[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7958-7959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4628]
[[Page 7957]]
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Part VII
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171
Extension of Authority for Open-Head Fiber Drum Packaging for Liquid
Hazardous Materials; Final Rule
Federal Register / Vol. 61, No. 41 / Thursday, February 29, 1996 /
Rules and Regulations
[[Page 7958]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. HM-221A; Amdt. No. 171-139]
RIN 2137-AC77
Extension of Authority for Open-Head Fiber Drum Packaging for
Liquid Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: In accordance with Section 406 of the ``Interstate Commerce
Commission Sunset Act'' (the Act), RSPA is extending the authority to
ship certain liquid hazardous materials in open-head fiber drums that
do not meet performance-oriented packaging standards for hazardous
materials in Packing Group III. This extension expires on the later of
September 30, 1997, or the date on which funds are authorized to be
appropriated for the hazardous materials transportation program for
fiscal years beginning after September 30, 1997.
EFFECTIVE DATE: This final rule is effective on October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street, SW, Washington, DC 20590-0001;
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION: On January 9, 1996, RSPA published a notice
of proposed rulemaking (NPRM) under Docket No. HM-221A, Notice No. 96-1
(61 FR 688), proposing to extend for one additional year, until
September 30, 1997, authority for the transportation of certain liquid
hazardous materials in non-specification open-head fiber drums that do
not meet the performance-oriented packaging standards in the Hazardous
Materials Regulations (HMR), 49 CFR Parts 171-180.
In the absence of this extension, these open-head fiber drums would
not be authorized for shipping these hazardous materials after
September 30, 1996. See 49 CFR 171.14(a)(1)(iii). This is because, in a
final rule in Docket No. HM-181 (56 FR 66124, Dec. 20, 1991), RSPA
eliminated most instances where the HMR had previously authorized the
use of non-specification packagings, including packagings for
environmentally hazardous substances such as polychlorinated biphenyls.
However, to allow for an orderly transition to the performance-oriented
packaging standards for non-bulk packagings also adopted in HM-181,
RSPA authorized packagings meeting the HM-181 performance standards to
be used immediately but provided a five-year phase-out period ending on
September 30, 1996, for previously authorized packagings.
In the January 9, 1996 NPRM, RSPA proposed to add a new paragraph
(a)(2)(iii) to 49 CFR 171.14 to carry out the mandate in paragraphs (a)
and (b) of Section 406 of the Interstate Commerce Commission Sunset Act
(Pub. L. 104-88, Dec. 29, 1995). Section 406 reads as follows:
Sec. 406. Fiber Drum Packaging.
(a) In General.--In the administration of chapter 51 of title
49, United States Code, the Secretary of Transportation shall issue
a final rule within 60 days after the date of the enactment of this
Act authorizing the continued use of fiber drum packaging with a
removable head for the transportation of liquid hazardous materials
with respect to those liquid hazardous materials transported by such
drums pursuant to regulations in effect on September 30, 1991, if--
(1) the packaging is in compliance with regulations of the
Secretary under the Hazardous Materials Transportation Act as in
effect on September 30, 1991; and
(2) the packaging will not be used for the transportation of
hazardous materials that include materials which are poisonous by
inhalation or materials in Packing Groups I and II.
(b) Expiration.--The regulation referred to in subsection (a)
shall expire on the later of September 30, 1997, or the date on
which funds are authorized to be appropriated to carry out chapter
51 of title 49, United States Code (relating to transportation of
hazardous materials), for fiscal years beginning after September 30,
1997.
(c) STUDY.--
(1) IN GENERAL.--Within 90 days after the date of enactment of
this Act, the Secretary shall contract with the National Academy of
Sciences to conduct a study--
(A) 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 fiber drum packaging with a
removable head can be met for the transportation of liquid hazardous
materials (with respect to those liquid hazardous materials
transported by such drums pursuant to regulations in effect on
September 30, 1991) with standards (including fiber drum industry
standards set forth in a June 8, 1992, exemption application
submitted to the Department of Transportation), other than the
performance-oriented packaging standards adopted under docket number
HM-181 contained in part 178 of title 49, Code of Federal
Regulations; and
(B) to determine whether a packaging standard (including such
fiber drum industry standards), other than performance-oriented
packaging standards, will provide an equal or greater level of
safety for the transportation of liquid hazardous materials than
would be provided if such performance-oriented packaging standards
were in effect.
(2) COMPLETION.--The study shall be completed before March 1,
1997, and shall be transmitted to the Committee on Commerce,
Science, and Transportation of the Senate and the Transportation and
Infrastructure Committee of the House of Representatives.
(d) SECRETARIAL ACTION.--By September 30, 1997, the Secretary
shall issue final regulations to determine what standards should
apply to fiber drum packaging with a removable head for
transportation of liquid hazardous materials (with respect to those
liquid hazardous materials transported by such drums pursuant to
regulations in effect on September 30, 1991) after September 30,
1997. In issuing such regulations, the Secretary shall give full and
substantial consideration to the results of the study conducted in
subsection (c).
In the NPRM, RSPA proposed an extension of the transition period
for continued use of non-specification open-head fiber drums for
certain liquid hazardous materials until September 30, 1997.
Recognizing that the transition period might have to be extended beyond
that date, RSPA stated its intention to revisit that issue in the 1997
rulemaking required by section (d).
RSPA requested comments on the proposed rule, including the
possible extension of the transition period to the later of two dates,
September 30, 1997, or the date on which funds are authorized to be
appropriated to carry out the Federal hazardous materials
transportation program for fiscal years beginning after September 30,
1997. RSPA stated that it would ``consider alternatives that commenters
wish to suggest for handling the uncertain length of this extended
transition period * * *'' See 61 FR 689.
In response to the NPRM, RSPA received 13 comments. Several
industry commenters opposed the extension itself on safety, fairness
and uniformity grounds. Those commenters, however, recognized that RSPA
has no discretion and must grant the extension. Some commenters
requested similar extensions beyond October 1, 1996, for use of other
non-specification packagings (e.g., plastic or steel) for
transportation of hazardous materials. Consideration of other
extensions is beyond the scope of this rulemaking.
Two of the commenters supported the proposed one-year extension of
the transition period. Other commenters, including members of Congress,
opposed the unqualified one-year extension and stated that RSPA should
follow the mandate in section (c) and recognize an alternative to the
[[Page 7959]]
September 30, 1997 date for termination of the fiber drum use
extension.
In light of these comments, RSPA is adopting the proposed rule with
modifications. It is deleting the phrase, ``Until September 30, 1997,''
from the beginning of the extension language and adding the following
separate sentence to address the duration of the extension: ``This
authorization expires on the later of September 30, 1997, or the date
on which funds are authorized to be appropriated to carry out chapter
51 of title 49, United States Code (related to transportation of
hazardous materials), for fiscal years beginning after September 30,
1997.'' RSPA is adding the following language to provide a point of
contact about the authorization date: ``Information concerning this
funding authorization date may be obtained by contacting the Office of
the Associate Administrator.''
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule 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 rule is not considered
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11034; February 26, 1979). Because
of the minimal economic impact of this final rule, preparation of a
regulatory impact analysis or a regulatory evaluation is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism''). The Federal
hazardous material transportation law (49 U.S.C. 5101-5127) contains an
express preemption provision that preempts State, local and Indian
tribe requirements on certain covered subjects. Covered subjects are:
(i) the designation, description, and classification of
hazardous material;
(ii) the packing, repacking, handling, marking, and placarding
of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements related to the
number, contents, and placement of those documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation; and
(v) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
This rule concerns the packaging authorized for certain hazardous
materials and, therefore, preempts State, local, or Indian tribe
requirements concerning this subject unless the non-Federal
requirements are ``substantively the same as'' the Federal
requirements. RSPA lacks discretion in this area, and preparation of a
federalism assessment is not warranted.
Section 5125(b)(2) of 49 U.S.C. provides that if DOT issues a
regulation concerning any of the covered subjects after November 16,
1990, DOT must determine and publish in the Federal Register the
effective date of Federal preemption. That effective date may not be
earlier than the 90th day, and not later than two years, following the
date of issuance of the final rule. RSPA has determined that the
effective date of Federal preemption for the continued authorization of
these fiber drums will be October 1, 1996.
C. Regulatory Flexibility Act
This final rule extends the authority for shipment of certain
liquid hazardous materials in open-head fiber drums that do not meet
the performance standards in the HMR. I certify that this rule will not
have a significant economic impact on a substantial number of small
entities.
D. Paperwork Reduction Act
There are no information collection requirements in this final
rule.
E. 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 number contained in the
handling of this document can be used to cross-reference this action
with the Unified Agenda.
List of Subjects in 49 CFR Part 171
Exports, Hazardous materials transportation, Imports, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 171 is amended 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. 5101-5127; 49 CFR 1.53.4
2. In Sec. 171.14, a new paragraph (a)(2)(iii) is added to read as
follows:
Sec. 171.14 Transitional provisions for implementing requirements
based on the UN Recommendations.
* * * * *
(a) * * *
(2) * * *
(iii) Non-specification fiber drums. A non-specification fiber drum
with a removable head is authorized for a liquid hazardous material in
Packing Group III that is not poisonous by inhalation for which the
packaging was authorized under the requirements of Part 172 or Part 173
of this subchapter in effect on September 30, 1991. This authorization
expires on the later of September 30, 1997, or the date on which funds
are authorized to be appropriated to carry out chapter 51 of title 49,
United States Code (related to transportation of hazardous materials),
for fiscal years beginning after September 30, 1997. Information
concerning this funding authorization date may be obtained by
contacting the Office of the Associate Administrator for Hazardous
Materials Safety.
* * * * *
Issued in Washington, DC, on February 22, 1996, under authority
delegated in 49 CFR Part 1.
D.K. Sharma,
Administrator.
[FR Doc. 96-4628 Filed 2-28-96; 8:45 am]
BILLING CODE 4910-60-M
