[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]



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[[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.

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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