to standards promulgated under CAA sections 112(d)(6) and 112(f)(2). See 71 FR 47684-86. We hereby incorporate our discussion by reference. In the NODA, we asked for comments on the issue of whether a two year compliance deadline was sufficient time to comply with the co-proposed facility-wide emission limits. We received significant comments on this compliance deadline issue. We are persuaded by the commenters representing the general population that use halogenated solvent cleaning machines that existing sources will need more than 2 years to comply with the final revised standards. Affected facilities would have to plan their control strategy, purchase and install the control device(s), and subsequently, bring the control device(s) online. We, therefore, believe that for the remaining halogenated solvent cleaning facilities, this final compliance deadline of three years is more reasonable and realistic than the proposed two year compliance deadline. D. What is the final decision on the applicable unit risk value? At proposal, we explained that the Agency's IRIS health assessment for PCE is currently being revised. Therefore, we requested comment on the use of the CalEPA URE, 3 the OPPTS URE, 4 or other values in deriving the PCE emission limit for the final rule (71 FR 47680). We received comments both supporting and opposing our use of the CalEPA URE for PCE. 3 California Department of Health Services (CDHS), *Health Effects of Tetrachloroethylene (PCE),* Berkeley, CA, April 1992. (Available in the rulemaking docket.) 4 U.S. Environmental Protection Agency, *Cleaner Technologies Substitutes Assessment: Professional Fabricare Processes* (EPA 744-B-98-001), June 1998. (Available at *http://www.epa.gov/dfe/pubs/garment/CTSA/* .) For those situations where a particular chemical does not have a cancer potency value in IRIS, we have established a prioritization process for accessing other health assessment information (as described in our “Residual Risk Report to Congress” on pages 56 through 58). This hierarchy includes peer reviewed cancer potency values from EPA as well as from other agencies that conduct chemical carcinogenicity assessments such as the California Environmental Protection Agency (CalEPA). See also our responses to comments on this issue in the final Coke Oven Batteries NESHAP (70 FR 19998-20000, (April 15, 2005)). In this final rulemaking, we have chosen to use the CalEPA URE in preference to the OPPTS value for a number of reasons. CalEPA's PCE cancer unit risk value was derived using two different approaches for estimating the metabolized dose in humans, whereas the OPPTS value incorporated a single model of metabolism. Additionally, while the CalEPA approach allowed for the consideration of variability and uncertainty, the OPPTS approach did not. We have used both the CalEPA and OPPTS UREs for PCE in the risk characterizations for the dry cleaning residual risk rulemaking (71 FR 42723) and for this rulemaking (71 FR 47670; see also the risk document in the rulemaking docket). However, for the purposes of this rulemaking, we have chosen to use the CalEPA URE to implement the facility emission limits. Explicit consideration of variability and uncertainty is more consistent with EPA's current approach for conducting risk assessments. EPA also uses the CalEPA URE in the 1999 National-Scale Air Toxics Assessment (available at: *http://www.epa.gov/ttn/atw/nata1999/* ), in Superfund cleanup decisions, and in EPA's Air Toxics Risk Assessment Reference Library (available at: *http://www.epa.gov/ttn/fera/risk_atra_main.html* ; dose-response values in Appendix C at: *http://www.epa.gov/ttn/fera/data/risk/vol_1/appendix_c.pdf* . We have the authority to revisit (and revise, if necessary) any rulemaking if there is sufficient evidence that changes within the affected industry or significant improvements to the science suggest that the public might experience significantly more or less risk than estimated in the risk assessment prepared for the rulemaking (See CAA section 301). In particular, it may become necessary at some time in the future to revise the facility emission limits if the pending IRIS assessments result in significant changes to the UREs for PCE, TCE, or MC. Additionally, while we have chosen to use the CalEPA URE for PCE for implementing this rule, this should not be interpreted as a precedent for all future rules. As was stated earlier, in the dry cleaning residual risk rulemaking (71 FR 42723) and in this rulemaking, we used both the CalEPA and OPPTS values to characterize the risk. When there is uncertainty, it is EPA's preference to provide a range of values. However, for the purposes of this rulemaking, a single value was needed to implement the facility emission limits. EPA's choice of the CalEPA value does not mean that this is the only value to be considered while the EPA IRIS assessment is pending. E. What is EPA's finding on the CAA section 112(d)(6) review requirements? We stated in the proposal that in the technology review under CAA section 112(d)(6) we did not identify any additional control technologies beyond those that are already in widespread use within the source category ( *e.g.* , freeboard refrigeration devices, extended freeboards, working mode and downtime covers). We concluded that the proposed rule changes would satisfy both CAA section 112(d)(6) and 112(f)(2). See 71 FR 47685. Since the August 17, 2006 proposal, we have not identified any significant developments in practices, processes, or control technologies. We have discovered, however, that affected industries are researching the development of halogenated solvent cleaning machines and alternate cleaning technologies. At some time in the future these technologic developments could lead to significant technologies relevant to the CAA section 112(d)(6) analysis, but we understand that to date the engineering and implementation of such technology has not been proven to satisfy the performance needs of the industry coupled with the low-emission directives of the agency. We therefore conclude that the final facility-wide emissions limits we are promulgating today satisfy our obligations under both CAA sections 112(d)(6) and 112 (f)(2). IV. Responses to Significant Comments A. Significant Comments on the Proposal During the public comment period, EPA received significant comments, new data, and information concerning program elements for which we specifically sought public comments. We received favorable and unfavorable comments on both proposed emission limits. Commenters provided substantial information on the use of the methylene chloride equivalency equation. We received significant comments on the implementation of the emission limits from commenters representing narrow tube manufacturing facilities, aerospace manufacturing and maintenance facilities, military depot maintenance facilities, facilities that use multiple solvent cleaning machines, and facilities that use continuous web cleaning machines. All of the comments, information, and data submitted by commenters are compiled in the Response to Comments document available in the Air Docket ID No. EPA-HQ-OAR-2002-0009. Some of the more significant comments are discussed below. 1. Emission Limit Option 1 or Option 2 *Comment:* While four commenters supported the proposed Option 1 (40,000 kg/yr MC equivalent emission limit), other commenters encouraged EPA to set relative standards. Another commenter, an association of state air program administrators, believed that Option 2 (25,000 kg/yr of MC equivalent emission limit) still presented unacceptably high risks; but noted that it was preferable to Option 1. Three commenters supported our proposed Option 2. According to the commenters, Option 2 would provide significant emissions reductions and greater protection of public health, safety, and welfare. In addition to lowering the potential cancer and non-cancer chronic health risk associated with exposure to the three HAPs, the additional reductions of trichloroethylene
(TCE)under Option 2 would likely augment the State's efforts to reach attainment with the 8-hour ozone standard since TCE is identified as an ozone precursor. One commenter recognized the reductions in the number of people exposed to cancer risk and the capital costs between Option 1 and the more stringent Option 2. The commenter stated that under Option 2 the numbers of affected sources are greater than the number of affected sources under Option 1, but that EPA determined that those affected sources complying with Option 2 would still save money because the annual solvent savings were projected to exceed the annualized capital and operating costs. The commenter added that even at a financial cost, Option 2 would be warranted, and that given the financial savings, Option 2 was the only reasonable choice. One commenter stated that the proposed facility-wide emission limits would leave source owners only two compliance options:
(1)Establish internal production restrictions or
(2)install add-on capture and control equipment to ensure operating flexibility. Another commenter requested that EPA exempt batch cold cleaning machines operating with capture and control devices that are subject to federally-enforceable monitoring conditions in a Title V permit. *Response:* As stated in Section II of the Preamble, we presented and discussed our evaluation of four other emission limits that would reduce residual risk. These emission limits were 100,000 kg/yr, 60,000 kg/yr, 15,000 kg/yr and 6,000 kg/yr (71 FR 47680-81). In this final rule, as stated in Section II.A. of the Preamble, we are promulgating the 60,000 kg/yr facility-wide MC equivalent emission limit. EPA's risk assessment for the proposal and an updated risk assessment for the final rule using data from EPA's 2002 NEI database show that the maximum individual risk
(MIR)and population risks associated with the majority of halogenated solvent cleaning machines would be reduced by adopting the 60,000 kg/yr MC-equivalent emission limit. Based on the more recent assessment using the 2002 NEI, the MIR would be reduced from 100-in-a-million to between 20 and 50-in-a-million and the total number of people with risks greater than 1-in-a-million would also be reduced from 4,000,000 people to between 500,000 and 1,000,000. Our cost analyses at proposal and the more recent revisions to the cost estimates based on the 2002 NEI show that these emission and risk reductions are technically feasible within the three-year time for compliance, and facilities would experience a cost savings implementing the emission limit. Therefore, we believe that the 60,000 kg/yr facility-wide emission limit (expressed as MC equivalent emissions) applied to the halogenated solvent cleaning machines, except where noted, provides an ample margin of safety to protect the public's health because it significantly reduces cancer risks, prevents adverse environmental effects, and given the level of the risk reductions, is technically feasible and can be accomplished at reasonable costs. EPA is not exempting batch cold cleaning machines that operate with capture and control devices that are subject to Title V permitting requirements. 2. Equation for MC Equivalents *Comment:* Two commenters supported EPA's toxicity-weighted approach for calculating the facility-wide annual emission limits for affected sources, except where otherwise noted, that use more than one of the three HAPs subject to the proposed Subpart T residual risk rule. This toxicity-weighted calculation was proposed as Equations 1 and 9 in the Preamble, and proposed 40 CFR 63.471(a)(2), respectively. In our August 17, 2006 proposal, EPA requested comment on this methodology (71 FR 47675). Another commenter was concerned about the use of the methylene chloride equivalent. The commenter stated that the use of this term was somewhat misleading because rather than a toxic equivalent, this methodology reflects a weighted-emission approach using toxicity-weighted emission rates. The commenter further stated that while EPA conservatively added the cancer and noncancer toxicity-weighted emissions rates, the scaling factors we used were simply the ratio of the cancer unit-risk estimates and noncancer reference concentrations multiplied by the post-MACT emission rate or exposure level. The commenter also stated that because EPA did not specifically conduct toxicological comparisons (common mode of action and metabolites and possible synergistic interactions among the components of the mixture) for PCE, TCE and MC, we should be careful not to use the term “methylene chloride equivalent” as a “toxic equivalent,” because the latter is a specific term associated with a supporting body of literature and a documented methodology. Another commenter noted that because the current recordkeeping and annual reports requirements, under 40 CFR 63.467 and 63.468 (f-g), were inapplicable to batch cold cleaning machines, our proposed methodology may not be suitable for all batch cold cleaning machines and requested flexibility in calculating emissions so long as the alternate methodology was scientifically sound and documented. *Response:* In this final rule, we are finalizing as proposed the use of Equation 1 (and Equation 9) to calculate the MC equivalent for implementing the 60,000 kg/yr emission limit or the 100,000 kg/yr emission limit. EPA believes this methodology will facilitate the use of an annual emissions limit for multiple HAPs and allow flexibility in reducing the facility-wide emissions to meet this emissions limit. For cold batch cleaning machines at area sources, the requirements in the final rule do not apply. 3. Use of CalEPA or OPPTS URE for Implementation of the Emission Limit *Comment:* Some commenters that use large halogenated solvent cleaning machines recommended that EPA not promulgate either Option 1 or 2 of the proposed rule, but rather defer promulgation of a final rule until completion of the IRIS re-evaluations of the URE for PCE. One commenter believed that EPA included two different facility-wide annual emission limits for PCE because the IRIS URE was not available and will not be available before 2008. The commenter supported the use of CalEPA URE because it was clearly more health protective and more appropriate than the OPPTS URE value. One commenter stated several reasons why EPA should use the CalEPA URE:
(1)EPA's Air Toxics Risk Assessment Reference Library recommended the use of the CalEPA URE for PCE,
(2)the EPA Office of Air Quality Planning and Standards (OAQPS) recommended the use of the CalEPA URE in situations in which there are no IRIS data available (see EPA's “Prioritization of Data Sources for Chronic Exposure” Web site), and
(3)OAQPS used the CalEPA URE for PCE when conducting the 1999 risk assessment for the National-Scale Air Toxics Assessment. They believed that EPA has an established precedent for use of the CalEPA URE and recommended that it be used for this residual risk standard as well. Three commenters, one identifying itself as operating two continuous web cleaning lines in the world's largest integrated production of aluminum and aluminum semi-fabricated products stated that the two PCE UREs differ by a factor of ten and that EPA's selection of the applicable URE would obviously have a significant impact on control options available to their facility. They expressed concern that EPA would finalize an emissions limit by selecting an inappropriate URE and prior to completion of the IRIS reassessment for PCE. According to the commenter, the fact that the final IRIS URE “may be different from both the CalEPA and OPPTS values”, means that inappropriate or unnecessary emission reduction strategies could be required as a result of EPA's promulgating the wrong PCE facility-wide limit in a final rule. Another commenter suggested that EPA delay promulgation of this final rule until completion of IRIS assessments for PCE and TCE. One commenter stated that while EPA referenced both the OPPTS and the CalEPA UREs, there was little or no mention made of other URE studies conducted for PCE which would potentially indicate a different URE. The commenter stated the same is believed to be true regarding the URE for TCE. *Response:* EPA has explained that when a particular chemical does not have a cancer potency value in IRIS, we have established a prioritization process for assessing other health assessment information (as described in our “Residual Risk Report to Congress” on pages 56 through 58). This hierarchy includes peer reviewed cancer potency values from EPA as well as from other agencies that conduct chemical carcinogenicity assessments such as CalEPA. See also our response to comments on this issue in the final Coke Oven Batteries NESHAP (70 FR 19998-20000, (April 15, 2005)). Because we have not yet issued a final IRIS health assessment for PCE, we are using the CalEPA unit risk estimate
(URE)of 5.9 X 10 -6 (ug/m 3 ) -1 to implement the emission limit for PCE in this final rule. See section III.D. of this Preamble for further discussion of our decision to use the CalEPA cancer URE. We also have the authority to revisit (and revise, if necessary) any rulemaking if sufficient evidence becomes available that changes within the affected industry or significant improvements to the underlying science suggest that the public is exposed to significantly more or less risk than estimated in the risk assessment prepared for this rulemaking (See CAA section 301). See also Ethylene Oxide Emissions Standards for Sterilization Facilities Residual Risk Rules (71 FR 17712, 17715, (April 7, 2006). In particular, it may become necessary at some time in the future to revise the facility emission limits if the pending IRIS assessments result in significant changes to the UREs for PCE, TCE, or MC. Additionally, while we have chosen to use the CalEPA URE for PCE for implementing this rule, this should not be interpreted as a precedent for all future rules. As was stated earlier, in the dry cleaning residual risk rulemaking (71 FR 42723) and in this rulemaking, we used both the CalEPA and OPPTS values to characterize the risk. When there is uncertainty, it is EPA's preference to provide a range of values. However, for the purposes of this rulemaking, a single value was needed to implement the facility emission limits. EPA's choice of the CalEPA value does not mean that this is the only value to be considered while the EPA IRIS assessment is pending. 4. Compliance Deadline *Comment:* The majority of facilities that use halogenated solvent cleaning machines suggested that EPA should allow at least three years for existing sources to comply with the new requirements. Two commenters contended that EPA should be consistent with the HON rule 5 and provide affected facilities three years after the effective date of the promulgated standard to comply. Another commenter stated that the narrow tubing manufacturers could not comply with the proposed compliance period because compliance would require between one and two years to evaluate non-regulated solvents and an additional two to three years to obtain FDA and air permit approvals and implement the necessary equipment modifications. All commenters stated that sources subject to this new rule would need time to evaluate their compliance options; conduct feasibility testing (for solvent substitution) to ensure they can still achieve customer specifications; and design, build, and/or install any equipment or facility modifications potentially required. They stated that our proposed two year compliance deadline would be insufficient time for the regulated sources to comply. Two commenters stated that the proposed two year compliance time frame was not sufficient time for the installation of vacuum-to-vacuum machines. The commenters stated that even if the technology existed, that in order to meet the proposed two year compliance deadline, they would be required to take the following measures:
(1)Conduct initial research and development effort to determine a control strategy;
(2)perform a pilot study using the selected control strategy;
(3)demonstrate to their customers that the resulting product meets contract specifications;
(4)get acceptance by their customers that the change meets contract specifications;
(5)design engineering work to develop the selected equipment and apply for air pollution control and other permits;
(6)obtain permits to install the selected equipment;
(7)order the equipment;
(8)fabricate the equipment;
(9)prepare the shop floor for installation of equipment;
(10)receive and install the equipment; and
(11)place the equipment in operation. 5 National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry, (71 FR 76603) (December 21, 2006)). Three other commenters believed that the proposed two years compliance schedule did not provide sufficient time for the affected facilities to fully assess the impacts and develop approved alternatives. The commenters requested an extension of the compliance period. They stated that EPA has authority to allow up to three years for affected facilities to comply and that permitting authorities have authority to grant an additional one year for compliance purposes, under CAA section 112(i). A large military depot maintenance facility commented that the proposed compliance time allowed in the proposed rule was inadequate. They also agreed with the Preamble discussions as to whether EPA could allow up to three years for existing sources to comply with the proposed limits. The commenter recommended that EPA allow a three-year compliance deadline. Two commenters supported EPA's proposed two-year compliance deadline. One of the commenters, however, pointed out that existing solvent cleaning machines could receive a one year extension of time from permitting authorities. The commenter believed that the Congressional intent behind the compliance deadlines in CAA section 112(f) was to insure an expedited compliance schedule (90 days with a possible two-year extension) for controlling emissions from facilities that result in unacceptable risk levels. Two States provided comments supporting the proposed two year compliance deadline and one commenter advocated a 90-day compliance period. *Response:* In this final rule, in accordance with CAA section 112(i)(3), EPA is promulgating a three-year compliance deadline from the effective date of this rule for all the existing affected sources. As explained in Section III.C. of the Preamble, we believe that CAA section 112(i) is the controlling provision addressing compliance deadlines for existing sources with regard to standards promulgated under CAA sections 112(d)(6) and (f)(2). EPA believes this will give owners or operators of solvent cleaning machines the necessary time to evaluate technologies for controlling emissions and possible alternatives to halogenated HAP solvent cleaning. *Comment:* One commenter stated that proposed § 63.460(i) would allow sources that only have existing halogenated solvent cleaning machines two years to comply, but if they construct or reconstruct a single machine after August 17, 2006, they would lose the two-year compliance period. The commenter recommended that any facility that has existing halogenated solvent cleaning machines and that exceeds the proposed facility wide emission limits should be allowed two years from the date of the final rule to comply with the standard, even if one or more halogenated solvent cleaning machines are constructed or reconstructed after August 17, 2006. Another commenter stated that if the Agency finalized the proposed rule, the compliance schedule should be amended to
(1)Require new facilities constructed after the date of promulgation to be in compliance upon startup;
(2)consider new facilities constructed prior to the date of promulgation to be existing facilities;
(3)allow existing degreasing facilities that installed new equipment after the date of proposal, but prior to the date of promulgation, ten years to come into compliance with any new requirements consistent with CAA section 112(i)(7), and
(4)allow the maximum amount of time possible for existing Halogenated Solvent Cleaning facilities to come into compliance. This commenter alluded to a three-year timeframe. The commenter cited one example of where the installation of new equipment at an existing facility would require additional or redesigned floor space and thus would require additional time for compliance. *Response:* As stated in the earlier response, and in Section III.C. of this Preamble, we believe that it is reasonable to conclude that CAA section 112(i) is the controlling provision addressing compliance deadlines for existing sources with regard to standards promulgated under CAA section 112(d)(6) and 112(f)(2). Thus, in this final rule, in accordance with CAA section 112(i)(3), EPA is promulgating a three-year compliance deadline from the effective date of this rule for existing sources. Further, for purposes of today's rule, existing sources are affected facilities (as defined in § 63.461) on which construction or reconstruction began on or before August 17, 2006. New sources are affected facilities that commence construction or reconstruction after August 17, 2006. This is consistent with CAA Section 112(i)(1)-(3). Additionally, “construction” and “reconstruction,” are defined at 40 CFR 63.2. However, changes to the emission controls at a facility made to comply with existing source standards in today's rule do not trigger the reconstruction threshold. 5. Applicability of Control Requirements *Comment:* One commenter that uses continuous web cleaning machines stated that it had installed two carbon adsorption devices
(CAD)to address the TCE reductions required by the 1994 NESHAP. According to the commenter, even an upgrade of the systems would likely not enable the facilities to achieve either proposed emissions limit. The commenter suggested that for facilities that use continuous web cleaning machines, EPA should evaluate a range of emission reduction limits. The commenter stated that this method would have been consistent with the alternative standards set for the continuous web cleaning machines by the 1994 NESHAP. *Response:* In light of this and similar comments by the aerospace and narrow tubing industries, EPA issued a NODA to gather specific data on the technical feasibility and costs of complying with the proposed emission limits, if feasible, and the period of time required to comply with the proposed emissions limit (71 FR 75184, (December 14, 2006)). EPA has re-evaluated the technical feasibility, costs and other factors that relate to facilities operating continuous web cleaning machines. Consequently, in this final rule, we are not promulgating any facility-wide emission limits for facilities that operate continuous web cleaning machines, facilities that operate halogenated solvent cleaning machines for the aerospace manufacturing and maintenance industry, and the narrow tubing manufacturing industry. *Comment:* Numerous commenters from both the narrow tubing manufacturing industry that use MC, PCE and TCE, and airline maintenance facilities and aerospace industry that use PCE stated that switching to TCE or MC would be an unsuitable compliance option. They stated that facilities have procedural requirements for the higher vapor temperature of PCE and that TCE and MC's vapor temperature is inadequate for proper cleaning. The commenters stated that many original equipment manufacturers have not approved the use of alternative degreasing solvents. The commenters also stated that changing solvents involved a rigorous approval process by the original equipment manufacturers and the Federal Aviation Administration
(FAA)in order to ensure that safety and quality criteria are met. The commenters stated that such an approval process could take more than two years. The commenter also stated that EPA's proposed retrofit options for freeboard ratios, working mode covers and freeboard refrigeration devices are not expected to be sufficient to enable the facility to comply with the proposed facility-wide emission limits of the proposed rule. The commenter also stated that there are few manufacturers of vacuum-to-vacuum degreasing machines and they were not aware of this technology effectively cleaning parts of specific types and sizes. According to the commenter, similar facilities that installed the technology incurred costs of over $1 million with new annualized costs of approximately $80,000 per year. The commenter was concerned that compliance with the proposed standards would be achieved by using expensive technology, that has high capital costs and operating costs and that may not be proven effective or reliable for the operations of subject facilities. *Response:* In response to this comment and certain comments discussed below, EPA issued a NODA (71 FR 75184, (December 14, 2006)) to gather more information pertinent to the halogenated solvent machines used by the aerospace industry, narrow tubing manufacturing industry, and the facilities that use continuous web cleaning machines. Responses to the NODA provided significant data and information that have led EPA to determine that it is both technologically infeasible and not cost effective for these industries to implement any further emission controls or requirements. Consequently, as stated in Section III.A.3., of the Preamble, we are not promulgating any facility-wide emission limits for halogenated solvent cleaning machines used by the aerospace manufacturing and maintenance industry, the narrow tubing manufacturing industry and for continuous web cleaning machines. *Comment:* Two commenters associated with the aerospace industry stated that the FAA, Food and Drug Administration
(FDA)and the Nuclear Regulatory Commission
(NRC)guidelines for safety and quality control often dictate the types of solvents and materials that may be used in aerospace operations. According to the commenters, solvent cleaning criteria determined the quality of adhesion between aircraft assemblies and components and the various coatings, primers, sealants, and adhesives later applied to their surfaces, and improper degreasing could cause loss of coating adhesion and ultimate failure of specific aircraft component parts. The commenters also stated that they had explored solvent alternatives such as aqueous cleaners, and had encountered incompatibilities with FAA guidelines, such as inability to meet the degree of cleaning required, incompatibility of the parts being cleaned with the cleaning solution, longer required cleaning time, and problems associated with moisture left on parts being cleaned. The commenter stated that these regulatory and product specifications frequently dictated or otherwise limited aerospace cleaning options to PCE or TCE. However, some aerospace facilities maintain their PCE cleaning capacity because certain, very specific aerospace parts cannot be processed with MC or alternative solvents. *Response:* In response to this comment, as earlier explained, EPA issued a NODA (71 FR 75184, (December 14, 2006)) to gather more information pertinent to the halogenated solvents cleaning machines used by the aerospace industry, narrow tubing manufacturing industry, and the facilities that use continuous web cleaning machines. Responses to the NODA provided significant information that has led EPA to conclude that it is both technologically infeasible and not cost effective for the above-noted facilities to implement any further emission controls or requirements. (See Section III.A.3. of the Preamble on costs of compliance). EPA is also persuaded that some halogenated solvent cleaning processes for the aerospace and narrow tubing industry are controlled by FAA, FDA, the NRC guidelines, and from protocols of original equipment manufacturers. Therefore, EPA is concluding in this final rule that solvent switching from PCE or TCE to MC may not be a viable option in some instances for the aerospace industry. Consequently, as stated earlier in Section III.A.3., of this Preamble, EPA is not promulgating facility-wide emission limits for halogenated solvent machines used by the aerospace manufacturing and maintenance industry, the narrow tubing manufacturing industry and for continuous web cleaning machines. *Comment:* Commenters from the narrow tube manufacturing industry stated that they use “one of a kind” machines in their degreasing operations. They described these machines as very large, some with dimensions approaching 110 ft. long by 10 ft. deep and 42 inches wide, with a capacity of 7,000 gallons of solvent. According to the commenters, these machines also heat the solvent, usually TCE, to its boiling point while condenser coils prevent evaporation by forming a cold air blanket over the cleaning machine in order to limit emissions. In addition, they explained that these machines are covered when not in use. They also stated that the installation of vacuum-to-vacuum cleaning machines is not a feasible option because of their products' sizes and the lack of engineering information to establish whether machines of such size can be engineered and produced. They stated that EPA's proposed requirements would require them to design, obtain permits, develop and install these systems within two years. *Response:* In response to this comment, as earlier explained, we issued a NODA (71 FR 75184, (December 14, 2006)) to gather more information pertinent to the halogenated solvent cleaning machines used by the aerospace industry, narrow tubing manufacturing industry, and the facilities using continuous web cleaning machines. Responses to the NODA provided significant information that has led EPA to determine that it is both technologically infeasible and not cost effective for the above-noted facilities to implement any further emission controls or requirements. EPA is also persuaded that it may be quite difficult for the above-noted industries to reduce emissions through chemical or physical means and technology applications to the levels required by our final promulgated emissions limits. Accordingly, due to the costs associated with compliance, technical feasibility, and other factors, EPA has determined that the current MACT requirements provided for the narrow tubing manufacturing industry both reduce HAP emissions to levels that both pose acceptable risk and protect public health with an ample margin of safety. As stated earlier in Section III.A.3., of the Preamble, EPA is not promulgating facility-wide emission limits for halogenated solvent cleaning machines used by the narrow tubing industries. *Comment:* Two commenters stated that switching from PCE and/or TCE to MC (indicated as being lower risk) as a compliance alternative under the proposed revisions would likely result in an increased danger to public health and, more specifically, potentially increase the danger from employee exposure to MC emissions. The commenter stated that because employee exposure to MC is specifically regulated by the Occupational Safety and Health Administration (OSHA), switching to MC would be an error. According to the commenter, this is because applicable OSHA regulations would limit and/or restrict MC and would lead to increased employer costs, a fact the commenter believed EPA did not consider. One commenter stated that some halogenated solvent cleaning machines may have the potential for undetected fugitive emissions. The commenter added that the necessary monitoring for adequate employee protection from overexposure to MC would be far more expensive, more extensive, and more difficult to implement than monitoring for TCE. *Response:* Before proposal, EPA was aware of the requirements of the Occupational Health and Safety Administration concerning worker safety when MC is used. 29 CFR part 1910, which are the applicable OSHA regulations, require employers to make an initial determination of each employee's exposure to MC. If the employer determines that employees are exposed below the action level, employers are required to make a record of the determination. Conversely, if the employees are exposed to MC above the action levels, employers are required to perform exposure monitoring. In addition, EPA did not consider any costs associated with MC monitoring at proposal. EPA believes, however, that a facility would not incur costs if MC emissions do not exceed the OSHA levels. If a facility experiences worker exposure of MC emissions over the OSHA level, the facility incurs costs to develop a control plan for fugitive emissions and possibly implement an employee medical monitoring plan. To account for the possibility of increased costs, we reduced the number of units assumed to use solvent switching. 6. Costs Associated With Compliance *Comment:* Seven commenters, from the aerospace and narrow tube manufacturing sectors, stated that EPA had underestimated its cost basis for vacuum-to-vacuum technology in the proposed rule. One commenter stated that because EPA's estimation used the costs for small halogenated solvent cleaning machines and applied the credit for cost reduction from recovered solvent to the large halogenated solvent cleaning machines with large amounts of recovered solvent, the estimate erroneously yielded a false return on investment. The commenter stated that discussions with manufacturers of available vacuum-to-vacuum units suggested costs approximately five times higher than the assumptions used by EPA for each unit, and this was assuming that the manufacturers could develop scaled-up units suitable for narrow tubing manufacturers. The commenter stated that because the larger size of their products would require construction of the new unit while maintaining operation, facilities would need to undergo building expansion. The commenter anticipated that installation costs, including building and required utilities and infrastructure, would likely be approximately three times the equipment cost. According to the commenter, assuming the technology was successful, EPA's capital cost basis was approximately fifteen times below its likely cost range. The commenter further stated that EPA's assumption of 97 percent solvent recovery was unlikely with regard to hypothetical future large units that would require storage and movement of solvent between storage tanks, solvent cleaning machines and other ancillary equipment. The commenter concluded that EPA's assumptions of the project payback were unrealistic both for large operations, whose capital cost was underestimated, and for small operations, whose solvent recovery payback would be smaller than the average figures used in the analysis. *Response:* In response to this comment, as explained earlier, EPA issued a NODA (71 FR 75184, (December 14, 2006)) to gather more information on the costs of complying with the proposed standards by the aerospace industry, narrow tubing manufacturing industry, and the facilities that use continuous web cleaning machines. Responses to the NODA provided significant information that has led EPA to determine that it is both technologically infeasible and not cost effective for the above-noted facilities to implement any further emission controls or requirements. As earlier stated, EPA is also persuaded that some solvent cleaning processes for the aerospace and narrow tubing industry are controlled by protocols from the FAA, FDA, NRC and from protocols to satisfy original equipment manufacturers' specifications. As earlier stated, EPA has also concluded in this final rule that solvent switching from PCE or TCE to MC may not be a viable option in some instances for the aerospace industry. As also explained earlier in Section III.B. of the Preamble, EPA has re-analyzed the cost assumptions made at proposal for the aerospace industry separate from the halogenated solvent cleaning machines that are covered by this final rule, and has determined that due to costs, technical feasibility, and other factors requiring additional controls, would not be feasible at this time. Consequently, as stated earlier in section III.A.3 of the Preamble, we are not promulgating facility-wide emission limits for halogenated solvent cleaning machines used by the narrow tubing and aerospace manufacturing and maintenance industries. *Comment:* Commenters that use continuous web cleaning machines stated that EPA's analysis of the technology and cost impacts of the two proposed emission limits failed to consider the impacts on continuous web machines. The commenters stated that while EPA identified numerous compliance options, solvent switching from PCE to TCE or MC would be the sole compliance option for continuous web cleaning machines. The commenters further stated that EPA was correct to conclude that neither retrofits nor machine replacement would be an available compliance option for continuous web cleaners; however, the commenters stated that “EPA should not have concluded that solvent switching would be an available option for continuous web cleaners.” The commenters further stated that switching from TCE to MC is not an available option because “MC reacts with chemically active metals such as aluminum.” The commenters also stated that MC is incompatible with some of the gaskets and seals in pumps, ports and manifold systems. The commenters added that MC is less stable as a continuous web cleaning solvent and would require additional monitoring and probably additional stabilization control systems. Additionally, the commenters stated that MC is not readily adsorbed by the carbon in carbon adsorption devices and, as such, solvent switching would require reconfiguration and possibly rebuilding of the carbon adsorption devices. According to the commenters, MC requires longer dwell time in the carbon beds, which would in turn require a greater carbon surface area and larger carbon filtration systems. The commenters also stated that quantities of TCE would react with MC and that facilities would need to conduct a complete purging of systems in order to prevent cross contamination. The commenters further stated that such purging would include the removal of significant production line components, which would lead to increased compliance costs. The commenters also stated that EPA estimated a 29 percent increase in solvent consumption if switching from TCE to MC. The commenters, however, expected much higher increases. The commenters explained that because steel that is placed in cleaning machines is slightly heated above ambient temperature, any slight temperature elevation would cause MC to vaporize more readily than TCE. The commenters claimed that increases in solvent consumption rate would ultimately create elevated vapor concentrations in the carbon adsorption device thereby making recovery more difficult. The commenters further claimed that even though MC is cheaper per unit volume, more MC would be required to achieve the same level of cleaning. The commenters also maintained that add-on control equipment, retrofits and machine replacement technologies identified in the proposed rule are for the typical halogenated solvent cleaning machines that were subject to the 1994 NESHAP, and not continuous web cleaning machines or systems. The commenters stated that modifications such as modifying freeboard ratios, adding working mode covers, or retrofitting freeboard refrigeration devices are inapplicable because no freeboard exists in continuous web cleaning machines, which are enclosed, with the exception of entrance and exit points during normal operations. The commenters further stated that vacuum-to-vacuum machines are only appropriate for batch cleaners. Because of these technical issues, the commenters stated that EPA did not evaluate the costs and technological feasibility of the facility-wide emission limits for the continuous web cleaning machines. *Response:* In response to this comment, as stated earlier, EPA issued a NODA (71 FR 75184, (December 14, 2006)) to gather more information on the costs of complying with the proposed standards by the aerospace industry, narrow tubing manufacturing industry, and the facilities using continuous web cleaning machines. As also stated earlier, responses to the NODA-provided significant information has led EPA to re-evaluate costs of installing CADs and vacuum-to-vacuum machines. EPA has determined that compliance by continuous web cleaning machines with either the proposed 40,000 kg/yr limit or the 60,000 kg/yr MC equivalent limit would not be cost effective and either limit may be technically infeasible in some instances. Consequently, as stated in Section III.A.3 of this Preamble, EPA is not requiring continuous web cleaning machines to comply with the facility-wide emission limits we are promulgating for this final rule. EPA is concluding that the current level of control by the existing NESHAP both reduces HAP emissions to levels that present an acceptable risk and provides an ample margin of safety to protect public health and prevent adverse environmental effects. *Comment:* One commenter, an industry association representing producers and users of halogenated solvents, indicated that MC is not compatible with some substrates because of its aggressive nature. In addition, the commenter stated that MC's low boiling point shortens the effective cleaning time and makes it ineffective for light-gauge metals where incomplete rinsing action may cause staining. According to the commenter, the low boiling point of MC also makes it less effective on stubborn soils, including high-melting point waxes and pitches and grossly contaminated parts. The commenter stated that PCE's higher boiling point makes it ideal for these applications. According to the commenter, PCE is also a popular choice for closed-loop equipment, where PCE's inherent stability reduces the possibility of hydrolysis. The commenter also stated that while MC has the lowest vapor loss rate from an idling halogenated solvent cleaning machine, its low vapor density makes it the most difficult to control in a working degreaser where air movements generally increase losses. The commenter also stated that MC has the lowest vapor recovery rates in carbon adsorption systems used to collect solvents from many web and in-line machines. In addition, the commenter stated that MC users are subject to a comprehensive OSHA standard that requires a medical surveillance and removal program not required for PCE and TCE users. *Response:* EPA recognizes that there are chemical and physical limitations when considering solvent switching as a method to reduce emissions in compliance with both the proposed and final facility-wide emission limits we are promulgating in this final rule. In the proposed rule, EPA assumed 30 percent of facilities would switch to a less potent solvent; however, significant comments have led us to re-evaluate these assumptions. Consequently, with regard to our solvent switching analysis, for this final rule, EPA has reduced the number of units for which solvent switching is an option from 30 percent to 15 percent. The cost analysis in Section III.B. of the Preamble to this final rule reflects this change. 7. General Comments *Comment:* A number of commenters stated that the 1999 NEI data did not reflect current emission levels and were not a sufficient basis for assessing technical or economic feasibility. Some believed that the 1999 NEI database was obsolete and provided an incomplete emission database when used as a primary source of data for halogenated solvent emissions. The commenter stated that the industry had changed since 1999 due to local, regional, and State regulatory pressures. The commenter indicated that the most significant change since 1999 was the phase out of TCA manufacture for emissive use, which effectively eliminated its use for solvent cleaning. The commenters pointed out that EPA had access to the 2002 NEI database and encouraged EPA to re-evaluate the risk assessment using the updated database. *Response:* In response to public comments we received on the August 17, 2006 rule proposal, we reassessed the risks associated with the halogenated solvent source category using the 2002 NEI inventory. The proposal was based on the 1999 inventory. These data were not available at the time the proposal was being developed. *Comment:* One commenter stated that EPA established a MACT standard for the continuous web subcategory in December 1999 and therefore, Section 112(f) risk analysis for the subcategory is not required until December 2007. The commenter stated that the continuous web subcategory was established five years after the standard for the other halogenated solvent machines. According to the commenter EPA's proposed rule fails to recognize that under this requirement EPA has eight years from December 3, 1999 (or by December 3, 2007) to conduct the residual risk evaluation for the continuous web subcategory. *Response:* Section 112(f)(2)(A) requires the Administrator to promulgate applicable standards “within 8 years after promulgation of standards,” under section 112(d). We read this provision as allowing for our promulgation of standards, under section 112(f), within 8 years of the effective date of section 112(d) requirements, rather than within 8 years of the compliance date of the section 112(d) requirements. (See for example, section 112(f)(3) (“the Administrator shall establish a compliance date or dates * * * which shall provide for compliance as expeditiously as practicable but in no event later than three years *after the effective date of such standard* .” (Emphasis added)). The effective date of the Halogenated Solvent Cleaning NESHAP is December 2, 1994, and not December 3, 1999, as suggested by the commenter, although we subsequently made certain clarifications and amendments to these requirements. Our obligation to promulgate residual risk standards for this source category is therefore past, and we are now operating under a consent decree that required our promulgation of today's rule on or before December 15, 2006, subsequently extended to April 16, 2007. We also believe that there is nothing in the Act that precludes our completion of the residual risk review prior to 8 years after promulgation of section 112(d) standards. *Comment:* One commenter stated that EPA had used a very simplistic model to perform the emissions evaluations which may be acceptable for an initial screening, but that the Agency had failed to provide information to either validate its approach or any indication as to whether the presented risk levels exceed the upper bound limit of 100-in-a-million using the correct facility information such as stack parameters. The commenter requested that EPA review the seven facilities with an estimated cancer risk greater than 100-in-a-million to determine whether the use of average stack parameters was appropriate and to revise the proposed rule accordingly. The commenter also requested that EPA add an option allowing facilities to conduct site-specific emission modeling to determine if a facility meets or exceeds the allowable MIR, which would depend on which option EPA finalized. Subsequently, EPA could use this modeling to set a site-specific facility limit that is higher than either proposed options. *Response:* The choice of the proposed emission limits and the final emission limit is based on the level of risk reduced, cost and technical feasibility to achieve a particular emission limit. While we acknowledge the uncertainty inherent in the NEI data used, its effect on risk is not the only consideration for the proposed emission limits. In spite of the fact that perhaps 50 percent of the release parameters in the 1999 NEI database may be defaults, our understanding of this source category and our best engineering judgment suggested the data were reasonable to use in our risk assessment, ( *e.g.* , the range of stack heights was appropriate for these sources). We also acknowledged that while our risk assessment was likely to overestimate risks, this overestimate was not likely to be large because of the many variables and assumptions used in the assessment that would yield lower estimated risk levels, ( *e.g.* , the use of a probabilistic method for evaluating population risks). Therefore, a focused evaluation of the release parameters of a few facilities at the upper end of the risk spectrum, while possibly having some effect on their individual risk levels, is not likely to affect our overall conclusions about the level of risk from the entire source category. Concerning the site specific emission modeling, EPA did not incorporate in the proposed rule an approach that would allow site specific modeling. Instead, EPA assessed risk on a source category basis. EPA also did not incorporate in the proposed rule an approach a low-risk alternative for compliance. V. Responses to Significant Comments on EPA's December 14, 2006, Notice of Data Availability
(NODA)A. Emission Limits *Comment:* Two commenters from the aerospace industry submitted available compliance options for the 40,000 kg/yr MC equivalent emission limit. One option involved switching from HAP chlorinated solvents to n-propyl bromide. Another option involved the facilities switching to an alkaline degreasing system with ultrasonic wash tanks. One aerospace facility, which had a large operation with multiple halogenated solvent cleaning machines, submitted very detailed descriptions of each machine, the options available and the associated costs of implementation. For their multiple machines, they presented twelve emissions reduction options, five of which reduced their emissions to below the 40,000 kg/yr MC equivalent limit. The compliance options include a combination of machine covers, extension areas, additional drain time for parts, installing larger or additional carbon absorption systems and switching some current machines with vacuum-to-vacuum machines. The commenter indicated that completing these compliance options would take six years or more. *Response:* EPA recognizes that a few small aerospace facilities may operate with emissions at or below both the proposed and final promulgated emission limits. In the proposal, EPA assumed solvent switching and other technologies could be applied at a reasonable cost. EPA has discovered, however, that this industry is bound to the use of chlorinated solvents and solvent switching is not a viable option for compliance. As earlier stated, EPA also recognized that the affected facilities cannot undertake all the necessary modifications within the three-year compliance period. EPA also notes that all these considerations are true for the final promulgated 60,000 kg/yr emission limit. *Comment:* Two commenters that use continuous web cleaning machines maintained that they could not comply with either of the proposed emission limits. Both facilities stated that they had installed carbon absorption devices, which operated at about 99 percent control efficiency, but that most of their emissions could not be captured by these devices because of the nature of continuous web cleaning machines. According to the commenters, fugitive emissions occur in different locations along production lines and along the cleaning process. The commenters provided some possible additions to their cleaning systems that would achieve additional reductions, but they did not provide information on the emission levels they could attain. The commenters stated that there are limited available technologies to capture emissions and that it would be technically difficult for them to capture a significant portion of their emissions. The commenters also maintained that attaining a degree of control rather than meeting an emission limit is a more appropriate measure of their emission reduction capability. *Response:* EPA recognizes that continuous web machines are designed differently from general halogenated solvent cleaning machines, *i.e.* , batch and in-line cleaning machines. As explained in earlier responses, we have determined that it is both technologically infeasible and not cost effective for continuous web cleaning machines to comply with our final promulgated emissions limit. As also stated in Section III.A.3. of the preamble, in this final rule, we are not setting any emissions limits for facilities that use continuous web cleaners. As also explained earlier, we are concluding that the current level of control for continuous web cleaning machines called for by the existing NESHAP reduces HAP emissions to levels that present an acceptable risk, protects public health with an ample margin of safety, and prevents adverse environmental effects. *Comment:* We received significant comments from five narrow tubing manufacturers. These commenters presented very significant and compelling reasons as to why they could not meet the proposed emission limits. The commenters indicated that carbon absorption systems were the only available feasible control technology but that installation would result in only a maximum of 25 percent overall emissions reduction. The commenters stated that vacuum-to-vacuum machines have not been engineered or tested to the sizes that are required for their specific industrial processes. They claimed that such large vacuum-to-vacuum machines are not available from machine manufacturers. One commenter stated that after five years of research and design they may be able to achieve the 100,000 kg/yr MC equivalent emission limit. *Response:* EPA is persuaded that narrow tube manufacturing facilities are the most technically challenged in reducing emissions to the levels called for by either our proposed or final promulgated 60,000 kg/yr emission limit. EPA has also determined that this industry is bound to the use of chlorinated solvents and solvent switching is not a viable option for compliance. Furthermore, EPA is persuaded that vacuum-to-vacuum technology has not developed to a point where this industry can install these machines into their processes with certainty of performance. Therefore, EPA has concluded in this rule that this industry could only achieve both the proposed and final promulgated emissions limits by implementing newly engineered and untested technology. Consequently, as explained earlier in Section III.A.3. of the Preamble, EPA is adopting no changes to the 1994 NESHAP for the halogenated solvent cleaning machines used by the narrow tubing industry, and we are concluding that the current level of control by the existing NESHAP reduces HAP emissions to levels that present an acceptable risk, protects public health with an ample margin of safety, and prevents adverse environmental effects. B. Cost Impacts *Comment:* One aerospace facility maintained that the application of various technologies would result in 85 percent overall emissions reduction at capital costs of between $1.1 and $1.7 million, for this particular facility, but that it would need considerable more time beyond the proposed two years compliance period to implement the proposed emissions limits. *Response:* As a result of the comments on compliance costs, EPA re-evaluated the ability of the aerospace industry to feasibly implement in a cost effective manner other emission limits we discussed at proposal but did not propose (ranging from 60,000 kg/yr to 250,000 kg/yr MC equivalent emission limits). We relied on commenters' submissions to assist us in revising our cost estimates for complying with these emissions limits by the aerospace industry and also relied on it in part in applying cost assumptions to the remainder of the other industries that use halogenated solvent cleaning machines. The results indicated that implementing additional emission control levels, (ranging from 60,000 kg/yr to 250,000 kg/yr MC equivalent emission limits), within a three-year compliance period would result in total capital costs of over $9 million with a cost effectiveness of about $2,000/ton of solvent used. Furthermore, EPA calculated the total annualized costs for each cancer case avoided would be more than $17.5 million for the 100,000 kg/yr MC equivalent emission limit. Therefore, EPA is concluding in this final rule that the NESHAP requirements for aerospace manufacturing and maintenance degreasing machines, provide an ample margin of safety and that the requirements set forth in this final rule are not applicable to halogenated solvent cleaning machines that are associated with the aerospace manufacturing and maintenance industry and facilities. Under this final rule, the 1994 NESHAP requirements remain applicable to all the halogenated solvent cleaning machines associated with the aerospace manufacturing and maintenance facilities. *Comment:* Commenters that use continuous web cleaning machines projected the capital costs of complying with the proposed emission limits (through “additions” to their production lines) at about $1,000,000. *Response:* EPA recognizes the unique character of continuous web cleaning machines and is persuaded that technical emission control choices are limited to CADs to attain significant emission reductions. EPA has assumed that CADs may only achieve a 10 to 30 percent overall reductions in facility-wide emissions. Therefore, CAD alone would be insufficient for purposes of complying with the final promulgated emissions limit. We have taken this into consideration in promulgating the final rule. *Comment:* The narrow tube manufacturing industry calculated their costs of compliance with the proposed emission limits on the basis of installing CAD and researching and designing new and untested vacuum-to-vacuum technology. They indicated that capital costs for CAD installation ranged from $200,000 to $1,800,000. They also indicated that while this option is technically feasible it would only achieve 10 to 30 percent maximum in overall facility emissions reductions. The commenters further indicated that compliance with the proposed limits would require engineering new technology or relying on vacuum-to-vacuum machines, but that after conferring with vacuum-to-vacuum machine manufacturers, the cost estimates were more than $4,600,000 in capital costs with about $578,000 for operating costs. One facility, which produces specialized narrow tubing for medical applications, projected costs for vacuum-to-vacuum machines installation at $10.5 million and estimated that it would require between five and six years for the evaluation of the machines' cleaning performance. The commenters also stated that end-loading machines would require additional building space for loading and unloading tube bundles with lengths of 80 to 110 feet. *Response:* EPA is persuaded that the narrow tubing industry is confronted with the biggest technological hurdle in achieving emissions reductions for purposes of achieving either the proposed or final promulgated emission limits. EPA is persuaded that emission control choices, for the narrow tubing industry, are limited to CAD, in order to attain the most significant emission reductions within the three-year compliance time frame. EPA is also persuaded that CAD may only achieve a 10 to 30 percent overall reductions in facility-wide emissions. Therefore, we have determined that installation of CAD alone would not control emissions to the level of either the proposed or final promulgated emission limits. We have also taken into consideration the costs for developing technology that will reduce emissions to both the proposed and final promulgated emissions limits. EPA has amended its cost analysis for this group of facilities and has determined that a cost effectiveness of over $3,600/ton, when joined with EPA's estimate of over $87 million in annual costs for each cancer case avoided, is unreasonable. Therefore, EPA is concluding in this final rule that the NESHAP requirements for narrow tube manufacturing provide an ample margin of safety, prevent adverse environmental effects and that the requirements set forth in this final rule will not be applicable to halogenated solvent cleaning machines associated with the narrow tubing manufacturing industry. Under this final rule, the 1994 NESHAP requirements remain applicable to all continuous web and halogenated solvent cleaning machines used by narrow tubing and aerospace manufacturing and maintenance facilities. C. Compliance Schedule *Comment:* Aerospace industries maintained that a five-year minimum compliance period would be necessary to investigate technology and protocol changes in order to comply with the proposed 40,000 kg/yr limit. A commenter from the narrow tubing industry suggested between five and ten years as necessary for them to investigate the probability of applying technology to reduce emissions to a significant amount, to either of the proposed emission limits. The narrow tube manufacturing commenters stated that their machines are unique, indicated the non-availability of feasible emission reductions technology for either proposed emission limits and recommended that EPA allow the industry five to ten years for research and development of specific vacuum-to-vacuum technology for the specific needs of their industry. *Response:* As stated in responses to earlier comments, EPA has considered these comments as significant and after re-evaluating compliance costs, technical feasibility and other factors, is concluding that, for the aerospace manufacturing and maintenance industry, narrow tube manufacturing industry, and facilities using continuous web cleaning machines, the current level of control provided by the existing NESHAP both reduces HAP emissions to levels that present an acceptable risk and provides an ample margin of safety to protect public health. VI. Impacts For sources required to comply with the 60,000 kg/yr MC equivalent emission limit, the national capital costs to reach compliance with the final rule are estimated to be $15,000,000 with annualized cost savings of $1.3 million. The capital costs for individual facilities would range from $15,000 to $800,000 with an average cost of about $200,000. More than 60 percent of the facilities implementing control technology would recognize a cost savings primarily from solvent savings. Capturing and controlling HAP emissions is a pollution prevention approach where emissions reduction translate into less PCE, TCE and MC consumption and reduced operating costs primarily because facilities would need to purchase less solvents. Using the 2002 NEI database, the maximum individual cancer risk is estimated to be reduced from 100-in-1 million to between 20 and 50-in-a-million (using both OPPTS and CalEPA potency values). The rule is expected to reduce cancer incidence from 0.55 cases annually to 0.36 cases annually, a reduction in cancer incidence of 0.19 cases annually. EPA also estimates that to comply with the 100,000 kg/yr MC equivalent emission limit, military depot maintenance facilities are expected to incur $540,000 in capital costs with annualized savings of about $56,000. Using the 2002 NEI database, the maximum individual cancer risk is estimated to be reduced from six-in-a-million to three-in-a-million. The emission limit for military depot maintenance facilities is expected to reduce cancer incidence by 0.002 cases annually. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Executive Order
(EO)12866 gives the Office of Management and Budget
(OMB)the authority to review regulatory actions that are categorized as “significant” under section 3(f) of the EP, *i.e.* , those actions that are likely to result in a rule that may raise novel legal and policy issues arising out of mandates in CAA section 112(f)(2) and 112(d)(6). Accordingly, EPA submitted this action to OMB for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis, which is briefly summarized in Section III.B. of the Preamble, is contained in National Cost Impacts Memorandum. A copy of the analysis is available in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. Owners or operators will continue to keep records and submit required reports to EPA or the delegated State regulatory authority. Notifications, reports, and records are essential in determining compliance and are required, in general, of all sources subject to the 1994 Halogenated Solvent Cleaning NESHAP. Owners or operators subject to the 1994 Halogenated Solvent Cleaning NESHAP continue to maintain records and retain them for at least 5 years following the date of such measurements, reports, and records. Information collection requirements that were promulgated on December 2, 1994 in the Halogenated Solvent Cleaning NESHAP prior to the 2005 proposed amendments, as well the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all owners or operators subject to national emission standards, are documented in EPA ICR No. 1652.05. The Office of Management and Budget
(OMB)has previously approved these information collection requirements contained in the existing regulations 40 CFR part 63 subpart T under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0273, EPA ICR number 1652.05. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 9 and 48 CFR part 15. We have established a public docket for this action, which includes the ICR, under Docket ID number EPA-HQ-OAR-2003-0009, which can be found in *http://www.regulations.gov.* This final decision will not change the burden estimates from those developed and approved in 1994 for the national emission standard. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of the final action on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. As mentioned earlier in this Preamble, facilities across several industries use halogenated solvents to degrease their products, therefore a number of size standards are utilized in this analysis. For the industries represented in this analysis, the employment size standard varies from 500 to 1,500 employees. The annual sales standard is as low as 4 million dollars and as high as 150 million dollars. After considering the economic impacts of this final rule on small entities, we have concluded that this action will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the economic impact of the final rule to affected small entities in the entire halogenated solvent cleaning source category. The final rule is expected to affect 125 ultimate parent entities that will be regulated as major sources. Forty of the parent entities, or approximately one-third, are defined as small according to the SBA small business size standards. None of the small firms has an annualized cost of more than 0.7 percent of sales associated with meeting the requirements for major sources, and 16 of the forty affected small firms are estimated to incur no costs or have cost savings associated with compliance with the final rule. For more information, please consult the economic impact analysis for this rulemaking. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. We have determined that this final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any 1 year. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that the final rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism,” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the affected halogenated solvent cleaning facilities are owned or operated by State or local governments. Thus, Executive Order 13132 does not apply to the final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribe Governments” (65 FR 67249, November 9, 2000), requires us to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final decision. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final decision is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, the Agency believes this action represents reasonable further efforts to mitigate risks to the general public, including effects on children. This conclusion is based on our assessment of the imposed emission limits that would reduce chlorinated solvent impacts on human health associated with exposures to halogenated solvent cleaning operations. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use The final rule is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This final rule will have a negligible impact on energy consumption because about ten percent of entities using halogenated solvent cleaning will have to reduce emissions through a range of activities involving simple process changes to the installation of additional emission control equipment or special low emitting machines to comply. The cost of energy distribution should not be affected by the final rule at all since the standards do not affect energy distribution facilities. We also expect that there would be no impact on the import of foreign energy supplies, and no other adverse outcomes are expected to occur with regards to energy supplies. Further, we have concluded that this final rule is not likely to have any significant adverse energy effects. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This final revision to the 1994 NESHAP for halogenated solvent cleaning do not include requirements for technical standards beyond what the NESHAP requires. Therefore, the requirements of the NTTAA do not apply to this action. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing the final rule amendment and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule amendment in the **Federal Register** . The final rule amendment is not a “major rule” as defined by 5 U.S.C. 804(2). This final rule is effective on May 3, 2007. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements. Dated: April 16, 2007. Stephen L. Johnson, Administrator. For reasons stated in the Preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows: PART 63—[Amended] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart T—[Amended] 2. Section 63.460 is amended by revising paragraphs (c), (d), and
(g)and adding paragraph
(i)to read as follows: § 63.460 Applicability and designation of source.
(c)Except as provided in paragraph
(g)of this section, each solvent cleaning machine subject to this subpart that commenced construction or reconstruction after November 29, 1993 shall achieve compliance with the provisions of this subpart, except for § 63.471, immediately upon start-up or by December 2, 1994, whichever is later.
(d)Except as provided in paragraph
(g)of this section, each solvent cleaning machine subject to this subpart that commenced construction or reconstruction on or before November 29, 1993 shall achieve compliance with the provisions of this subpart, except for § 63.471, no later than December 2, 1997.
(g)Each continuous web cleaning machine subject to this subpart shall achieve compliance with the provisions of this subpart, except for § 63.471, no later than December 2, 1999.
(i)The compliance date for the requirements in § 63.471 depends on the date that construction or reconstruction of the affected facility commences. For purposes of this paragraph, affected facility means all solvent cleaning machines, except solvent cleaning machines used in the manufacture and maintenance of aerospace products, solvent cleaning machines used in the manufacture of narrow tubing, and continuous web cleaning machines, located at a major source that are subject to the facility-wide limits in Table 1 of § 63.471(b)(2), and for area sources, affected facility means all solvent cleaning machines, except cold batch cleaning machines, located at an area source that are subject to the facility-wide limits in Table 1 of § 63.471(b)(2).
(1)Each affected facility that was constructed or reconstructed on or before August 17, 2006, shall be in compliance with the provisions of this subpart no later than May 3, 2010.
(2)Each affected facility that was constructed or reconstructed on or after August 17, 2006, shall be in compliance with the provisions of this subpart on May 3, 2007 or immediately upon startup, whichever is later. 3. Section § 63.471 is added to Subpart T to read as follows: § 63.471 Facility-wide standards.
(a)Each owner or operator of an affected facility shall comply with the requirements specified in this section. For purposes of this section, affected facility means all solvent cleaning machines, except solvent cleaning machines used in the manufacture and maintenance of aerospace products, solvent cleaning machines used in the manufacture of narrow tubing, and continuous web cleaning machines, located at a major source that are subject to the facility-wide limits in paragraph (b)(2) of this section, and for area sources, affected facility means all solvent cleaning machines, except cold batch cleaning machines, located at an area source that are subject to the facility-wide limits in paragraph (b)(2) of this section. (b)(1) Each owner or operator of an affected facility must maintain a log of solvent additions and deletions for each solvent cleaning machine.
(2)Each owner or operator of an affected facility must ensure that the total emissions of perchloroethylene (PCE), trichloroethylene
(TCE)and methylene chloride
(MC)used at the affected facility are equal to or less than the applicable facility-wide 12-month rolling total emission limit presented in Table 1 of this section as determined using the procedures in paragraph
(c)of this section. Table 1.—Facility-wide Emission Limits for Facilities With Solvent Cleaning Machines Solvents emitted Facility-wide annual emission limits in kg—for general population degreasing machines Facility-wide annual emission limit in kg for military depot maintenance facilities PCE only a 4,800 8,000 TCE only 14,100 23,500 MC only 60,000 100,000 Multiple solvents—Calculate the MC-weighted emissions using equation 1 60,000 100,000 a PCE emission limit calculated using CalEPA URE. Note: In the equation, the facility emissions of PCE and TCE are weighted according to their carcinogenic potency relative to that of MC. The value of A is 12.5. The value for B is 4.25. ER03MY07.015 Where: WE = Weighted 12-month rolling total emissions in kg (lbs). PCE = 12-month rolling total PCE emissions from all solvent cleaning machines at the facility in kg (lbs). TCE = 12-month rolling total TCE emission from all solvent cleaning machines at the facility in kg (lbs). MC = 12-month rolling total MC emissions from all solvent cleaning machines at the facility in kg (lbs).
(c)Each owner or operator of an affected facility shall on the first operating day of every month, demonstrate compliance with the applicable facility-wide emission limit on a 12-month rolling total basis using the procedures in paragraphs (c)(1) through
(5)of this section. For purposes of this paragraph, “each solvent cleaning machine” means each solvent cleaning machine that is part of an affected facility regulated by this section.
(1)Each owner or operator of an affected facility shall, on the first operating day of every month, ensure that each solvent cleaning machine system contains only clean liquid solvent. This includes, but is not limited to, fresh unused solvent, recycled solvent, and used solvent that has been cleaned of soiled materials. A fill line must be indicated during the first month the measurements are made. The solvent level within the machine must be returned to the same fill-line each month, immediately prior to calculating monthly emissions as specified in paragraphs (c)(2) and
(3)of this section. The solvent cleaning machine does not have to be emptied and filled with fresh unused solvent prior to the calculations.
(2)Each owner or operator of an affected facility shall, on the first operating day of the month, using the records of all solvent additions and deletions for the previous month, determine solvent emissions (E <sup>unit</sup> ) from each solvent cleaning machine using equation 10: ER03MY07.016 Where: E <sup>unit</sup> = the total halogenated HAP solvent emissions from the solvent cleaning machine during the most recent month i, (kilograms of solvent per month). SA <sup>i</sup> = the total amount of halogenated HAP liquid solvent added to the solvent cleaning machine during the most recent month i, (kilograms of solvent per month). LSR <sup>i</sup> = the total amount of halogenated HAP liquid solvent removed from the solvent cleaning machine during the most recent month i, (kilograms of solvent per month). SSR <sup>i</sup> = the total amount of halogenated HAP solvent removed from the solvent cleaning machine in solid waste, obtained as described in paragraph (c)(3) of this section, during the most recent month i, (kilograms of solvent per month).
(3)Each owner or operator of an affected facility shall, on the first operating day of the month, determine SSR <sup>i</sup> using the method specified in paragraph (c)(3)(i) or (c)(3)(ii) of this section.
(i)From tests conducted using EPA reference method 25d.
(ii)By engineering calculations included in the compliance report.
(4)Each owner or operator of an affected facility shall on the first operating day of the month, after 12 months of emissions data are available, determine the 12-month rolling total emissions, ET <sup>unit</sup> , for the 12-month period ending with the most recent month using equation 11: ER03MY07.017 Where: ET <sup>unit</sup> = the total halogenated HAP solvent emissions over the preceding 12 months, (kilograms of solvent emissions per 12-month period). E <sup>unit</sup> = halogenated HAP solvent emissions for each month
(j)for the most recent 12 months (kilograms of solvent per month).
(5)Each owner or operator of an affected facility shall on the first operating day of the month, after 12 months of emissions data are available, determine the 12-month rolling total emissions, ET <sup>facility</sup> , for the 12-month period ending with the most recent month using equation 12: ER03MY07.018 Where: ET <sup>facility</sup> = the total halogenated HAP solvent emissions over the preceding 12 months for all cleaning machines at the facility, (kilograms of solvent emissions per 12-month period). ET <sup>unit</sup> = the total halogenated HAP solvent emissions over the preceding 12 months for each unit j, where i equals the total number of units at the facility (kilograms of solvent emissions per 12-month period).
(d)If the applicable facility-wide emission limit presented in Table 1 of paragraph (b)(2) is not met, an exceedance has occurred. All exceedances shall be reported as required in § 63.468(h).
(e)Each owner or operator of an affected facility shall maintain records specified in paragraphs (e)(1) through
(3)of this section either in electronic or written form for a period of 5 years. For purposes of this paragraph, “each solvent cleaning machine” means each solvent cleaning machine that is part of an affected facility regulated by this section.
(1)The dates and amounts of solvent that are added to each solvent cleaning machine.
(2)The solvent composition of wastes removed from each solvent cleaning machines as determined using the procedure described in paragraph (c)(3) of this section.
(3)Calculation sheets showing how monthly emissions and the 12-month rolling total emissions from each solvent cleaning machine were determined, and the results of all calculations.
(f)Each owner or operator of an affected facility shall submit an initial notification report to the Administrator no later than May 3, 2010. This report shall include the information specified in paragraphs (f)(1) through
(5)of this section.
(1)The name and address of the owner or operator of the affected facility.
(2)The address ( *i.e.* , physical location) of the solvent cleaning machine(s) that is part of an affected facility regulated by this section.
(3)A brief description of each solvent cleaning machine at the affected facility including machine type (batch vapor, batch cold, vapor in-line or cold in-line), solvent/air interface area, and existing controls.
(4)The date of installation for each solvent cleaning machine.
(5)An estimate of annual halogenated HAP solvent consumption for each solvent cleaning machine.
(g)Each owner or operator of an affected facility shall submit to the Administrator an initial statement of compliance on or before May 3, 2010. The statement shall include the information specified in paragraphs (g)(1) through (g)(3) of this section.
(1)The name and address of the owner or operator of the affected facility.
(2)The address ( *i.e.* , physical location) of each solvent cleaning machine that is part of an affected facility regulated by this section.
(3)The results of the first 12-month rolling total emissions calculation.
(h)Each owner or operator of an affected facility shall submit a solvent emission report every year. This solvent emission report shall contain the requirements specified in paragraphs (h)(1) through (h)(3) of this section.
(1)The average monthly solvent consumption for the affected facility in kilograms per month.
(2)The 12-month rolling total solvent emission estimates calculated each month using the method as described in paragraph
(c)of this section.
(3)This report can be combined with the annual report required in § 63.468(f) and
(g)into a single report for each facility. [FR Doc. E7-7668 Filed 5-2-07; 8:45 am] BILLING CODE 6560-50-P 72 85 Thursday, May 3, 2007 Rules and Regulations Part IV Department of Transportation Pipeline and Hazardous Materials Safety Administration 49 CFR Part 171, et al. Hazardous Materials: Revision and Reformatting of Requirements for the Authorization To Use International Transport Standards and Regulations; Final Rule DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175 and 176 [Docket No. PHMSA-2005-23141 (HM-215F)] RIN 2137-AE01 Hazardous Materials: Revision and Reformatting of Requirements for the Authorization To Use International Transport Standards and Regulations AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. SUMMARY: In this final rule, PHMSA is amending the Hazardous Materials Regulations to revise and consolidate the requirements applicable to the use of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, the International Maritime Dangerous Goods Code, Transport Canada's Transportation of Dangerous Goods Regulations, and the International Atomic Energy Agency's Safety Standards Series: Regulations for the Safe Transport of Radioactive Material. The revisions and reformatting provide a user-friendly format to promote understanding of the conditions and limitations on the use of international standards and regulations. In addition, PHMSA is authorizing the use in domestic transportation of portable tanks, cargo tank motor vehicles, and rail tank cars manufactured in accordance with Transport Canada's Transportation of Dangerous Goods Regulations. The amendments adopted in this final rule maintain the high transportation safety standard established under the Hazardous Materials Regulations. DATES: *Effective date:* October 1, 2007. *Incorporation by Reference Date:* The incorporation by reference of certain publications listed in these amendments is approved by the Director of the Federal Register as of October 1, 2007. FOR FURTHER INFORMATION CONTACT: Duane Pfund, International Standards Coordinator, telephone
(202)366-0656, or Joan McIntyre, Office of Hazardous Materials Standards, telephone
(202)366-8553, Pipeline and Hazardous Materials Safety Administration. SUPPLEMENTARY INFORMATION: I. Background To facilitate the safe and efficient transportation of hazardous materials in international commerce, the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180), with certain limitations, permit both domestic and international shipments of hazardous materials to be offered for transportation and transported under provisions of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), the International Maritime Dangerous Goods Code (IMDG Code), the Transport Canada's Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations), and the International Atomic Energy Agency's Safety Standards Series: Regulations for the Safe Transportation of Radioactive Material (IAEA Regulations), as appropriate. Consistency between U.S. and international regulations helps to assure the safety of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and effective emergency response in the event of a hazardous materials incident. For example, many shippers find that consistency in requirements aids their understanding of what is required, thereby permitting them to more easily comply with the regulations when shipping hazardous materials in international commerce. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) requires PHMSA to align the HMR with international transport standards and requirements to the extent practicable (see § 5120). The Federal hazmat law permits PHMSA to deviate from international transport standards and requirements when such action is in the public interest. Therefore, we periodically align the HMR with international transport standards and regulations through various rulemakings. We also periodically review and revise the provisions for the authorization to use the international transport standards and regulations in order to maintain a safety level equal to that of the HMR, thereby assuring the protection of people, property, and the environment. Based on our comprehensive, technical review, we have determined that the amendments adopted in this final rule provide an equivalent level of safety as is currently achieved under the HMR. On January 27, 2006, PHMSA issued a notice of proposed rulemaking (NPRM, 71 FR 4544) proposing to amend the HMR by revising and consolidating the requirements applicable to the use of international standards and regulations. Our goal with this rulemaking is to reorganize and clarify the conditions and limitations on the use of international standards and regulations for transportation in the United States. The purpose of the reorganization is to provide an easier format for HMR users, particularly for persons transporting hazardous materials by multiple modes of transportation, thereby providing a clearer understanding of the conditions and limitations for the use of authorized international standards and facilitating the transportation of hazardous material shipments. II. Discussion of Comments and Regulatory Revisions In response to the NPRM, we received 25 comments from industry associations, shippers and others, as follows: Commenter Document No. The Estee Lauder Companies, Inc.
(ELC)PHMSA-2005-23141-2 International Tank Container Organization
(ITCO)PHMSA-2005-23141-3 Regulatory Resources, Inc PHMSA-2005-23141-4 Owen B. Bugg PHMSA-2005-23141-5 Fed Ex PHMSA-2005-23141-6 The Fertilizer Institute
(TFI)PHMSA-2005-23141-7 National Tank Truck Carriers, Inc.
(NTTC)PHMSA-2005-23141-8 Air Products and Chemicals, Inc. (Air Products) PHMSA-2005-23141-9 Council on Radionuclides and Radiopharmaceuticals, Inc. (CORAR) PHMSA-2005-23141-10 PPG Industries, Inc.
(PPG)PHMSA-2005-23141-11 American Trucking Associations
(ATA)PHMSA-2005-23141-12 Ashland Specialty Chemical Company (Ashland) PHMSA-2005-23141-13 Lawrence A. Duncan PHMSA-2005-23141-14 International Vessel Operators Hazardous Materials Association, Inc. (VOHMA) PHMSA-2005-23141-15 Air Transport Association of America, Inc. (Air Transport) PHMSA-2005-23141-16 Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) PHMSA-2005-23141-17 Association of Hazmat Shippers
(AHS)PHMSA-2005-23141-18 Association of American Railroads
(AAR)PHMSA-2005-23141-19 National Propane Gas Association
(NPGA)PHMSA-2005-23141-20 CF Industries, Inc PHMSA-2005-23141-21 U.S. Nuclear Regulatory Commission
(NRC)PHMSA-2005-23141-22 Dangerous Goods Advisory Council
(DGAC)PHMSA-2005-23141-23 Canadian Trucking Alliance
(CTA)PHMSA-2005-23141-24 CropLife America PHMSA-2005-23141-25 Jerry Hayes PHMSA-2005-23141-26 Most commenters express support for the goals of this rulemaking; others raise concerns as discussed below. The NPRM primarily addressed the reformatting of the HMR sections addressing the authorization to use international standards. We proposed only minor changes to the specific requirements themselves. Some commenters mistakenly described current requirements incorporated into the reformatted sections as “proposed requirements” and, in some cases, opposed the “revisions.” Other commenters requested changes that were not proposed in the NPRM. These comments are beyond the scope of this rulemaking and are not addressed in this final rule. We direct these commenters to 49 CFR 106.95 for procedures to submit petitions for rulemaking. In this final rule, PHMSA is amending the HMR to revise, consolidate, and clarify the HMR provisions authorizing the use of the ICAO Technical Instructions, the IMDG Code, the Transport Canada TDG Regulations, and the IAEA Regulations, as previously contained in §§ 171.11, 171.12 and 171.12a. The newly designated sections, as adopted in this final rule, will continue to permit both domestic and international shipments of hazardous materials to be offered for transportation and transported under the provisions of the applicable transport standards and regulations, subject to certain conditions and limitations. Additionally, we are consolidating the newly designated sections for the use of international standards and regulations into new Subpart C. A. Incorporation by Reference Material In § 171.7, we are incorporating by reference the most recent edition of the Transport Canada TDG Regulations, including Amendments 4 and 5. Additionally, we are incorporating by reference the Canadian General Standards Board
(CGSB)standard, CGSB-43.147 for the “Construction, Modification, Qualification, Maintenance and Selection and Use of Rail Tank Cars.” The incorporation of these materials relates to our adoption of expanded provisions for the use of Canadian bulk packagings for transportation to and from the United States. As indicated below, this incorporation by reference maintains the high safety standard currently achieved under the HMR (see preamble discussion under “Bulk Shipments to Canada”). B. Consolidation of the Conditions and Limitations for Use of the ICAO Technical Instructions, IMDG Code, and TDG Regulations The HMR, ICAO Technical Instructions, IMDG Code, and the Transport Canada TDG Regulations are based on the UN Recommendations on the Transport of Dangerous Goods (UN Recommendations), which are model regulations issued by the UN Committee of Experts on the Transport of Dangerous Goods and the Globally Harmonized System of Classification and Labeling of Chemicals (UN COE). Currently, the conditions and limitations under which the ICAO Technical Instructions, IMDG Code, and TDG Regulations may be used for domestic transportation are set forth in §§ 171.11, 171.12, and 171.12a. The authorizations to use the ICAO Technical Instructions, IMDG Code, and the Transport Canada TDG Regulations contain many of the same conditions and limitations for use. To eliminate redundancy, we proposed in the NPRM to consolidate and reformat these conditions and limitations into a single section that would apply to the use of all three standards. CropLife America and the Dangerous Goods Advisory Council
(DGAC)are opposed to the consolidation and reformatting of the international standards as proposed in the NPRM. The two organizations suggest users of the HMR are familiar with the current format and assert the proposed formatting, if adopted, would create confusion and possibly “hamper compliance with the regulations.” The two commenters state “Users of the HMR normally are only interested in the additional requirements applying to requirements of one international body—not all three at one time. Consolidating the requirements forces the user to wade through numerous additional requirements not relevant to the particular international regulation of interest.” DGAC suggests these actions will “complicate compliance and may encourage other countries to reciprocate and apply minutely differing requirements based on their own domestic regulations.” We disagree with these commenters. We receive many questions each year from shippers and carriers expressing confusion about the conditions under which the international standards may be used for domestic transportation. Moreover, other commenters who address this issue (including TFI, Air Products, the American Trucking Associations, VOHMA, the Air Transport Association, and COSTHA) express support for the consolidation and reformatting proposed in the NPRM. We believe that expanding the level of detail applicable to the use of the international standards, combined with the reformatting proposed in the NPRM, will make the requirements clearer and easier to understand. Therefore, as proposed, we are consolidating into one section, § 171.22, those conditions and limitations applicable to all of the authorized international transport standards and regulations. Section 171.23 is added for requirements pertaining to specific materials and packagings, §§ 171.24-171.26 are added as separate sections specific to the additional provisions for each standard. The newly numbered sections are contained in new Subpart C of Part 171 as follows: • Section 171.22, (previously contained in § 171.11, 171.12 and 171.12a), as adopted in this final rule, authorizes the offering, acceptance, and transportation of hazardous materials: —By aircraft and motor vehicle in accordance with the ICAO Technical Instructions; —By vessel, motor vehicle, or rail in accordance with the IMDG Code, provided all or part of the transportation is by vessel; —By motor vehicle or rail in accordance with the Transport Canada TDG Regulations, for:
(1)Shipments that originate in Canada and either terminate in the United States or transit the United States to a Canadian or foreign destination, or
(2)certain bulk shipments to, from, or within the United States; —By aircraft, vessel, motor vehicle, or rail for the transportation of radioactive materials in accordance with the IAEA Regulations for shipments imported into or exported from the United States or transiting the United States during transportation between places outside the United States. • Section 171.23 specifies requirements for certain specific materials (such as combustible liquids, hazardous wastes, and organic peroxides) and packagings (such as cylinders, aerosols, and chemical oxygen generators) transported under the authorized international standards and regulations. • Section 171.24 specifies the additional requirements unique to the use of the ICAO Technical Instructions. • Section 171.25 specifies the additional requirements unique to the use of the IMDG Code. • Section 171.26 specifies the additional requirements unique to the use of the IAEA Regulations. Note that additional requirements applicable to North American shipments are contained in § 171.12. These requirements apply to use of the Transport Canada TDG regulations for shipments between the United States and Canada and to shipments into the United States from Mexico. Even though the Mexican standards, Normas Officiales Mexicanos
(NOMs)and the Regulations for Land Transportation of Hazardous Materials and Waste, are to a considerable degree consistent with the HMR, differences do exist and shippers must exercise caution to ensure that shipments transported from Mexico into the United States are in full compliance with the applicable HMR requirements. For additional information and guidance for preparing shipments of hazardous materials between the United States and Mexico, you may access *http://hazmat.dot.gov/nomslst.htm.* In several places in the NRPM, we proposed to clarify that shipments transported in conformance with an international standard must also conform to all applicable requirements of the HMR. DGAC and CropLife objected to such phrases as “all applicable requirements of this subchapter or part must be met.” The commenters request we direct the user to the requirements by replacing the phrase with the specific regulatory citations for those parts, subparts, or sections of the HMR that apply. We note concerning these comments that this phrase and similar phrases are used throughout the HMR and that it is the responsibility of the shipper or carrier to be knowledgeable about all the HMR requirements applicable to its operations. From a practical standpoint, using specific citations would mean that we would have to amend these sections if the citations are revised in future rulemakings. The more general reference makes it easier to keep the regulations up to date. For these reasons, we are not adopting the CropLife and DGAC recommendation. C. New Subparts Added to Part 171 With the addition of Subpart C to Part 171, we are also adding new subparts to more appropriately separate the remaining sections in current Part 171. Subpart A is added to include the current provisions concerning the applicability of the HMR and general requirements for transportation, and provisions for the Paperwork Reduction Act, reference material, definitions and abbreviations, rules of construction, units of measure, and North American shipments. Subpart B is added to include the current provisions for incident reporting, approvals and authorizations issued by the Bureau of Explosives, submission of reports, and investigations and special studies. We did not propose revisions to the requirements in new Subparts A and B of Part 171. In this final rule, the reorganized subparts are adopted as proposed in the NPRM except, as indicated above, requirements applicable to Canadian and Mexican shipments are located in § 171.12. D. Revisions to Current Conditions and Limitations for Use We are making several revisions to the current conditions and limitations for use of international standards and regulations, including:
(1)Removing certain unnecessary requirements;
(2)clarifying labeling requirements for limited quantities of Division 6.1 materials in Packing Groups II and III;
(3)clarifying requirements for the use of International Maritime Organization
(IMO)Type 5 tanks; and
(4)authorizing the use of the Transport Canada TDG Regulations for return shipments from the United States to Canada. These and other revisions are explained in more detail below. 1. Removal of Unnecessary HMR Requirements As proposed in the NPRM, we are removing the following conditions and limitations from the HMR because they have been incorporated into the most recent editions of the ICAO Technical Instructions, the IMDG Code, and the Transport Canada TDG Regulations and, therefore, are no longer necessary: • The restriction in current §§ 171.11(d)(12), 171.12(b)(14), and 171.12a(b)(14) prohibiting use of international standards for the transportation of ammonium nitrate fertilizer or ammonium nitrate mixed fertilizer that meets the definition for a Class 1 (explosive) material. • The limitation on the use of abbreviations in current §§ 171.11, 171.12 and 171.12a. • The prohibition in current § 171.12a(b)(6) from displaying a product identification number
(PIN)preceding a UN number. PIN numbers are no longer authorized in the TDG Regulations. Currently, under § 171.12a(b)(5)(vi), shipping papers for shipments of anhydrous ammonia prepared in accordance with the TDG Regulations must contain an indication that the markings, labels and placards have been applied in conformance with the TDG Regulations. In the NPRM, we proposed to remove this requirement because the NPRM included a proposal to require an indication on shipping papers of the regulation utilized for the shipments. We are not adopting the new shipping paper requirement in this final rule (see discussion below for a detailed explanation of the issue, comments received, and our decision this proposal). Therefore, we are retaining in this final rule the requirement specific to shipments of anhydrous ammonia. In addition, in response to a comment from TFI, we are modifying the limitations specific to the transportation of PIH materials to retain the language in current § 171.12a(b)(5)(iv) that permits shipments of anhydrous ammonia to be labeled or placarded in accordance with TDG requirements. This language was inadvertently omitted in the NPRM. TFI also notes that in § 171.102, Special Provision 13, which requires the words “Inhalation Hazard” to be entered on shipping papers and marked on packagings containing anhydrous ammonia, excepts anhydrous ammonia shipments from the shipping paper requirements in § 172.203(m) applicable to materials that are poisonous by inhalation. TFI suggests that since we are incorporating the provisions of § 172.203(m) into new § 171.23(b)(10), Special Provision 13 should be modified to include an exception from the requirements in § 171.23(b)(10). We do not agree; we believe the revised text adopted in this final rule makes clear that shipments of anhydrous ammonia prepared in accordance with the Transport Canada TDG Regulations may be labeled and placarded in accordance with TDG requirements. 2. Division 6.1 PG II and III Limited Quantity Labeling Requirements In the NPRM, we proposed to clarify the current requirement that Division 6.1 materials transported as limited quantities are not excepted from labeling when shipped to, from, or within the United States under the ICAO Technical Instructions, IMDG Code, or the Transport Canada TDG Regulations. ATA opposes this requirement, suggesting that it may require carriers to add labels to certain imported materials. It is not our intention to require carriers to affix labels to packages that are not labeled in accordance with the HMR requirements. As we have said in previous rulemakings and letters of interpretation, a carrier may rely on information provided by the offeror of the hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror or prior carrier is incorrect. Therefore, in this final rule, we are adopting the clarifying language as proposed in the NPRM. 3. Entering an Indication of the Transport Standard or Regulation Used on Shipping Papers In the NPRM, we proposed to require shippers to identify by acronym (ICAO, IMDG, TDG, or IAEA) on shipping papers the international standard or regulation under which a hazardous material shipment is being transported. We received several comments supporting and 10 comments opposing the proposal. The commenters opposed to the requirement are FedEx Express, Air Products and Chemicals, Inc. (Air Products), PPG Industries, Inc. (PPG), American Trucking Associations, Inc. (ATA), National Tank Truck Carriers (NTTC), Air Transport Association of American (Air Transport Association), Dangerous Goods Advisory Council (DGAC), Association of Hazmat Shippers (AHS), The Estee Lauder Companies, Inc.
(ELC)and the Association of American Railroads (AAR). The commenters in favor of the requirement are the International Vessel Operators Hazardous Materials Association, Inc. (VOHMA), the Council on Safe Transportation of Hazardous Articles (COSTHA), and Lawrence A. Duncan with the U.S. Coast Guard
(USCG)Container Inspection Training and Assistance Team. Commenters supporting the proposal suggest that the lack of an identification of the standard or regulation under which a hazardous material is shipped causes unnecessary transportation delays and, thus, added costs to the shipper. Commenters opposing the proposal suggest that it is not necessary and could cause confusion. For example, FedEx calls the proposed change “unnecessary” and states that such a requirement will cause shipments to be delayed and confuse shippers. DGAC states that any “justification” for the requirement has diminished over time with increasing harmonization between the HMR and international regulations. DGAC further states that the requirement would be “extremely burdensome.” Some commenters state that the requirement would be repetitive and would cause costly modifications to computer systems. The Air Transport Association suggests we make the proposed requirement permissive and allow for the acronym to be placed in association with the basic description(s) of the hazardous materials. As stated in the NPRM, we believe that identifying the particular transport standard or regulation under which a shipment is transported would expedite shipments by providing on-the-spot information to inspectors, carrier personnel and freight forwarders that would facilitate transportation and avoid confusion and frustrated shipments. However, we agree with the commenters who suggest that the need for identification of the standard or regulation used to prepare the shipment has lessened over time with the increasing harmonization of domestic and international transportation standards. Moreover, we agree that the burden this requirement would impose on shippers would outweigh any benefits that might result from its adoption. Therefore, we are not adopting the proposal in this final rule. We note, however, that shippers who wish to do so may include the acronym on shipping papers if they so choose; no rule change is necessary to permit such an indication on a shipping paper. 4. Retention of Shipping Papers In the NPRM, we proposed to clarify that each person who receives a hazardous materials shipment must retain a copy of the shipping paper in accordance with § 172.201(e). DGAC comments that we appeared to propose a more “severe requirement” in § 171.22(g)(5) by proposing to require consignees to retain shipping papers. DGAC notes that neither the Federal hazardous materials transportation law (49 U.S.C. 5101 *et seq.* ) nor the HMR apply to consignees. DGAC appears to have misunderstood our intent. We did not propose to expand the requirement to include consignees. The requirement continues to apply to each person who provides a shipping paper (see § 172.201(e)) and each person who receives a hazardous material shipment that will continue in transportation (see §§ 174.24(b), 175.30(a)(2), 176.24(b) and 177.817(f)). 5. Including the Word “Poison” or “Toxic” on Shipping Papers We are removing from § 171.23(b)(10) the proposed requirement to include the word “Poison” or “Toxic” on a shipping paper when the shipping name or class entry does not reflect the material as being poisonous. We removed this requirement under Docket HM-189Y (FR 70 56084), published on September 23, 2005, as no longer necessary because § 172.202(a)(2) requires the subsidiary hazard class(es) to be entered following the primary hazard class or division number. 6. Shipper's Certification In accordance with § 172.204, unless otherwise excepted, each person who offers a hazardous material for transportation must certify that the material is offered in accordance with all applicable HMR requirements. This certification is accomplished through the offeror's signature below a statement certifying that the shipment is properly classified, described, packaged, marked and labeled, and in proper condition for transportation according to applicable DOT regulations. A similar certification statement is also required under the IMDG Code and ICAO, but not the Transport Canada TDG Regulations. In the NPRM, we proposed to require each shipper to provide a “shipper's certification,” as required by § 172.204 of the HMR, for shipments being transported under all authorized international standards and regulations into the United States. The adoption of this requirement would align shipments being transported under the Transport Canada TDG Regulations with the other authorized international standards. AAR opposes this proposal. According to AAR, it will be extremely difficult to adapt the Electronic Data Interchange
(EDI)system used to transmit information between railroads to include the proposed certification. AAR requests a two-year implementation period. We agree that additional time would be beneficial to companies who may have to adapt computer systems to accommodate the new requirement. In this final rule, we are providing two years from the date of publication of the final rule for implementation of the new certification requirement. FedEx and Air Transport also oppose the new certification requirement, stating that it would pose an economic burden on shippers offering hazardous materials that are excepted from the certification (such as diagnostic specimens and dry ice) under the ICAO Technical Instructions. The commenters suggest an amendment to the proposal that would continue to except such shipments from the shipper's certification requirement. Commenters appear to have misunderstood the NPRM proposal. It was not our intention to require a shipper's certification for shipments that are currently excepted from this requirement. However, the comments suggest a need to clarify this issue in the regulatory text. Therefore, in this final rule, we are adopting the requirement as proposed with the addition of the phrase “unless otherwise excepted” in the regulatory text to clarify that the existing exceptions from the shipping certification requirement are still in effect. 7. Use of IMO Type 5 Tanks In the NPRM, we proposed in § 171.24 to clarify the conditions under which IMO Type 5 tanks are authorized for the transportation of hazardous materials. An IMO Type 5 tank is only authorized when specifically identified in the applicable packaging section of the HMR. If an IMO Type 5 tank is not specifically listed as an authorized packaging, the portable tank must meet DOT 51 or UN portable tank requirements. No commenters addressed this proposal. Therefore, it is adopted as proposed in the NPRM. 8. Bulk Shipments to Canada In the current § 171.12a, the use of the Transport Canada TDG Regulations includes the return to Canada of empty bulk packages containing only a residue of the hazardous materials initially imported into the United States. We proposed in the NPRM to expand in § 171.26 the authorization to permit the use of bulk packagings authorized in the TDG regulations to transport hazardous materials while returning to Canada from the United States. Additionally, we requested comments concerning whether we should expand reciprocity and allow the use in domestic transportation in the United States of cargo tanks, rail tank cars, and portable tanks built to Canadian specifications as Canada permits the use in Canada of similar packagings built to U.S. specifications. We asked commenters to address whether there are safety or operational considerations we should examine before expanding reciprocal treatment beyond the amendments we proposed in the NPRM. ATA, NTTC, Air Products and CTA support expanded reciprocity to allow unrestricted use in the United States of cargo tanks constructed to Canadian specifications. AAR strongly supports reciprocity for tank cars, noting the current similarities between the two regulations. We agree with these commenters that expansion of authorization for use of the Transport Canada TDG Regulations in the United States will provide additional flexibility and is consistent with the reciprocity currently extended to the United States for DOT specification bulk packagings. We note in this regard that Transport Canada is considering implementing restrictions on the use in Canada of DOT specification cargo tanks, rail tank cars, and portable tanks that are similar to the restrictions we now place on bulk packagings manufactured in accordance with Canadian specifications. If implemented in Canada, such a restriction would limit U.S. carriers' operational flexibility and potentially increase transportation costs. PHMSA worked closely with Transport Canada to compare the cargo tank, rail tank car and portable tank requirements in the HMR and the TDG Regulations. We determined that the standards for design, manufacture, and requalification of cargo tanks, rail tank cars, and portable tanks in the TDG Regulations are equivalent to the standards for design, manufacture, and requalification of cargo tanks, rail tank cars, and portable tanks in the HMR. Further, according to Transport Canada, cargo tanks, rail tank cars, and portable tanks built to the Canadian specifications have a well-established history of safe operations. We reviewed the small number of incidents in the United States over the past several years involving cargo tanks, rail tanks cars, and portable tanks built to the Canadian specifications and found no evidence of safety problems attributable to flaws in the design or manufacturing specifications. NTTC and ATA agree that there is no safety rationale for continuing to deny full reciprocity to bulk packagings built to Canadian specifications. Therefore, we are authorizing the domestic use of portable tanks, cargo tank motor vehicles and rail tank cars manufactured in accordance with the TDG Regulations, provided the packagings conform to all applicable operational requirements specified in Parts 173, 177, and 180 of the HMR. Thus, a portable tank, cargo tank, or rail tank car conforming to the TDG regulations may be used for transportation within the United States provided an equivalent packaging is authorized under the HMR and the bulk packaging conforms to operational requirements specific to each bulk packaging type. For example, a cargo tank motor vehicle constructed in accordance with the TDG regulations may be used in the United States provided it conforms to the HMR requirements applicable to loading, maximum lading pressure, pressure relief devices, retention of lading in piping, and emergency discharge control systems. As a result of this amendment, we are revising §§ 171.31, 171.32 and 171.33 to reflect the authorization. We are also revising the HMR to clarify the parts of the HMR applicable to Canadian specification bulk packagings (for example, hazardous material authorizations in the § 172.101 Hazardous Materials Table
(HMT)Special Provision B Codes, material specific requirements in Part 173, operational requirements in Parts 174 and 177 for rail and motor vehicle transportation, and periodic testing and inspection requirements in Part 180). These amendments will ensure that bulk packagings constructed in accordance with the Canadian specifications will conform to all applicable HMR requirements when operated in the United States, thus maintaining the level of safety currently achieved under the HMR. We note concerning this provision that shippers may use a portable tank, cargo tank motor vehicle or rail tank car equivalent to a corresponding DOT specification and conforming to and authorized by the Transport Canada TDG Regulations provided an equivalent type of packaging is authorized for the hazardous material in the HMR. Generally, an equivalent type of packaging will be one with same specification number as a U.S. packaging. Thus, an equivalent type of packaging to the MC 331 cargo tank authorized in the HMR is the TC 331 cargo tank authorized in the TDG regulations. As proposed in the NPRM, in § 171.26 (previously § 171.12a(a)), we are removing the statement concerning TDG reciprocal provisions for U.S. shipments. The statement is not regulatory in nature and, therefore, is not appropriate for inclusion in the HMR. We also are removing the information currently contained in § 171.12a(b) that tells the reader how to obtain copies of the Transport Canada TDG Regulations; this is covered in the Reference Material provisions of § 171.7. E. Combustible Liquids In the NPRM, we stated that under the HMR, a material with a flashpoint of 38 °C (100 °F) or more but less than 60.5 °C (141 °F), may be classed as a combustible liquid when packaged in a non-bulk package. Since publication of the NPRM, a final rule under Docket PHMSA-06-25476 (HM-215I) at 71 FR 78596 published on December 29, 2006, adopted an amendment to revise the combustible liquid definition's lower limit to 60 °C (140 °F). Therefore, based on the new definition, such materials are not subject to the provisions of the HMR when transported by highway or rail. However, these same materials are regulated as flammable liquids when transported by vessel in accordance with the IMDG Code or by air under the ICAO Technical Instructions. In the NPRM, we proposed to add a statement to new § 171.23 indicating that a material reclassed as a combustible liquid under the HMR may require classification as a flammable liquid when offered for transportation or transported internationally. ATA comments that the proposed language is permissive and fails to establish a specific standard for the transportation of combustible liquids under the international standards. Upon reconsideration, we agree that recommendatory language generally is not appropriate for inclusion in regulatory text. Therefore, we are not adopting the provision in this final rule. ATA further suggests that, in the short term, flammable liquids reclassed as combustible liquids should continue to be excepted from placarding requirements and, in the long term, the combustible liquids classification should be abolished. ATA's comments are beyond the scope of this rulemaking; we will consider them in a future rulemaking. A material with a flashpoint greater than 60 °C (140 °F) is not regulated as a hazardous material under the ICAO Technical Instructions or the IMDG Code; however, a material with a flashpoint between 60 °C (140 °F) and 93 °C (200 °F) is regulated as a combustible liquid under the HMR. When transported in bulk packages, a combustible liquid must be placarded with a COMBUSTIBLE placard (see § 172.544). The COMBUSTIBLE placard is not recognized overseas; therefore, shipments prepared in accordance with the HMR may be frustrated internationally by inspectors and enforcement personnel who are not familiar with the U.S. requirements. To avoid such frustration, shippers and carriers may remove the COMBUSTIBLE placard prior to placing the shipment on board a vessel for overseas shipment. However, these efforts are complicated by the requirement for the COMBUSTIBLE placard to remain on bulk packages while in the United States. Shipments originating overseas and bound for the United States encounter a similar problem when the shipment arrives in the United States, and the COMBUSTIBLE placard must be affixed prior to the shipment's movement. In the NPRM, we proposed to provide an exception from placarding for bulk shipments of combustible liquids in port areas. DGAC and VOHMA support the proposal to except combustible liquids shipments from placarding requirements in port areas. Both organizations view the proposal as a positive solution to the problem of incompatible domestic and international regulations applicable to the transportation of combustible liquids. Air Products and Owen Bugg express reservations regarding the proposed exception. These commenters state that under the proposed exception, shipments could sit at a port for several days without information for emergency responders. The commenters add that this may lead to segregation and enforcement complications because “port area” is not defined under the HMR, and enforcement officers may have varying interpretations of its meaning. The commenters suggest clarifying the issue by defining “port area.” Based on the comments received as well as our own additional analysis and review, we believe several issues as they relate to the use of placards for combustible liquids must be further studied before we modify regulations for domestic shipments of materials to international destinations. Among the issues that need further review, clarification and development are the definition of “port area,” hazard communications, emergency responder notification and other related critical safety issues. Therefore, in this final rule, we are not adopting the exception as proposed in the NPRM. However, we will continue to consider this issue as part of a review of all the regulatory requirements applicable to combustible liquids, as discussed in the following paragraph. VOHMA raised a number of additional concerns about combustible liquids including concerns about improper documentation of flammable liquids with a flashpoint above 38 °C (93 °F) that are reclassed as combustible liquids being improperly transported by vessel. These issues are beyond the scope of this rulemaking. However, PHMSA has initiated a review of the regulations applicable to the transportation of combustible liquids. This review will consider the transportation risk posed by these materials and differences between the domestic and international requirements for combustible liquids with a view towards determining whether the domestic regulations should be modified to more appropriately address the transportation risks of these materials. This effort will include a review of classification criteria, packaging requirements, shipping documentation, and hazard communication. F. Cylinders in Port Area In the NPRM, we proposed to consolidate current provisions governing the limitations on the use of international standards for the transportation of hazardous materials in cylinders. We did not propose changes to the conditions under which non-DOT specification cylinders may be used within the United States. Since publication of the NPRM, PHMSA published a final rule under Docket Number HM-220E (June 12, 2006; 71 FR 33858) adopting standards for the design, construction, maintenance, and use of cylinders and multiple element gas containers contained in the UN Recommendations. The HM-220E final rule revised current § 171.12 to specify the conditions and limitations on the use of UN cylinders in the United States. In this final rule, we are incorporating without change the revised provisions of § 171.12 into new § 171.23(a). Additionally, we moved the cylinder import/export requirements from current paragraphs
(k)and
(l)in § 173.301 to new § 171.23 and the Canadian cylinder requirements from paragraph
(m)of § 173.301 to new § 171.26. Section 173.301(j) is revised and paragraph
(n)is redesignated as paragraph (k). G. Authorization To Use TC Specification Cylinders Currently, the HMR authorize the use of Canadian Transport Commission
(CTC)specification cylinders that are manufactured, originally marked, and approved in accordance with the Transport Canada TDG Regulations and in full conformance with the TDG Regulations, provided certain requirements are met. In the NPRM, we proposed to expand this authorization to include Transport Canada
(TC)specification cylinders. We received a comment from the National Propane Gas Association
(NPGA)supporting the facilitation of international transportation of hazardous materials, but raising concerns about our proposal. NPGA questions whether the markings on the cylinders will be in metric units and recommends that we authorize dual markings in both metric and non-metric units of measurements. Upon revisiting the issue, we realized that in addition to the marking requirements, the HMR would need updating to reflect the correct filling and requalification cites applicable to the TC cylinders. The proposed authorization for use of TC cylinders is not being adopted in this final rule; however, PHMSA will address TC cylinders in an upcoming rulemaking. G. Training Requirements Currently, the HMR permit training related to the requirements of the ICAO Technical Instructions and the IMDG Code as an alternative to function specific training on the requirements of the HMR. In the NPRM, we proposed to require hazmat employees to be provided training on the international standards in addition to function-specific training on the requirements of the HMR. Four commenters (DGAC, Croplife, AAR, and ATA) object to the proposed revision to the training requirements. DGAC and Croplife note their understanding that the current function-specific training provisions require training on those sections of the ICAO Technical Instructions or IMDG Code that are relevant to a hazmat employee's responsibilities. DGAC and Croplife suggest that revised language is unnecessary and could result in confusion on the degree to which the additional training is required. DGAC and Croplife recommend we clarify this issue through guidance rather then rulemaking. AAR expresses concern that, since the revision was not discussed in the preamble to the NPRM, it is unclear what additional training would be required, why it is necessary, or the cost implications for the industry. ATA suggests it will be extremely difficult and expensive to train truck drivers on the requirements of both the HMR and the international regulations. DGAC and Croplife are correct that, under the current function specific training requirements in § 172.704, hazmat employees should be trained on those sections of the ICAO Technical Instructions or IMDG Code that apply to a hazmat employee's responsibilities. However, we agree with those commenters who suggest that we do not currently have adequate information on the potential impacts of the proposed revision to mandate training for hazmat employees on the international standards in addition to function-specific training on the requirements of the HMR. Therefore, we are not adopting it in this final rule. We may consider this issue in a future rulemaking. H. Incorporating Complete Text As proposed in the NPRM, we are minimizing references in the regulatory text to other sections and parts of the HMR by incorporating the complete text for certain requirements in place of the reference number. This revision is being made to facilitate use of the HMR by minimizing the frequency with which the user will need to refer to other sections of the HMR. III. Rulemaking Analyses and Notices A. Statutory/Legal Authority for This Rulemaking Under § 5120(b) of Federal hazmat law, the Secretary of Transportation must ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. We are making revisions to the requirements authorizing the use of international standards and regulations in the United States. The continually increasing amount of hazardous materials transported in international commerce warrants harmonization of domestic and international requirements to the greatest extent possible. Harmonization serves to facilitate international transportation; more importantly, harmonization ensures the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is a non-significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. This final rule reorganizes and clarifies the conditions and limitations on the use of international standards and regulations for transporting hazardous materials in the United States. The final rule also removes unnecessary and outdated requirements and includes provisions to increase shipper flexibility for the transport of hazardous materials. The final rule imposes a new requirement for shippers to provide a shipper's certification for shipments transported into the United States under the Transport Canada TDG Regulations. Such a certification is already required under the HMR, ICAO Technical Instructions, and IMDG Code, and we believe that most Canadian shippers already include such a certification on shipments into the United States. Moreover, we are providing a two-year transition period to minimize potential cost impacts. The final rule also provides for expanded exceptions concerning the use of bulk packagings manufactured in accordance with Canadian standards. The exceptions provide increase flexibility for both shippers and carriers and will facilitate the international transportation of hazardous materials, thereby reducing overall transportation costs, while maintaining the current level of safety currently achieved under the HMR. C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). Any rule resulting from this rulemaking will preempt State, local and Indian tribe requirements but will not have substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazmat law contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(1)The designation, description, and classification of hazardous materials;
(2)The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;
(3)The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;
(4)The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or
(5)The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. This final rule addresses covered subject items (1), (2), (3), and
(5)above and would preempt State, local, and Indian tribe requirements not meeting the “substantively the same” standard. Federal hazmat law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the **Federal Register** the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption for this rule is August 1, 2007. D. Executive Order 13175 This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply. E. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires an agency to review regulations to assess their impact on small entities unless the agency determines the rule is not expected to have a significant impact on a substantial number of small entities. While the requirements in this final rule apply to a substantial number of small entities, there will not be a significant economic impact on those small entities. *Identification of potentially affected small entities.* Businesses likely to be affected by the rule are persons who offer for transportation or transport hazardous materials in commerce, including hazardous materials manufacturers and distributors; transportation companies, including air, highway, rail, and vessel carriers; hazardous waste generators; and container and packaging manufacturers. Unless alternative definitions have been established by the agency in consultation with the Small Business Administration (SBA), the definition of “small business” has the same meaning as under the Small Business Act. Because no such special definition has been established, we employ the thresholds published by SBA for establishments that will be subject to the adopted amendments. Based on data for 2002 compiled by the U.S. Census Bureau, upwards of 95 percent of persons that would be affected by this rule are small businesses. *Reporting and recordkeeping requirements.* This final rule includes no new requirements for reporting or recordkeeping. *Related Federal rules and regulations.* There are no related Federal rules or regulations governing the transportation of hazardous materials in domestic or international commerce. *Alternate proposals for small businesses.* The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where it is possible to do so and still meet the objectives of applicable regulatory statutes. In the case of hazardous materials transportation, it is not possible to establish exceptions or differing standards and still accomplish our safety objectives. *Conclusion.* While the final rule will apply to a substantial number of small entities, there will not be a significant impact on those entities. This final rule reorganizes and clarifies the conditions and limitations on the use of international standards and regulations for transporting hazardous materials in the United States. The final rule also removes unnecessary and outdated requirements and includes expanded exceptions to increase shipper flexibility for the transport of hazardous materials to Canada. The exceptions provide increased flexibility for both shippers and carriers and will facilitate the international transportation of hazardous materials, thereby reducing overall transportation costs, while maintaining the safety standard currently achieved under the HMR. This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of rules on small entities are properly considered. F. Paperwork Reduction Act There are no new information collection requirements in this final rule. G. Regulation Identifier Number
(RIN)A regulation identifier number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. H. Unfunded Mandates Reform Act This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. I. Environmental Assessment The National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321 *et seq.* ) requires each Federal agency to consider and analyze the environmental consequences of its actions. The analysis helps determine if the action is a major action that may significantly affect the quality of the human environment. We regulate hazardous materials transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, or loading, unloading, or handling problems. The ecosystems that could be affected by a release include air, water, soil, and ecological resources (for example, wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean up of the accident scene. Most hazardous materials are not transported in quantities sufficient to cause significant, long-term environmental damage if they are released. The hazardous material regulatory system is a risk management system that is prevention oriented and focused on identifying a hazard and reducing the probability and quantity of a hazardous material release. Hazardous materials are categorized by hazard analysis and experience into hazard classes and packing groups. The regulations require each shipper to classify a material in accordance with these hazard classes and packing groups; the process of classifying a hazardous material is itself a form of hazard analysis. Further, the regulations require the shipper to communicate the material's hazards through use of the hazard class, packing group, and proper shipping name on the shipping paper and the use of labels on packages and placards on transport vehicles. Thus the shipping paper, labels, and placards communicate the most significant findings of the shipper's hazard analysis. A hazardous material is assigned to one of three packing groups based upon its degree of hazard, from a high hazard, Packing Group I to a low hazard, Packing Group III material. The quality, damage resistance, and performance standards of the packaging in each packing group are appropriate for the hazards of the material transported. The changes made to the HMR in this final rule will improve the effectiveness of the HMR by clarifying the conditions under which international transport standards and regulations may be used for shipments transported in the United States. When used as authorized in this final rule, the international standards and regulations provide an equivalent level of safety and environmental protection as the HMR. Therefore, there are no significant environmental impacts associated with this final rule. J. Privacy Act Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), which may also be found at *http://dms.dot.gov* . List of Subjects 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements. 49 CFR Part 172 Education, Hazardous materials transportation, Hazardous waste, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 175 Air carriers, Hazardous materials transportation, Incorporation by reference, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 176 Hazardous materials transportation, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements. In consideration of the foregoing, we are amending 49 CFR Chapter I as follows: PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 1. The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53. 2. In part 171, designate §§ 171.1 through 171.14 as subpart A and add a new subpart A heading immediately before § 171.1 to read as follows: Subpart A—Applicability, General Requirements, and North American Shipments § 171.7 [Revised] 3. In § 171.7, in paragraph (a)(3), in the Table of Material Incorporated by Reference, the following changes are made: a. The entry “Canadian General Standards Board” is added in alphabetical order. b. Under the entry “International Atomic Energy Agency (IAEA),” revise the entry “IAEA, Regulations for the Safe Transport of Radioactive Material, 1996 Edition (Revised), No. TS-R-1 (ST-1, Revised)” by adding the words “(IAEA Regulations)” after the wording “Regulations for the Safe Transport of Radioactive Material”, and in the second column, remove “171.12” and add “171.22; 171.23; 171.26” in its place. c. Under the entry “International Civil Aviation Organization (ICAO)”, in the entry “Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2007-2008 Edition”, in the second column, remove “171.11” and add “171.22; 171.23; 171.24; 175.33” in its place. d. Under the entry “International Maritime Organization (IMO)”, in the entry “International Maritime Dangerous Goods Code (IMDG Code), 2006 Edition, Incorporating Amendment 33-06 (English Edition), Volumes 1 and 2”, in the second column, remove “171.12” and add “171.22; 171.23; 171.25” in its place. e. Under the entry “Transport Canada”, revise the entire entry for “Transportation of Dangerous Goods
(TDG)Regulations, August 2001 including Clear Language Amendments SOR/2001-286, Amendment 1 (SOR/2002-306) August 8, 2002; Amendment 2 (SOR/2003-273) July 24, 2003; and Amendment 3 (SOR/2003-400) December 3, 2003.” f. Under the entry “United Nations”, revise the entry “UN Recommendations on the Transport of Dangerous Goods (UN Recommendations), Fourteenth revised edition (2005), Volumes I and II”, in the second column, remove “171.12” and add “171.28” in its place, and add “173.56” in appropriate numerical order. The additions read as follows: § 171.7 Reference material.
(a)* * *
(3)*Table of material incorporated by reference.* Source and name of material 49 CFR reference * * * * * * * Canadian General Standards Board, Place du Portage III, 6B1 11 171.12 Laurier Street, Gatineau, Quebec, Canada K1A 1G6 National Standard of Canada (CAN/CGSB 43.147—2005) Construction, Modification, Qualification, Maintenance, and Selection and Use of Means of Containment for the Handling, Offering for Transport, or Transportation of Dangerous Goods by Rail * * * * * * * Transport Canada * * * Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations), August 2001 including Clear Language Amendments SOR/2001-286, Amendment 1 (SOR/2002-306) August 8, 2002; Amendment 2 (SOR/2003-273) July 24, 2003; Amendment 3 (SOR/2003-400) December 3, 2003; Amendment 4 (SOR/2005-216) July 13, 2005; and Amendment 5 (SOR/2005-279) September 21, 2005 171.12; 171.22; 171.23; 172.401; 172.502; 172.519; 172.602; 173.31; 173.32; 173.33 * * * * * * * §§ 171.11 [Removed and Reserved] 4. Remove and reserve §§ 171.11. 5. Revise the section heading for § 171.12; revise paragraph (a); remove paragraphs (b), (c), and (d); and redesignate paragraph
(e)as paragraph (b), to read as follows: § 171.12 North American Shipments.
(a)*Requirements for the use of the Transport Canada TDG Regulations.*
(1)A hazardous material transported from Canada to the United States, from the United States to Canada, or transiting the United States to Canada or a foreign destination may be offered for transportation or transported by motor carrier and rail in accordance with the Transport Canada TDG Regulations (IBR, see § 171.7) as authorized in § 171.22, provided the requirements in §§ 171.22 and 171.23, as applicable, and this section are met. In addition, a cargo tank motor vehicle, portable tank or rail tank car authorized by the Transport Canada TDG Regulations may be used for transportation to, from, or within the United States provided the cargo tank motor vehicle, portable tank or rail tank car conforms to the applicable requirements of this section. Except as otherwise provided in this subpart, the requirements in parts 172, 173, and 178 of this subchapter do not apply for a material transported in accordance with the Transport Canada TDG Regulations if all other requirements of this subpart and the TDG Regulations are met.
(2)*General packaging requirements.* When the provisions of this subchapter require a DOT specification or UN standard packaging to be used for transporting a hazardous material, a packaging authorized by the Transport Canada TDG Regulations may be used, subject to the limitations of this subpart, and only if it is equivalent to the corresponding DOT specification or UN packaging (see § 173.24(d)(2) of this subchapter) authorized by this subchapter.
(3)*Bulk packagings.* A portable tank, cargo tank motor vehicle or rail tank car equivalent to a corresponding DOT specification and conforming to and authorized by the Transport Canada TDG Regulations may be used provided—
(i)An equivalent type of packaging is authorized for the hazardous material according to the § 172.101 table of this subchapter;
(ii)The portable tank, cargo tank motor vehicle or rail tank car conforms to the requirements of the applicable part 173 bulk packaging section specified in the § 172.101 table for the material to be transported;
(iii)The portable tank, cargo tank motor vehicle or rail tank car conforms to the requirements of all assigned bulk packaging special provisions (B codes, and T and TP codes) in § 172.102 of this subchapter; and
(iv)The bulk packaging conforms to all applicable requirements of §§ 173.31, 173.32, 173.33 and 173.35 of this subchapter, and parts 177 and 180 of this subchapter. The periodic retests and inspections required by §§ 173.31, 173.32 and 173.33 of this subchapter may be performed in accordance with part 180 of this subchapter or in accordance with the requirements of the TDG Regulations provided that the intervals prescribed in part 180 of this subchapter are met.
(v)Rail tank cars must conform to the requirements of Canadian General Standards Board standard 43.147 (IBR, see § 171.7).
(4)*Cylinders.* When the provisions of this subchapter require that a DOT specification or a UN pressure receptacle must be used for a hazardous material, a packaging authorized by the Transport Canada TDG Regulations may be used only if it corresponds to the DOT specification or UN standard authorized by this subchapter. Unless otherwise excepted in this subchapter, a cylinder (including a UN pressure receptacle) may not be transported unless—
(i)The packaging is a UN pressure receptacle marked with the letters “CAN” for Canada as a country of manufacture or a country of approval or is a cylinder that was manufactured, inspected and tested in accordance with a DOT specification or a UN standard prescribed in part 178 of this subchapter, except that cylinders not conforming to these requirements must meet the requirements in § 171.23. Each cylinder must conform to the applicable requirements in part 173 of this subchapter for the hazardous material involved.
(ii)The packaging is a Canadian Transport Commission
(CTC)specification cylinder manufactured, originally marked and approved in accordance with the CTC regulations and in full conformance with the Transport Canada TDG Regulations.
(A)The CTC specification corresponds with a DOT specification and the cylinder markings are the same as those specified in this subchapter except that they were originally marked with the letters “CTC” in place of “DOT”;
(B)The cylinder has been requalified under a program authorized by the Transport Canada TDG Regulations or requalified in accordance with the requirements in § 180.205 within the prescribed requalification period provided for the corresponding DOT specification;
(C)When the regulations authorize a cylinder for a specific hazardous material with a specification marking prefix of “DOT”, a cylinder marked “CTC” which otherwise bears the same markings that would be required of the specified “DOT” cylinder may be used; and
(D)Transport of the cylinder and the material it contains is in all other respects in conformance with the requirements of this subchapter (e.g. valve protection, filling requirements, operational requirements, etc.).
(5)*Class 1 (explosive) materials* . When transporting Class 1 (explosive) material, rail and motor carriers must comply with 49 CFR 1572.9 and 1572.11 to the extent the requirements apply. § 171.12a [Removed and Reserved] 6. Remove and reserve § 171.12a. 7. In part 171, designate §§ 171.15 through 171.21 as subpart B and add a new Subpart B heading immediately before § 171.15 to read as follows: Subpart B—Incident Reporting, Notification, BOE Approvals and Authorization 8. In part 171, add new Subpart C to read as follows: Subpart C—Authorization and Requirements for the Use of International Transport Standards and Regulations Sec. 171.22 Authorization and conditions for the use of international standards and regulations. 171.23 Requirements for specific materials and packagings transported under the ICAO Technical Instructions, IMDG Code, Transport Canada TDG Regulations, or the IAEA Regulations. 171.24 Additional requirements for the use of the ICAO Technical Instructions. 171.25 Additional requirements for the use of the IMDG Code. 171.26 Additional requirements for the use of the IAEA Regulations. § 171.22 Authorization and conditions for use of international standards and regulations.
(a)*Authorized international standards and regulations* . This subpart authorizes, with certain conditions and limitations, the offering for transportation and the transportation in commerce of hazardous materials to, from, or within the United States in accordance with the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), the International Maritime Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations), and the International Atomic Energy Agency Regulations for the Safe Transport of Radioactive Material (IAEA Regulations) (IBR, see § 171.7).
(b)*Limitations on the use of international standards and regulations* . A hazardous material that is offered for transportation or transported in accordance with the international standards and regulations authorized in paragraph
(a)of this section—
(1)Is subject to the requirements of the applicable international standard or regulation and must be offered for transportation or transported in conformance with the applicable standard or regulation; and
(2)Must conform to all applicable requirements of this subpart.
(c)*Materials excepted from regulation under international standards and regulations* . A material designated as a hazardous material under this subchapter, but excepted from or not subject to the international transport standards and regulations authorized in paragraph
(a)of this section (e.g., paragraph 1.16 of the Transport Canada TDG Regulations excepts from regulation quantities of hazardous materials less than or equal to 500 kg gross transported by rail) must be transported in accordance with all applicable requirements of this subchapter.
(d)*Materials not regulated under this subchapter* . Materials not designated as hazardous materials under this subchapter but regulated by an international transport standard or regulation authorized in paragraph
(a)of this section may be offered for transportation and transported in the United States in full compliance (i.e., packaged, marked, labeled, classed, described, stowed, segregated, secured) with the applicable international transport standard or regulation.
(e)*Forbidden materials* . No person may offer for transportation or transport a hazardous material that is a forbidden material or package as designated in—
(1)Section 173.21 of this subchapter;
(2)Column
(3)of the § 172.101 Table of this subchapter;
(3)Column
(9A)of the § 172.101 Table of this subchapter when offered for transportation or transported on passenger aircraft or passenger railcar; or
(4)Column
(9B)of the § 172.101 Table of this subchapter when offered for transportation or transported by cargo aircraft.
(f)*Complete information and certification* .
(1)Except for shipments into the United States from Canada conforming to § 171.12, each person importing a hazardous material into the United States must provide the forwarding agent at the place of entry into the United States timely and complete written information as to the requirements of this subchapter applicable to the particular shipment.
(2)After May 4, 2009, the shipper, directly or through the forwarding agent at the place of entry, must provide the initial U.S. carrier with the shipper's certification required by § 172.204 of this subchapter, unless the shipment is otherwise excepted from the certification requirement. Except for shipments for which the certification requirement does not apply, a carrier may not accept a hazardous material for transportation unless provided a shipper's certification.
(3)All shipping paper information and package markings required in accordance with this subchapter must be in English. The use of shipping papers and a package marked with both English and a language other than English, in order to dually comply with this subchapter and the regulations of a foreign entity, is permitted under this subchapter.
(4)Each person who provides for transportation or receives for transportation (see §§ 174.24, 175.30, 176.24 and 177.817 of this subchapter) a shipping paper must retain a copy of the shipping paper or an electronic image thereof that is accessible at or through its principal place of business in accordance with § 172.201(e) of this part.
(g)* Additional requirements for the use of international standards and regulations * . All shipments offered for transportation or transported in the United States in accordance with this subpart must conform to the following requirements of this subchapter, as applicable:
(1)The emergency response information requirements in subpart G of part 172 of this subchapter;
(2)The training requirements in subpart H of part 172 of this subchapter, including function-specific training in the use of the international transport standards and regulations authorized in paragraph
(a)of this section, as applicable;
(3)The security requirements in subpart I of part 172 of this subchapter;
(4)The incident reporting requirements in §§ 171.15 and 171.16 of this part for incidents occurring within the jurisdiction of the United States including on board vessels in the navigable waters of the United States and aboard aircraft of United States registry anywhere in air commerce;
(5)The general packaging requirements in §§ 173.24 and 173.24a of this subchapter;
(6)The requirements for the reuse, reconditioning, and remanufacture of packagings in § 173.28 of this subchapter; and
(7)The registration requirements in subpart G of part 107 of this chapter. § 171.23 Requirements for specific materials and packagings transported under the ICAO Technical Instructions, IMDG Code, Transport Canada TDG Regulations, or the IAEA Regulations. All shipments offered for transportation or transported in the United States under the ICAO Technical Instructions, IMDG Code, Transport Canada TDG Regulations, or the IAEA Regulations (IBR, see § 171.7) must conform to the requirements of this section, as applicable.
(a)*Conditions and requirements for cylinders* —(1) Except as provided in this paragraph, a filled cylinder (pressure receptacle) manufactured to other than a DOT specification or a UN standard in accordance with part 178 of this subchapter, or a DOT exemption or special permit cylinder or a cylinder used as a fire extinguisher in conformance with § 173.309(a) of this subchapter, may not be transported to, from, or within the United States.
(2)Cylinders (including UN pressure receptacles) transported to, from, or within the United States must conform to the applicable requirements of this subchapter. Unless otherwise excepted in this subchapter, a cylinder must not be transported unless—
(i)The cylinder is manufactured, inspected and tested in accordance with a DOT specification or a UN standard prescribed in part 178 of this subchapter, except that cylinders not conforming to these requirements must meet the requirements in paragraphs (a)(3), (a)(4) or (a)(5) of this section;
(ii)The cylinder is equipped with a pressure relief device in accordance with § 173.301(f) of this subchapter and conforms to the applicable requirements in part 173 of this subchapter for the hazardous material involved;
(iii)The openings on an aluminum cylinder in oxygen service conform to the requirements of this paragraph, except when the cylinder is used for aircraft parts or used aboard an aircraft in accordance with the applicable airworthiness requirements and operating regulations. An aluminum DOT specification cylinder must have an opening configured with straight (parallel) threads. A UN pressure receptacle may have straight (parallel) or tapered threads provided the UN pressure receptacle is marked with the thread type, e.g. “17E, 25E, 18P, or 25P” and fitted with the properly marked valve; and
(iv)A UN pressure receptacle is marked with “USA” as a country of approval in conformance with §§ 178.69 and 178.70 of this subchapter.
(3)Importation of cylinders for discharge within a single port area: A cylinder manufactured to other than a DOT specification or UN standard in accordance with part 178 of this subchapter and certified as being in conformance with the transportation regulations of another country may be authorized, upon written request to and approval by the Associate Administrator, for transportation within a single port area, provided—
(i)The cylinder is transported in a closed freight container;
(ii)The cylinder is certified by the importer to provide a level of safety at least equivalent to that required by the regulations in this subchapter for a comparable DOT specification or UN cylinder; and
(iii)The cylinder is not refilled for export unless in compliance with paragraph (a)(3) of this section.
(4)Filling of cylinders for export or for use on board a vessel: A cylinder not manufactured, inspected, tested and marked in accordance with part 178 of this subchapter, or a cylinder manufactured to other than a UN standard, DOT specification, exemption or special permit, may be filled with a gas in the United States and offered for transportation and transported for export or alternatively, for use on board a vessel, if the following conditions are met:
(i)The cylinder has been requalified and marked with the month and year of requalification in accordance with subpart C of part 180 of this subchapter, or has been requalified as authorized by the Associate Administrator;
(ii)In addition to other requirements of this subchapter, the maximum filling ensity, service pressure, and pressure relief device for each cylinder conform to the requirements of this part for the gas involved; and
(iii)The bill of lading or other shipping paper identifies the cylinder and includes the following certification: “This cylinder has (These cylinders have) been qualified, as required, and filled in accordance with the DOT requirements for export.”
(5)Cylinders not equipped with pressure relief devices: A DOT specification or a UN cylinder manufactured, inspected, tested and marked in accordance with part 178 of this subchapter and otherwise conforms to the requirements of part 173 for the gas involved, except that the cylinder is not equipped with a pressure relief device may be filled with a gas and offered for transportation and transported for export if the following conditions are met:
(i)Each DOT specification cylinder or UN pressure receptacle must be plainly and durably marked “For Export Only”;
(ii)The shipping paper must carry the following certification: “This cylinder has (These cylinders have) been retested and refilled in accordance with the DOT requirements for export.”; and
(iii)The emergency response information provided with the shipment and available from the emergency response telephone contact person must indicate that the pressure receptacles are not fitted with pressure relief devices and provide appropriate guidance for exposure to fire.
(b)*Conditions and requirements specific to certain materials* —(1) *Aerosols* . Except for a limited quantity of a compressed gas in a container of not more than 4 fluid ounces capacity meeting the requirements in § 173.306(a)(1) of this subchapter, the proper shipping name “Aerosol,” UN1950, may be used only for a non-refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure the sole purpose of which is to expel a nonpoisonous (other than Division 6.1, Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device (see § 171.8). In addition, an aerosol must be in a metal packaging when the packaging exceeds 7.22 cubic inches.
(2)*Air bag inflator, air bag module and seat-belt pretensioner* . For each approved air bag inflator, air bag module and seat-belt pretensioner, the shipping paper description must conform to the requirements in § 173.166(c) of this subchapter.
(i)The EX number or product code must be included in association with the basic shipping description. When a product code is used, it must be traceable to the specific EX number assigned to the inflator, module or seat-belt pretensioner by the Associate Administrator. The EX number or product code is not required to be marked on the outside package.
(ii)The proper shipping name “Articles, pyrotechnic *for technical purposes* , UN0431” must be used for all air bag inflators, air bag modules, and seat-belt pretensioners meeting the criteria for a Division 1.4G material.
(3)*Chemical oxygen generators* . Chemical oxygen generators must be approved, classed, described, packaged, and transported in accordance with the requirements of this subchapter.
(4)*Class 1 (explosive) materials* . Prior to being transported, Class 1 (explosive) materials must be approved by the Associate Administrator in accordance with § 173.56 of this subchapter. Each package containing a Class 1 (explosive) material must conform to the marking requirements in § 172.320 of this subchapter.
(5)*Hazardous substances* . Except for Class 7 (radioactive) materials, a material meeting the definition of a hazardous substance as defined in § 171.8, must conform to the shipping paper requirements in § 172.203(c) of this subchapter and the marking requirements in § 172.324 of this subchapter:
(i)The proper shipping name must identify the hazardous substance by name, or the name of the substance must be entered in parentheses in association with the basic description and marked on the package in association with the proper shipping name. If the hazardous substance meets the definition for a hazardous waste, the waste code (for example, D001), may be used to identify the hazardous substance;
(ii)The shipping paper and the package markings must identify at least two hazardous substances with the lowest reportable quantities
(RQs)when the material contains two or more hazardous substances; and
(iii)The letters “RQ” must be entered on the shipping paper either before or after the basic description, and marked on the package in association with the proper shipping name for each hazardous substance listed.
(6)*Hazardous wastes* . A material meeting the definition of a hazardous waste (see § 171.8) must conform to the following:
(i)The shipping paper and the package markings must include the word “Waste” immediately preceding the proper shipping name;
(ii)The shipping paper must be retained by the shipper and by each carrier for three years after the material is accepted by the initial carrier (see § 172.205(e)(5)); and
(iii)A hazardous waste manifest must be completed in accordance with § 172.205 of this subchapter.
(7)*Marine pollutants* . Except for marine pollutants (see § 171.8) transported in accordance with the IMDG Code, marine pollutants transported in bulk packages must meet the shipping paper requirements in § 172.203(l) of this subchapter and the package marking requirements in § 172.322 of this subchapter.
(8)*Organic peroxides* . Organic peroxides not identified by technical name in the Organic Peroxide Table in § 173.225(b) of this subchapter must be approved by the Associate Administrator in accordance with § 173.128(d) of this subchapter.
(9)*Poisonous materials, Division 6.1* . Division 6.1 hazardous materials transported as limited quantities are not excepted from labeling (see § 173.153(b)).
(10)*Poisonous by inhalation materials* . A material poisonous by inhalation (see § 171.8) must conform to the following requirements:
(i)The words “Poison-Inhalation Hazard” or “Toxic-Inhalation Hazard” and the words “Zone A,” “Zone B,” “Zone C,” or “Zone D” for gases, or “Zone A” or “Zone B” for liquids, as appropriate, must be entered on the shipping paper immediately following the basic shipping description. The word “Poison” or “Toxic” or the phrase “Poison-Inhalation Hazard” or “Toxic-Inhalation Hazard” need not be repeated if it otherwise appears in the shipping description;
(ii)The material must be packaged in accordance with the requirements of this subchapter;
(iii)The package must be marked in accordance with § 172.313 of this subchapter; and
(iv)Except as provided in subparagraph
(B)of this paragraph (b)(10)(iv) and for a package containing anhydrous ammonia prepared in accordance with the Transport Canada TDG Regulations, the package must be labeled or placarded with POISON INHALATION HAZARD or POISON GAS, as appropriate, in accordance with Subparts E and F of part 172 of this subchapter.
(A)For a package transported in accordance with the IMDG Code in a closed transport vehicle or freight container, a label or placard conforming to the IMDG Code specifications for a “Class 2.3” or “Class 6.1” label or placard may be substituted for the POISON GAS or POISON INHALATION HAZARD label or placard, as appropriate. The transport vehicle or freight container must be marked with the identification numbers for the hazardous material, regardless of the total quantity contained in the transport vehicle or freight container, in the manner specified in § 172.313(c) of this subchapter and placarded as required by subpart F of part 172 of this subchapter.
(B)For a package transported in accordance with the Transport Canada TDG Regulations in a closed transport vehicle or freight container, a label or placard conforming to the TDG Regulations specifications for a “Class 2.3” or “Class 6.1” label or placard may be substituted for the POISON GAS or POISON INHALATION HAZARD label or placard, as appropriate. The transport vehicle or freight container must be marked with the identification numbers for the hazardous material, regardless of the total quantity contained in the transport vehicle or freight container, in the manner specified in § 172.313(c) of this subchapter and placarded as required by subpart F of part 172 of this subchapter. While in transportation in the United States, the transport vehicle or freight container may also be placarded in accordance with the appropriate Transport Canada TDG Regulations in addition to being placarded with the POISON GAS or POISON INHALATION HAZARD placards.
(11)*Class 7 (radioactive) materials* .
(i)Highway route controlled quantities (see § 173.403 of this subchapter) must be shipped in accordance with §§ 172.203(d)(4) and (d)(10); 172.507, and 173.22(c) of this subchapter;
(ii)For fissile materials and Type B, Type B(U), and Type B(M) packagings, the competent authority certification and any necessary revalidation must be obtained from the appropriate competent authorities as specified in §§ 173.471, 173.472, and 173.473 of this subchapter, and all requirements of the certificates and revalidations must be met;
(iii)Type A package contents are limited in accordance with § 173.431 of this subchapter;
(iv)The country of origin for the shipment must have adopted the edition of TS-R-1 of the IAEA Regulations referenced in § 171.7;
(v)The shipment must conform to the requirements of § 173.448, when applicable;
(vi)The definition for “radioactive material” in § 173.403 of this subchapter must be applied to radioactive materials transported under the provisions of this subpart;
(vii)Except for limited quantities, the shipment must conform to the requirements of § 172.204(c)(4) of this subchapter; and
(viii)Excepted packages of radioactive material, instruments or articles, or articles containing natural uranium or thorium must conform to the requirements of §§ 173.421, 173.424, or 173.426 of this subchapter, as appropriate.
(12)*Self-reactive materials* . Self-reactive materials not identified by technical name in the Self-reactive Materials Table in § 173.224(b) of this subchapter must be approved by the Associate Administrator in accordance with § 173.124(a)(2)(iii) of this subchapter. § 171.24 Additional requirements for the use of the ICAO Technical Instructions.
(a)A hazardous material that is offered for transportation or transported within the United States by aircraft, and by motor vehicle or rail either before or after being transported by aircraft in accordance with the ICAO Technical Instructions (IBR, see § 171.7), as authorized in paragraph
(a)of § 171.22, must conform to the requirements in § 171.22, as applicable, and this section.
(b)Any person who offers for transportation or transports a hazardous material in accordance with the ICAO Technical Instructions must comply with the following additional conditions and requirements:
(1)All applicable requirements in parts 171 and 175 of this subchapter (also see 14 CFR 121.135, 121.401, 121.433a, 135.323, 135.327 and 135.333);
(2)The quantity limits prescribed in the ICAO Technical Instructions for transportation by passenger-carrying or cargo aircraft, as applicable;
(3)The conditions or requirements of a United States variation, when specified in the ICAO Technical Instructions.
(c)*Highway transportation* . For transportation by highway prior to or after transportation by aircraft, a shipment must conform to the applicable requirements of part 177 of this subchapter, and the motor vehicle must be placarded in accordance with subpart F of part 172.
(d)*Conditions and requirements specific to certain materials* . Hazardous materials offered for transportation or transported in accordance with the ICAO Technical Instructions must conform to the following specific conditions and requirements, as applicable:
(1)*Batteries* —(i) *Nonspillable wet electric storage batteries* . Nonspillable wet electric storage batteries are not subject to the requirements of this subchapter provided—
(A)The battery meets the conditions specified in Special Provision 67 of the ICAO Technical Instructions;
(B)The battery, its outer packaging, and any overpack are plainly and durably marked “NONSPILLABLE” or “NONSPILLABLE BATTERY”; and
(C)The batteries or battery assemblies are offered for transportation or transported in a manner that prevents short circuiting or forced discharge, including, but not limited to, protection of exposed terminals.
(ii)*Primary lithium batteries and cells* . Primary lithium batteries and cells may not be transported aboard passenger carrying aircraft. Equipment containing or packed with primary lithium batteries or cells may not be transported aboard passenger-carrying aircraft except as provided in § 172.102, Special Provision A101 or A103, of this subchapter. Except for primary lithium batteries and cells contained in or packed with equipment, packagings containing primary lithium batteries and cells meeting the exceptions in § 173.185(b) and
(c)of this subchapter must be marked “PRIMARY LITHIUM BATTERIES—FORBIDDEN FOR TRANSPORT ABOARD PASSENGER AIRCRAFT” and may be transported aboard cargo-only aircraft.
(iii)*Prototype lithium batteries and cells* . Prototype lithium batteries and cells are forbidden for transport aboard passenger aircraft and must be approved by the Associate Administrator prior to transportation aboard cargo aircraft, in accordance with the requirements of Special Provision A55 in § 172.102 of this subchapter.
(2)*Oxygen cylinders* . A cylinder containing “ *Oxygen, compressed* ” may not be transported aboard a passenger-carrying aircraft, or in an inaccessible cargo location aboard a cargo-only aircraft, unless it is packaged as required by parts 173 and 178 of this subchapter and is placed in an overpack or outer packaging that satisfies the requirements of Special Provision A52 in § 172.102. § 171.25 Additional requirements for the use of the IMDG Code.
(a)A hazardous material may be offered for transportation or transported to, from or within the United States by vessel, and by motor carrier and rail in accordance with the IMDG Code (IBR, see § 171.7), as authorized in § 171.22, provided all or part of the movement is by vessel. Such shipments must conform to the requirements in § 171.22, as applicable, and this section.
(b)Any person who offers for transportation or transports a hazardous material in accordance with the IMDG Code must conform to the following additional conditions and requirements:
(1)Unless otherwise excepted, a shipment must conform to the requirements in part 176 of this subchapter. For transportation by rail or highway prior to or subsequent to transportation by vessel, a shipment must conform to the applicable requirements of parts 174 and 177 respectively, of this subchapter, and the motor vehicle or rail car must be placarded in accordance with subpart F of part 172 of this subpart. When a hazardous material regulated by this subchapter for transportation by highway is transported by motor vehicle on a public highway under the provisions of this subpart, the segregation requirements of Part 7, Chapter 2 of the IMDG Code are authorized.
(2)The stowage and segregation requirements in Part 7 of the IMDG Code may be substituted for the stowage and segregation requirements in part 176 of this subchapter.
(c)*Conditions and requirements for bulk packagings* . Except for IBCs and UN portable tanks used for the transportation of liquids or solids, bulk packagings must conform to the requirements of this subchapter. Additionally, the following requirements apply:
(1)UN portable tanks must conform to the requirements in Special Provisions TP37, TP38, TP44 and TP45 when applicable, and any applicable bulk special provisions assigned to the hazardous material in the Hazardous Materials Table in § 172.101 of this subchapter;
(2)IMO Type 5 portable tanks must conform to DOT Specification 51 or UN portable tank requirements, unless specifically authorized in this subchapter or approved by the Associate Administrator;
(3)Except as specified in this subpart, for a material poisonous (toxic) by inhalation, the T Codes specified in Column 13 of the Dangerous Goods List in the IMDG Code may be applied to the transportation of those materials in IM, IMO and DOT Specification 51 portable tanks, when these portable tanks are authorized in accordance with the requirements of this subchapter; and
(4)No person may offer an IM or UN portable tank containing liquid hazardous materials of Class 3, PG I or II, or PG III with a flash point less than 100 °F (38 °C); Division 5.1, PG I or II; or Division 6.1, PG I or II, for unloading while it remains on a transport vehicle with the motive power unit attached, unless it conforms to the requirements in § 177.834(o) of this subchapter.
(d)*Use of IMDG Code in port areas* .
(1)Except for Division 1.1, 1.2, and Class 7 materials, a hazardous material being imported into or exported from the United States or passing through the United States in the course of being shipped between locations outside the United States may be offered and accepted for transportation and transported by motor vehicle within a single port area, including contiguous harbors, when packaged, marked, classed, labeled, stowed and segregated in accordance with the IMDG Code, offered and accepted in accordance with the requirements of subparts C and F of part 172 of this subchapter pertaining to shipping papers and placarding, and otherwise conforms to the applicable requirements of part 176 of this subchapter.
(2)The requirement in § 172.201(d) of this subchapter for an emergency telephone number does not apply to shipments made in accordance with the IMDG Code if the hazardous material is not offloaded from the vessel, or is offloaded between ocean vessels at a U.S. port facility without being transported by public highway. § 171.26 Additional requirements for the use of the IAEA Regulations. A Class 7 (radioactive) material being imported into or exported from the United States or passing through the United States in the course of being shipped between places outside the United States may be offered for transportation or transported in accordance with the IAEA Regulations (IBR, see § 171.7) as authorized in paragraph
(a)of § 171.22, provided the requirements in § 171.22, as applicable, are met. PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS 7. The authority citation for part 172 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR, 1.53. 8. In § 172.400a, revise paragraph
(d)to read as follows: § 172.400a Exceptions from labeling.
(d)A package containing a material poisonous by inhalation (see § 171.8 of this subchapter) in a closed transport vehicle or freight container may be excepted from the POISON INHALATION HAZARD or POISON GAS label or placard, under the conditions set forth in § 171.23(b)(11) of this subchapter. 9. In § 172.519, revise paragraph
(f)to read as follows: § 172.519 General specifications for placards.
(f)*Exceptions.* When hazardous materials are offered for transportation or transported under the provisions of subpart C of part 171 of this subchapter, a placard conforming to the specifications in the ICAO Technical Instructions, the IMDG Code, or the Transport Canada TDG Regulations (IBR, see § 171.7 of this subchapter) may be used in place of a corresponding placard conforming to the requirements of this subpart. However, a bulk packaging, transport vehicle, or freight container containing a material poisonous by inhalation (see § 171.8 of this subchapter) must be placarded in accordance with this subpart (see § 171.23(b)(11) of this subchapter). PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 12. The authority citation for part 173 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53. § 173.21 [Amended] 13. In § 173.21, in paragraph (k), in the first sentence, the phrase “including § 171.11 and” is revised to read “including subpart C of part 171 and”. 14. In § 173.24, revise paragraphs (c)(2) and
(i)to read as follows: § 173.24 General requirements for packagings and packages.
(c)* * *
(2)The packaging is permitted under, and conforms to, provisions contained in subparts B or C of part 171 of this subchapter or §§ 173.3, 173.4, 173.5, 173.5a, 173.6, 173.7, 173.8, 173.27, or § 176.11 of this subchapter.
(i)*Air transportation.* Except as provided in subpart C of part 171 of this subchapter, packages offered or intended for transportation by aircraft must conform to the general requirements for transportation by aircraft in § 173.27. 15. In § 173.27, revise paragraph
(f)introductory text to read as follows: § 173.27 General requirements for transportation by aircraft.
(f)*Combination packagings.* Unless otherwise specified in this part, or in subpart C of part 171 of this subchapter, when combination packagings are offered for transportation aboard aircraft, inner packagings must conform to the quantity limitations set forth in Table 1 of this paragraph for transport aboard passenger-carrying aircraft and Table 2 of this paragraph for transport aboard cargo aircraft only, as follows: 15. In § 173.31, add new paragraph (a)(8) to read as follows: § 173.31 Use of tank cars.
(a)* * *
(8)A tank car authorized by the Transport Canada TDG Regulations (IBR, see § 171.7 of this subchapter) may be used provided it conforms to the applicable requirements in § 171.12 of this subchapter. 16. In § 173.32, add new paragraph (b)(4) to read as follows: § 173.32 Requirements for the use of portable tanks.
(b)* * *
(4)A portable tank authorized by the Transport Canada TDG Regulations (IBR, see § 171.7 of this subchapter) may be used provided it conforms to the applicable requirements in § 171.12 of this subchapter. 17. In § 173.33, add new paragraph
(h)to read as follows: § 173.33 Hazardous materials in cargo tank motor vehicles.
(h)A cargo tank motor vehicle authorized by the Transport Canada TDG Regulations (IBR, see § 171.7 of this subchapter) may be used provided it conforms to the applicable requirements in § 171.12 of this subchapter. 18. In § 173.56, revise paragraph
(g)to read as follows: § 173.56 New explosives—definition and procedures for classification and approval.
(g)An explosive may be transported under subparts B or C of part 171 or § 176.11 of this subchapter without the approval of the Associate Administrator as required by paragraph
(b)of this section if the Associate Administrator has acknowledged in writing the acceptability of an approval issued by the competent authority of a foreign government pursuant to the provisions of the UN Recommendations, the ICAO Technical Instructions, the IMDG Code (IBR, see § 171.7 of this subchapter), or other national or international regulations based on the UN Recommendations. In such a case, a copy of the foreign competent authority approval, and a copy of the written acknowledgement of its acceptance must accompany each shipment of that explosive. 19. In § 173.301, revise paragraph (j); remove paragraphs (k),
(l)and (m); and redesignate paragraph
(n)as paragraph (k), to read as follows: § 173.301 General requirements for shipment of compressed gases in cylinders and spherical pressure vessels.
(j)*Non-specification cylinders in domestic use.* Except as provided in §§ 171.12(a) and 173.23(g) of this subchapter, a filled cylinder manufactured to other than a DOT specification or a UN standard in accordance with part 178 of this subchapter, or a DOT exemption or special permit cylinder or a cylinder used as a fire extinguisher in conformance with § 173.309(a), may not be transported to, from, or within the United States. PART 175—CARRIAGE BY AIRCRAFT 20. The authority citation for part 175 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53. 21. In § 175.30, in paragraph (a)(2), revise the first sentence to read as follows: § 175.30 Inspecting shipments.
(a)* * *
(2)Described and certified on a shipping paper prepared in duplicate in accordance with part 172 of this subchapter or as authorized by Subpart C of part 171 of this subchapter. * * * 22. In § 175.33, revise paragraph (a)(1)(ii) to read as follows: § 175.33 Shipping paper and notification of pilot-in-command.
(a)* * *
(1)* * *
(ii)The ICAO Technical Instructions (IBR, see § 171.7 of this subchapter), any additional information required to be shown on shipping papers by subpart C of part 171 of this subchapter must also be shown in the notification. PART 176—CARRIAGE BY VESSEL 23. The authority citation for part 176 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 24. In § 176.11, revise the first sentence of paragraph
(a)introductory text, and paragraph
(b)to read as follows: § 176.11 Exceptions
(a)A hazardous material may be offered and accepted for transport by vessel when in conformance with the IMDG Code (IBR, see § 171.7 of this subchapter), subject to the conditions and limitations set forth in subpart C of part 171 of this subchapter. * * *
(b)Canadian shipments and packages may be transported by vessel if they are transported in accordance with this subchapter. (See subparts B and C of part 171 of this subchapter.) § 176.24 [Amended] 25. In § 176.24, in paragraph (a), the phrase “authorized by § 171.12 of this subchapter” is revised to read “authorized by subpart C of part 171 of this subchapter”. 26. In § 176.27, in paragraph (b), revise the last sentence to read as follows: § 176.27 Certificate.
(b)* * * See subpart C of part 171 of this subchapter. Issued in Washington, DC, on April 16, 2007, under authority delegated in 49 CFR Part 1. Thomas J. Barrett, Administrator. [FR Doc. 07-1959 Filed 5-2-07; 8:45 am]
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17 references not yet in our index
- 40 CFR 63
- 29 CFR 1910
- 40 CFR 9
- 48 CFR 15
- Pub. L. 104-4
- Pub. L. 104-113
- 49 CFR 171
- 49 CFR 106.95
- 49 CFR 172
- 49 CFR 173
- 49 CFR 175
- 49 CFR 176
- 49 USC 5101-5128
- 49 CFR 1.45
- 49 CFR 1572.9
- 49 CFR 1.53
- 49 CFR 1
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