[Federal Register Volume 60, Number 16 (Wednesday, January 25, 1995)]
[Proposed Rules]
[Pages 4878-4881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1804]
=======================================================================
-----------------------------------------------------------------------
[[Page 4879]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173, 174, 175, 176, 177, 178, 179, and 180
[Docket No. HM-221; Notice No. 95-2]
RIN 2137-AC62
Alternate Standards for Open-Head Fiber Drum Packaging
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Supplemental advance notice of proposed rulemaking; reopening
of public comment period and announcement of public hearing.
-----------------------------------------------------------------------
SUMMARY: RSPA is inviting additional proposals and comments concerning
alternate standards for open-head fiber drum packagings, for the
domestic transportation of liquid hazardous materials. Among the
matters on which further comments may be submitted are the alternate
standards proposed by the International Fibre Drum Institute; a
proposed exception for certain shipments of hazardous wastes; and the
factors which RSPA should consider in this rulemaking proceeding.
DATES: Written comments: Comments must be received on or before March
13, 1995.
Public hearing: A public hearing will be held on February 17, 1995,
beginning at 9:30 a.m.
ADDRESSES: Comments: Address comments to Dockets Unit, Research and
Special Programs Administration, U.S. Department of Transportation,
Washington, DC 20590-0001. Comments should identify the Docket (HM-221)
and be submitted, if possible, in five copies. Persons wishing to
receive confirmation of receipt of their comments should include a
self-addressed stamped postcard showing the docket number. The Dockets
Unit is located in Room 8419 of the Nassif Building, 400 Seventh
Street, SW., Washington, DC 20590-0001. Telephone: 202-366-5046. Public
dockets may be reviewed between the hours of 8:30 a.m. and 5:30 p.m.,
Monday through Friday except Federal holidays.
Public hearing: The February 17, 1995 public hearing will be held
at the Federal Aviation Administration's Auditorium, 3rd floor, 800
Independence Avenue, SW., Washington, DC. Any person planning to
present an oral statement at the public hearing should notify John
Potter or Diane LaValle, by telephone or in writing by February 15,
1995. Each request must include the identity of the speaker and
organization represented, if any; a daytime telephone number; and
anticipated length of presentation, not to exceed 10 minutes. Speakers
are requested to provide a written copy of their prepared text to the
presiding officer prior to making their oral statement. The hearing may
conclude before 5 p.m. if all persons wishing to speak have been heard.
FOR FURTHER INFORMATION CONTACT: John Potter or Diane LaValle, Office
of Hazardous Materials Standards, Research and Special Programs
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590-0001; telephone 202-366-4488.
SUPPLEMENTARY INFORMATION:
I. Background
On and after October 1, 1996, fiber drums used for the
transportation of liquid hazardous materials must meet the performance-
oriented standards set forth in Subpart M of 49 CFR Part 178. See 49
CFR 171.14(a)(1)(iii). These consist of the tests and standard
prescribed in the following sections of 49 CFR:
Sec. 178.603--drop test
Sec. 178.604--leakproofness test
Sec. 178.605--hydrostatic test
Sec. 178.606--stacking test
Sec. 178.608--vibration standard
These performance-oriented standards were adopted in RSPA's
rulemaking proceeding No. HM-181. 55 FR 52042 (Dec. 21, 1990); 56 FR
66124 (Dec. 20, 1991); 57 FR 45442, 45446 (Oct. 1, 1992); 57 FR 46624
(Oct. 9, 1992).
On October 7, 1994, RSPA published in the Federal Register an
advance notice of proposed rulemaking (ANPRM), Docket No. HM-221;
Notice No. 94-9 (59 FR 51157), soliciting comments and proposals for
alternate standards for open-head fiber drum packaging. The ANPRM was
issued to fulfill the requirement in Section 122(a) of the Hazardous
Materials Transportation Authorization Act of 1994 (Pub. L. 103-311)
(the ``Act'') that DOT initiate a rulemaking proceeding
To determine whether the requirements of section 5103(b) of
title 49, United States Code (relating to regulations for safe
transportation) as they pertain to open head fiber drum packaging
can be met for the domestic transportation of liquid hazardous
materials (with respect to those classifications of hazardous
materials transported by such drums pursuant to regulations in
effect on September 30, 1991) with standards other than the
performance-oriented packaging standards adopted under docket number
HM-181 contained in part 178 of title 49, Code of Federal
Regulations.
If, as a result of this rulemaking proceeding, DOT determines
That a packaging standard other than the performance-oriented
packaging standards referred to in [Section 122(a)] will provide an
equal or greater level of safety for the domestic transportation of
liquid hazardous materials than would be provided if such
performance-oriented standards were in effect, [DOT] shall issue
regulations which implement such other standards and which take
effect before October 1, 1996.
Section 122(b). The Act also requires that the rulemaking
proceeding be completed before October 1, 1995 (Section 122(c)), but
that this rulemaking and any regulations issued ``shall not apply to
packaging for those hazardous materials regulated by the Department of
Transportation as poisonous by inhalation * * *'' Section 122(d)(1).
In the ANPRM, RSPA requested ``[d]etailed comments and proposals .
. . that will assist RSPA in developing an appropriate regulatory
proposal consistent with the requirement quoted above.'' 59 FR 51158.
RSPA invited proposals, ``preferably in the form of a draft standard,
that would assist RSPA in accomplishing the intended effect of this
law.'' Id. RSPA also invited comments on whether alternate standards
for open head fiber drums should be limited to domestic transportation
of liquid hazardous materials. The comment period on the ANPRM closed
December 12, 1994.
In response to the ANPRM, RSPA received comments from 17 parties.
In addition, RSPA's Administrator and other DOT officials have held two
meetings concerning this rulemaking with: (1) Counsel for the
International Fibre Drum Institute (IFDI) and officials of Sonoco
Products Company (a member of IFDI), on September 30, 1994, and (2)
representatives of the Association of Container Reconditioners, the 3M
Corporation, USX Corporation, and the Steel Shipping Container
Institute (SSCI), on December 16, 1994. Notes of these two meetings
have been placed in the public docket file of this rulemaking
proceeding.
Only IFDI has proposed alternate standards for open-head fiber drum
packaging for the transportation of liquid hazardous materials. Several
other commenters expressed opposition to alternate standards, including
SSCI which asserted that alternate standards would move the United
States away from an international system of hazardous materials
regulations, forcing some shippers to stock different packagings for
domestic and [[Page 4880]] international shipments, and compromise
transportation safety by authorizing lower quality packagings. Another
commenter stated that alternate packagings should be approved only
under the provisions of 49 CFR 178.601(h), which authorizes RSPA's
Associate Administrator for Hazardous Materials Safety to approve
packagings which are ``shown to be equally effective, and testing
methods used must be equivalent.''
Another party, Monsanto Company, expressed general support for the
performance-oriented packaging standards adopted in HM-181, but urged
RSPA to provide a limited exception to allow the use of non-standard
fiber drums for the shipment of liquid hazardous wastes in packing
groups II and III to incineration facilities. Monsanto's proposal would
apply to the situation when the entire package (with its contents) was
to be incinerated, and would allow the one-time use of drums similar in
design to former DOT specifications 21C and 21P, under conditions
similar to those set forth in 49 CFR 173.12(c) (authorizing the reuse
of standard packagings for shipments of hazardous waste, by highway
only, when the packaging is packed at least 24 hours in advance of
transportation, inspected for leaks, and loaded by the shipper and
unloaded by the consignee--or handled only by private or contract
carrier). Monsanto would also limit to 90 days the total time the non-
standard fiber drum could contain the liquid hazardous waste.
Other commenters stated that any alternate standards adopted should
apply to all open-head drums (of whatever construction materials);
Russell-Stanley Corp. specifically requested that RSPA expand this
rulemaking to include steel and plastic drums ``of equal performance,''
if RSPA issued alternate standards for fiber drums.
In its comments, IFDI stated that open-head fiber drums presently
being manufactured meet the stacking test set forth in 49 CFR 178.606
and the vibration standard set forth in 49 CFR 178.608. As alternatives
to the other three HM-181 performance standards (drop, leakproofness,
and hydrostatic pressure tests), IFDI has proposed, and it discussed in
its written comments, a set of six standards entitled as follows:
IFDI Standard 101, Rev. 1--Compatibility Test
IFDI Standard 110, Rev. 1--Joint Integrity Test
IFDI Standard 120, Rev. 1--Leakage Spray Test
IFDI Standard 130, Rev. 1--Weatherproofing Test
IFDI Standard 140, Rev. 1--Fibre Drum Structure
IFDI Standard 150, Rev. 1--Impact Test
These six proposed standards appear to be identical to standards
proposed by IFDI's predecessor organization, the Fibre Drum Technical
Council (FDTC), in a June 8, 1992 application for an exemption. RSPA's
Associate Administrator for Hazardous Materials Safety denied FDTC's
application for an exemption because he found that FDTC's proposed
impact test was not equivalent to the 3.9 and 2.6 foot drop tests
required for Packing Group II and III packagings, respectively, and
that FDTC's other proposed tests did not address the pressure
requirements of the leakproofness and hydrostatic pressure tests
required for packagings intended for liquid hazardous materials.
RSPA's Acting Administrator affirmed the denial of FDTC's
application for an exemption and found that the standards proposed by
FDTC would not achieve a level of safety ``at least equal to that
specified in the regulation from which the exemption is sought.'' 49
CFR 107.103(b)(9)(1). (Attachment A to IFDI's written comments contains
copies of FDTC's application for an exemption to allow the continued
use, after October 1, 1996, of open-head fiber drums that do not meet
the HM-181 performance-oriented packaging standards; RSPA's denials of
that application; RSPA's evaluation form and issue papers; and FDTC's
appeal of RSPA's denial of the application for an exemption.)
In a separate letter, which IFDI also included in its written
comments (Attachment B), IFDI has asserted that the ANPRM was deficient
for failing to specify factors that, according to IFDI,
Congress directed DOT to consider. These factors are set forth
in the legislative history and include: (1) DOT's Hazardous Incident
Reporting System as it pertains to fibre drums; (2) the fibre drum
industry's own safety record; (3) the 30 years of shipping
experience associated with use of these drums; and (4) existing
industry standards that have led to the industry's ``excellent
shipping record.''
II. Request for Additional Comment
Based on the comments to the ANPRM, RSPA is issuing this
supplemental ANPRM and scheduling a public hearing, to allow interested
parties to submit additional proposals and comments with regard to
alternate standards for open-head fiber drum packaging. Additional
comments are requested on the issue of whether the alternate standards
proposed by IFDI ``will provide an equal or greater level of safety for
the domestic transportation of liquid hazardous materials than would be
provided if [the HM-181] performance-oriented packaging standards were
in effect,'' as required by Section 122(b) of the Act, particularly in
light of RSPA's prior determination (on FDTC's exemption application)
that similar standards did not provide an equal or greater level of
safety than the HM-181 performance standards. Comments are also
requested on the factors ``set forth in the legislative history'' of
Section 122, as outlined above. Further comments are also invited on
whether alternate standards, if adopted, should apply to packagings
other than fiber drums, as well as with regard to Monsanto's proposal
for an exception to allow non-standard fiber drums to be used for
shipping hazardous wastes to incineration facilities.
Interested parties are encouraged to consult the ANPRM and submit
any comments relevant to the direction in Section 122 of the Act,
including, but not limited to, those matters specified in the preceding
paragraph.
To facilitate the submission of further comments, RSPA is mailing
to each party that has submitted comments on the ANPRM a copy of IFDI's
December 12, 1994 written comments and the text of the six alternative
standards proposed by IFDI. Any interested person may obtain a copy of
these materials or a copy of RSPA's Action on Appeal affirming the
denial of FDTC's application for an exemption, at no cost, from RSPA's
Docket's Unit (see the address and telephone number set forth in
Addresses above).
III. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This supplemental advance notice of proposed rulemaking is not
considered a significant regulatory action under section 3(f) of
Executive Order 12866 and was not reviewed by the Office of Management
and Budget. This supplemental advance notice of proposed rulemaking is
not considered significant under the regulatory policies and procedures
of the Department of Transportation (44 FR 11034; February 26, 1979).
B. Executive Order 12612
RSPA will evaluate any proposed rule in accordance with the
principles and criteria contained in Executive Order 12612
(``Federalism'').
C. Regulatory Flexibility Act
RSPA will evaluate any proposed rule to determine whether it would
have a [[Page 4881]] significant economic impact on a substantial
number of small entities.
D. Paperwork Reduction Act
There are no new information collection requirements in this
advance notice of proposed rulemaking.
E. Regulations Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
Issued at Washington, DC, on January 19, 1995, under authority
delegated in 49 CFR Part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-1804 Filed 1-24-95; 8:45 am]
BILLING CODE 4910-60-P
