[Federal Register Volume 62, Number 105 (Monday, June 2, 1997)]
[Rules and Regulations]
[Pages 29673-29676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14337]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. RSPA-97-2501 (HM-221B)]
RIN 2137-AD04
Hazardous Materials: Use of Non-Specification Open-Head Fiber
Drum Packagings
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Direct final rule.
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SUMMARY: RSPA is allowing the transportation of certain liquid
hazardous materials in non-specification open-head fiber drums until
September 30, 1999, if the fiber drums have been filled before, and are
not emptied and refilled after, the expiration of the current authority
for the use of these packagings.
RSPA is terminating its rulemakings relating to alternate standards
for open-head fiber drums based on the recommendation of the National
Academy of Sciences (NAS) that RSPA should not extend authorization for
the transportation of liquid hazardous materials in open-head fiber
drums that do not meet the performance-oriented packaging standards
adopted in RSPA's rulemaking docket No. HM-181. This action completes
the rulemakings mandated by Section 406 of the Interstate Commerce
Commission Termination Act concerning alternate standards for open-head
fiber drums used in the transportation of liquid hazardous materials.
DATES: This final rule is effective October 1, 1997, unless an adverse
comment or notice of intent to file an adverse comment is received by
August 1, 1997. RSPA will publish in the Federal Register a timely
document confirming the effective date of this direct final rule.
[[Page 29674]]
ADDRESSES: Address comments to the Dockets Office, U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW, Washington, DC
20590-0001. Comments may also be submitted by E-mail to
rspa.counsel@rspa.dot.gov.'' In every case, the comment should refer
to the Docket Number set forth above.
Persons wishing to receive confirmation of receipt of their
comments should include a self-addressed, stamped postcard. The Dockets
Office is open between 9:00 a.m. and 5:30 p.m., Monday through Friday,
except public holidays when the office is closed.
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 20590-00001;
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION:
Background
Prior to 1991, the Hazardous Materials Regulations (HMR, 49 CFR
Parts 171-180) authorized the use of certain nonspecification
packagings (including fiber drums) for shipping certain categories of
hazardous materials, such as flammable liquids with a flash point above
73 deg.F, liquid cleaning compounds and other liquid corrosives, and
hazardous wastes and hazardous substances not included in another
hazard class. These packagings were required to be only ``strong, tight
packages'' that were ``designed and constructed, [with their] contents
so limited, that under conditions normally incident to transportation:
(1) There will be no significant release of the hazardous
materials to the environment;
(2) The effectiveness of the package will not be substantially
reduced; and
(3) There will be no mixture of gases or vapors in the package
which could, through any credible spontaneous increase of heat or
pressure, or through an explosion, significantly reduce the
effectiveness of the packaging.
49 CFR 173.24 (a), (b) (1990 ed.)
On December 21, 1990, RSPA issued a final rule in Docket No. HM-181
(55 FR 52401; revisions and response to petitions for reconsideration,
56 FR 66124 [Dec. 20, 1991]; further corrections and amendments, 57 FR
45442, 45446 [Oct. 1, 1992], 46624 [Oct. 9, 1992]). In the HM-181
rulemaking, RSPA adopted performance-oriented packaging standards for
non-bulk packagings (up to 450 liters [119 gallons] capacity or 400 kg
[882 lbs.] net mass). Hazardous materials have been assigned to Packing
Groups I, II, or III, based on their level of hazard (with Packing
Group I indicating those materials posing the greatest hazards), and
minimum levels of performance were established for each Packing Group.
These ``HM-181 performance standards'' are intended to simulate the
normal transportation environment and to achieve international
uniformity.
In the HM-181 rulemaking, RSPA eliminated most instances where the
HMR previously authorized the use of nonspecification packagings,
including packagings for more than 200 environmentally hazardous
substances (such as polychlorinated biphenyls (PCBs)). In addition,
RSPA listed as hazardous materials certain lower toxicity poisons that
had not previously been regulated.
To allow for an orderly transition to the HM-181 rules, 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 for most
hazardous materials. RSPA specified that on
October 1, 1996, requirements in parts 172 and 173 of [49 CFR]
for maintenance and use of packagings that were not previously in
effect are effective. . . . [P]ackaging authorizations removed from
part 173 of [49 CFR] by [HM-181] may no longer be used in place of
new packaging requirements.
56 FR at 66161. RSPA subsequently extended until October 1, 1999, this
transitional period for non-bulk packagings that were authorized for
use until October 1, 1996, if filled prior to October 1, 1996, and not
emptied and refilled on or after that date. 49 CFR 171.14(a)(2), 62 FR
50622 (Sept. 26, 1996).1
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\1\ In addition, packagings conforming to the pre-HM-181
requirements that were filled prior to October 1, 1991, may be
shipped until October 1, 2001, if not emptied and refilled on or
after October 1, 1991. 49 CFR 171.14(a)(1).
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On December 29, 1995, the President signed the Interstate Commerce
Commission Termination Act (the Act) (Pub. L. 104-88). Section 406 of
the Act (49 U.S.C. 5103 note) 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).
To carry out the mandate in Section 406 (a) and (b) of the Act,
RSPA issued a final rule on February 29, 1996 (61 FR 7958, 7959),
adding the following provision to the HMR:
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
[[Page 29675]]
requirements of Part 172 or Part 173 of [the HMR] in effect on
September 30, 1991. This authorization expires on the later of
September 30, 1997, or the date on which funds are 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.
49 CFR 171.14(c).
NAS Report
NAS completed the study required by Section 406(c) of the Act. In
its report, NAS concluded that other standards (besides those adopted
in HM-181) ``could be established that would provide for safety in the
transport of liquid hazardous materials as required by Section
5103(b),'' but that alternate standards proposed by the International
Fibre Drum Institute (IFDI) do ``not ensure a level of safety equal to
that provided by HM-181.'' NAS also found that, because of data
limitations, the historical safety record of the non-specification
fiber drums authorized prior to HM-181 ``is not in itself enough to
establish beyond reasonable doubt that this [IFDI] packaging can ensure
the safe transportation of liquid hazardous materials in accordance
with the requirements of Section 5103(b).'' NAS recommended that ``DOT
should not extend the authorization to ship hazardous liquids in
nonspecification fiber drums beyond September 30, 1997, subject to the
final transitional provisions for performance-oriented packaging
standards * * * [footnote omitted].''
Direct Final Rule
Based on the NAS recommendation and the merits of the final
regulations adopted under Docket No. HM-181, RSPA is terminating its
consideration of alternate standards for open-head fiber drums used to
ship liquid hazardous materials. However, to allow for an orderly
transition and accommodate the shipment of packagings that have been
filled prior to the expiration of the current authorization in 49 CFR
171.14(c), RSPA is redesignating the current authorization in
Sec. 171.14(c) as paragraph (c)(1) and adding a new paragraph (c)(2) to
allow the shipment of these liquid hazardous materials until September
30, 1999, if the open-head fiber drum has already been filled prior to,
and is not emptied and refilled on or after, the date on which the
authority in the redesignated paragraph (c)(1) expires. This action
provides the same treatment for open-head fiber drums as other
packagings which were filled prior to the expiration of authorization
for their use on October 1, 1996. The transitional provision added by
new Sec. 171.14(c)(2) prevents the anomalous situation that would
otherwise exist, under which fiber drums filled before October 1, 1996,
could be shipped until September 30, 1999, but fiber drums filled on or
after October 1, 1996, under the authority in the current
Sec. 171.14(c), would not be allowed the same period of time to clear
the transportation system.
This direct final rule is being issued under the procedures set
forth in 49 CFR 106.39, and it will be effective on October 1, 1997,
unless RSPA receives an adverse comment or notice of intent to file an
adverse comment by August 1, 1997. Interested parties should refer to
Sec. 106.39(c) for a discussion of what constitutes an ``adverse
comment.''
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). This
rule provides relief to shippers who, before the expiration of the
current authority for use of non-specification open-head fiber drums,
have filled these packagings for transportation. Accordingly, RSPA has
not prepared a regulatory evaluation of the costs and benefits of this
rule.
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 packagings 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 a covered subject, 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, 1997.
C. Regulatory Flexibility Act
This final rule continues until September 30, 1999, authority for
shipment of certain liquid hazardous materials in open-head fiber drums
that do not meet the performance standards in the HMR, so long as the
fiber drums were filled before (and are not emptied and refilled after)
the expiration of the current authority for use of these packagings. In
this respect, this rule provides relief to shippers who, before the
expiration of the current authority for use of non-specification open-
head fiber drums, have filled these packagings for transportation.
Data provided to NAS indicate that the use of non-specification
open-head fiber drums for all liquid hazardous materials has declined
from the average of approximately 750,000 drums per year prior to 1991
(and the HM-181 rulemaking did not eliminate the authority to use this
packaging for combustible liquids [flash point above 100 deg. F] or, of
course, nonhazardous materials). RSPA estimates that there are
approximately six U.S. manufacturers of fiber drums for liquid
hazardous materials, three of whom are small entities. Some of these
manufacturers already produce other packagings authorized for the
transportation of liquid hazardous materials, and the remainder likely
have the capability of producing these other packagings.
[[Page 29676]]
RSPA believes that there is a limited number of shippers of liquid
hazardous materials in non-specification open-head fiber drums
(probably less than 100), and assumes that most of them are small
entities. Alternative packagings that meet the HM-181 performance
standards include (together with their relative cost as compared to
non-specification open-head fiber drums, according to data used by
NAS):
--Open-head steel drums (more expensive)
--Closed-head steel drums (less expensive)
--Closed-head plastic drums (about the same)
--Closed-head fiber drums (more expensive).
RSPA assumes that both cost and non-cost factors will influence
shippers' choice of alternative packagings.
Based on the above, 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 new information requirements in this rule.
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.
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.
2. In Sec. 171.14, the text of paragraph (c) following the
paragraph heading is redesignated as paragraph (c)(1), and a new
paragraph (c)(2) is added to read as follows:
Sec. 171.14 Transitional provisions for implementing requirements
based on the UN recommendations.
* * * * *
(c) Non-specification fiber drums. (1) * * *
(2) A non-specification fiber drum with a removable head authorized
by paragraph (c)(1) of this section may be offered for transportation
and transported domestically prior to October 1, 1999, if it--
(i) Was filled with an authorized hazardous material prior to the
expiration of the authority in paragraph (c)(1) of this section; and
(ii) Is not emptied and refilled after the expiration of the
authority in paragraph (c)(1) of this section.
* * * * *
Issued in Washington, DC on May 27, 1997, under authority
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 97-14337 Filed 5-30-97; 8:45 am]
BILLING CODE 4910-60-P
