[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Proposed Rules]
[Pages 50714-50720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24238]




[[Page 50713]]

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Part VIII





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 171 through 180



Alternate Standards for Open-Head Fiber Drum Packaging; Proposed Rule

  Federal Register / Vol. 60, No. 189 / Friday, September 29, 1995 / 
Proposed Rules   

[[Page 50714]]


DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171 through 180

[Docket No. HM-221; Notice No. 95-11]
RIN 2137-AC62


Alternate Standards for Open-Head Fiber Drum Packaging

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Termination of rulemaking concerning alternate standards for 
open-head fiber drum packaging.

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SUMMARY: As directed by Section 122 of the Hazardous Materials 
Transportation Authorization Act of 1994, RSPA has examined whether 
there are alternate standards for open-head fiber drums that provide an 
equal or greater level of safety as the HM-181 performance standards, 
for the domestic transportation of liquid hazardous materials. Because 
RSPA finds that there are no known alternate standards that provide an 
equal or greater level of safety, RSPA is closing this rulemaking 
without proposing alternate standards. RSPA initiated this rulemaking 
in an advance notice of proposed rulemaking published on October 7, 
1994 [59 FR 51157], and invited the submission of further proposals and 
comments in a supplemental advance notice of proposed rulemaking 
published on January 25, 1995 [60 FR 4879].

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:

I. Background

A. The Statute

    Section 122(a) of the Hazardous Materials Transportation 
Authorization Act of 1994 (Pub. L. 103-311) (the ``Act'') requires DOT 
to 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 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 standard 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).

B. HM-181 Performance Standards

    As authorized by 49 CFR 171.14, ``non-specification'' packagings 
may be used until October 1, 1996, for the transportation of the 
following categories of liquid hazardous materials:

    1. Flammable liquids with a flash point above 73 deg.F, in 
packagings up to 110 gallons (55 gallons for cargo aircraft, one 
gallon for passenger aircraft);
    2. Liquid cleaning compounds and four other liquid corrosives 
(coal tar dye, dye intermediate, mining reagent, and textile 
treating compound), in drums with a removable or ``open'' head 
(steel and fiber drums may not be larger than 55 gallons, and the 
limit for plastic drums is 6.5 gallons) for shipments by rail, 
highway, and water only; and
    3. Hazardous wastes and hazardous substances not included in 
another hazard class (for materials with a vapor pressure exceeding 
16 psi at 100 deg.F, the packaging must be capable of withstanding 
the inside vapor pressure at 130 deg.F without leaking).

The non-specification packagings authorized for use until October 1, 
1996, need not meet the former ``DOT'' design specifications, but they 
must be designed, constructed and used so that there will be no 
identifiable release of hazardous materials to the environment under 
conditions normally incident to transportation and the effectiveness of 
the package will not be substantially reduced. 49 CFR 172.24(b); see 
also 49 CFR 173.24(a) (1990 ed.).
    After September 30, 1996, however, fiber drums and other non-bulk 
packagings used for the transportation of these categories of liquid 
hazardous materials must meet the performance-oriented standards 
currently set forth in the Hazardous Materials Regulations (HMR) at 49 
CFR Part 178, Subpart M. See 49 CFR 171.14(b)(6). (Non-bulk packagings 
are those which have a capacity up to 450 liters (119 gallons) or a net 
mass up to 400 kg (882 lbs.). This discussion of the HM-181 performance 
standards applies only to non-bulk packagings.)
    For liquid hazardous materials, the tests and standard prescribed 
in the following sections of 49 CFR apply:

Section178.603--drop test
Section178.604--leakproofness test
Section178.605--hydrostatic pressure test
Section178.606--stacking test
Section178.608--vibration standard

These performance-oriented standards replaced DOT design specifications 
and were adopted in RSPA's rulemaking proceeding in Docket No. HM-181. 
55 FR 52042 (Dec. 21, 1990); 56 FR 66124 (Dec. 20, 1991); 57 FR 45446 
(Oct. 1, 1992). (Former DOT specifications may be found in the October 
1, 1990 edition of Title 49 CFR.)
    The performance standards adopted in HM-181 are based on United 
Nations (UN) recommendations (and sometimes referred to as ``UN 
standards''). They are intended to simulate the normal transportation 
environment and to achieve international uniformity. Under the UN 
standards, packagings are subjected to design qualification tests as 
well as periodic retesting (every year for single packagings; every two 
years for combination packagings). 49 CFR 178.601(d), (e). In addition, 
each packaging designed to contain liquids must be subjected to 
leakproofness testing during production and before reuse. 49 CFR 
173.28(b), 178.604(b)(1).
    The severity of the tests to which packagings are subjected varies 
according to the degree of hazard of the material to be transported. 
Packagings for materials with the greatest hazards (in Packing Group I) 
must perform at a higher level than packagings designed for less 
hazardous materials (in Packing Groups II and III). See 49 CFR 
178.603(e), 178.604(e), 178.605(d).
    A drop test is required for all hazardous materials packagings 
marked with the UN identification. It is intended to simulate a 
packaging's fall in transportation, such as a fall off a hand truck or 
fork lift, or simply off another packaging. The minimum height for the 
drop test is 0.8 meters (31.5 inches or 2.6 feet) for Packing Group III 
materials, but greater heights are specified for Packing Group I and II 
materials. 49 CFR 178.603(e). A stacking test, which is required for 
all hazardous materials packagings other than bags, determines whether 
the packagings will withstand the loads that occur when packages are 
stacked to a height of three 

[[Page 50715]]
meters (approximately ten feet) on a vehicle or in a warehouse. 49 CFR 
178.606(c).
    Hydrostatic pressure and leakproofness tests apply only to a 
packaging designed to contain liquid hazardous materials. In the 
hydrostatic pressure test, a filled packaging is subjected to an 
internal pressure. This amount of pressure depends on the liquid 
material's vapor pressure and Packing Group; it may be as low as 20 
kiloPascals (kPa) (less than three psi) for low volatility, low hazard 
materials, and more than 250 kPa (approximately 36 psi) for Packing 
Group I volatile liquids. 49 CFR 178.605(d). This test is intended to 
determine whether the increase in pressure that can occur with a rise 
in temperature will deform the packaging and cause it to leak.
    A leakproofness test is performed as one of the packaging design 
qualification tests and also on every packaging produced. Depending on 
the Packing Group of the material to be transported, internal air 
pressure of 20 or 30 kPa (roughly 2.9 or 4.4 psi) is applied to each 
packaging to determine if it leaks. 49 CFR 178.604(e). In addition, all 
hazardous materials packagings must meet the vibration standard to 
assure that the normal vibration incident to transportation will not 
cause a packaging to fail. 49 CFR 178.608.
    One of RSPA's purposes in the HM-181 rulemaking proceeding was to 
promote ``safety in transport through the use of better packaging.'' 
Advance Notice of Proposed Rulemaking, 47 FR 16268, 16289 (Apr. 15, 
1982). In the preamble to the final rule, RSPA noted that, in the past, 
many packaging requirements had been ``based on industry standards, 
with economic considerations sometimes taking precedence over safety 
considerations, rather than on a systematic assignment of packagings 
based on the hazards of the materials to be packaged and the 
suitability of the packaging.'' 55 FR 52403. RSPA later affirmed that 
an objective in HM-181 was ``to improve transportation safety by 
upgrading package integrity for a number of materials, including 
hazardous substances and wastes, previously shipped in non-
specification packagings.'' 56 FR 66145. (A wide variety of materials 
are included in the category of hazardous substances, many of which, 
such as polychlorinated biphenyls (PCBs), are not regulated except as 
environmentally hazardous materials.

C. Prior Industry Requests for Relaxation of HM-181 Standards

    Following issuance of the final rule in HM-181, the Fibre Drum 
Technical Council (FDTC), submitted a petition for reconsideration in 
which it asked RSPA to continue ``the status quo for domestic shipments 
in non-D.O.T. specification drums'' of certain hazardous materials. In 
December 1991, RSPA denied FDTC's petition and stated that, because it 
intended to upgrade package integrity, it ``never intended to except 
domestically-used fiber drums from the performance standards it 
adopted'' in HM-181. 56 FR 66146.
    In June 1992, FDTC then applied for an exemption from the HMR to 
allow the continued use of open-head non-specification fiber drums for 
rail and highway transportation within the United States of the three 
categories of liquid hazardous materials specified above (plus certain 
hazardous solids). FDTC stated that these drums would meet a series of 
six standards prepared for the purpose of establishing an industry 
specification.
    To support its exemption application, FDTC asserted that, over the 
1980-1991 period, these drums had a 99.99% safety record. FDTC also 
stated that the fiber drum industry was ``completely unable to meet the 
new UN/DOT specifications without incurring significant costs and 
investments, which would make these drums prohibitively expensive in 
the marketplace.'' It estimated that ``the average percentage (cost) 
increase related to redesigning the fibre drums to meet specifications 
is 50 percent'' and stated that ``the number of units to which the 50 
percent increase applies represents a substantial portion of the fibre 
drum industry.''
    RSPA's Associate Administrator for Hazardous Materials Safety 
denied FDTC's exemption application because he found that FDTC's 
proposed impact test was not equivalent to the drop tests of 3.9 and 
2.6 feet, respectively, required for Packing Group II and III 
packagings, and that FDTC's other proposed standards 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)(i). In her detailed decision, the Acting Administrator 
discussed the HMR's prior authority for the use of non-specification 
fiber drums for certain materials, the adoption of the HM-181 
performance standards which eliminated that prior authority, and 
representative incidents involving spills when a fiber drum fell over 
or was dropped a short distance. She also considered the 99.99% 
``success rate'' for fiber drums but found that it ignored the types of 
incidents which occur during normal transportation, including minor 
accidents that justified RSPA's objective in HM-181 in upgrading 
packaging integrity.
    FDTC's successor organization, the International Fibre Drum 
Institute (IFDI), states that Congress passed Section 122 of the Act 
because it was concerned that RSPA had not considered the safety record 
of open-head fiber drums when it denied FDTC's application for an 
exemption. According to IFDI, Congress enacted this provision ``to 
require DOT to take a 'fresh and fair' look at open-head fibre drum 
packaging to determine whether it should be used after October 1, 1996 
* * *''

D. ANPRM

    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. In the ANPRM, 
RSPA requested ``[d]etailed comments and proposals * * * that will 
assist RSPA in developing an appropriate regulatory proposal consistent 
with the requirement'' in Section 122 of the Act. 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.
    In response to the ANPRM, RSPA received comments from 17 parties. 
In addition, RSPA's Administrator and other DOT officials held separate 
meetings concerning this rulemaking with: (1) IFDI's counsel and 
officials of Sonoco Products Company (a member of IFDI), and (2) 
representatives of the Association of Container Reconditioners (ACR), 
the 3M Corporation, USX Corporation, and the Steel Shipping Container 
Institute (SSCI). Notes of these two meetings have been placed in the 
public docket for this rulemaking.
    Only IFDI proposed alternate standards for open-head fiber drum 

[[Page 50716]]
    packaging for the transportation of liquid hazardous materials. The set 
of six standards it has offered appear to be identical to the standards 
proposed by FDTC in its 1992 exemption application and, according to 
IFDI, ``accurately predict, and will continue to accurately predict, 
the safety of liquid hazardous materials as transported in open-head 
fibre drums.'' IFDI referred to ``a 30-year record of safe shipping 
experience,'' and a safety record that ``has continued to remain at 
99.99 percent for the past 14-year period.'' It 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.''

IFDI also contended that other matters were ``irrelevant'' to this 
rulemaking, including the safety record for other packagings (similar 
to that for fiber drums), the comparative costs of other packagings, 
and possible impacts that alternate standards would have on 
international trade agreements.
    Several commenters expressed opposition to alternate standards for 
fiber drums. The 3M Corporation stated: ``The UN performance standards 
are very basic standards that simulate the transportation environment. 
There are no other standards that simulate the current transportation 
environment.'' DuPont acknowledged that it used a ``small amount'' of 
fiber drums for shipping non-hazardous liquids, but that its 
evaluations have led it to follow a ``long-standing practice'' of not 
using fiber drums for hazardous liquids. Elf Atochem stated that 
``liquid-type fiber drums could not offer the filler, carrier and 
emptier an `equal or greater level of safety' to a drum which does pass 
the required [HM-181] tests.''
    SSCI argued 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 
international shipments, and compromise transportation safety by 
authorizing lower quality packagings. ACR 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 must be equivalent.''
    Monsanto Company supported the position that fiber drums should 
conform to the HM-181 performance standards, but it suggested 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, under certain conditions. Monsanto stated that it would not 
be acceptable ``to allow for any other use of fiber drums which do not 
meet the requirements of performance standards.''
    Besides opposing the issuance of alternate standards, Russell-
Stanley and The Society of the Plastics Institute also stated that if 
any alternate standards were adopted, they should apply to all open-
head drums, including those made from steel and plastic as well as 
fiber. According to Sirco Systems, Inc., alternate standards would be 
``a precedent for similar requests by other packaging industries 
[which] could undermine the entire performance-oriented packaging 
standards system * * *''

E. SANPRM

    On January 25, 1995, RSPA published in the Federal Register a 
supplemental advance notice of proposed rulemaking (SANPRM), Docket No. 
HM-221; Notice No. 95-2 (60 FR 4879). In the SANPRM, RSPA reopened the 
comment period and scheduled a public hearing to allow interested 
parties to submit additional proposals as well as comments with regard 
to the alternate standards offered by IFDI.
    The SANPRM broadly encouraged interested parties to ``submit any 
comments relevant to the direction in Section 122 of the Act.'' 60 FR 
4880. Additional comments were invited on whether the alternate 
standards proposed by IFDI meet the statutory measure, in light of the 
prior determination by RSPA (on FDTC's application for an exemption) 
that similar standards did not provide an equal or greater level of 
safety than the HM-181 performance standards. RSPA also requested 
comments on the ``factors set forth in the legislative history'' of 
Section 122, as represented by IFDI; whether alternate standards, if 
adopted, should apply to packagings other than fiber drums; and 
Monsanto's proposal for a limited exception to allow non-standard fiber 
drums to be used for shipping hazardous wastes to incineration 
facilities.
    At a public hearing on February 17, 1995, statements were presented 
by IFDI, three manufacturers of fiber drums, two shippers of hazardous 
materials in fiber drums, ACR and SSCI. RSPA also received 13 
additional written comments, including five from members of Congress: 
Sens. Hollings (D-SC) and Thurmond (R-SC) and Reps. Baker (R-CA), 
Gillmor (R-OH), and Spratt (D-SC). All the statements and comments to 
the ANPRM and the SANPRM have been carefully considered as discussed 
below.

II. IFDI's Proposed Alternate Standards

    FDTC's June 1992 exemption application and IFDI's comments in this 
proceeding both state 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 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

    IFDI's standard for fiber drum structure (No. 140) specifies the 
manner and materials for construction of fiber drums, rather than a 
test of how the drums will perform. It sets forth specifications for 
the drum heads, joint materials (caulking and gaskets) and sidewall 
(paperboard caliper, burst strength, and adhesive). This standard 
requires that the drum manufacturer know the expected use for the drum, 
as it specifies non-water soluble adhesive only for drums ``intended 
for outdoor or high humidity storage.'' It also states that a 
polyethylene, polymer or poly/foil liner, laminated to the paperboard, 
``may be used as the interior ply to provide liquid-holding capability 
and/or improved product protection and drum cleanliness properties.''
    IFDI's other five standards represent forms of performance 
standards; according to IFDI, four of them set forth tests to which 
samples are subjected during the design phase (before regular 
production begins), and the fifth (leakage spray, No. 120) is ``a 
production run test on each container.'' In summary, these five 
standards consist of:
     Compatibility (No. 101)--The test consists of folding and 
stapling a 6'' 

[[Page 50717]]
square of the drum's lining material into a five-sided cube (or 
``boat'') and exposing the bottom creases under the surface level of a 
sample of the liquid hazardous material in a closed 8 oz. jar which is 
then elevated in temperature for ``any appropriate set of time and 
temperature conditions'' (for example, 130  deg.F for 30 days). Other 
``product contact'' materials (such as caulking and gaskets) may also 
be placed in the jar. Success is indicated when there is no stress 
cracking of the lining material. IFDI indicates that this test is 
performed for each different liquid hazardous material for which the 
drum is to be used.
     Joint Integrity (No. 110)--The test consists of filling a 
drum with water containing a ``wetting agent'' (such as ``a squirt of 
dish detergent'') and subjecting the drum to the one-hour vibration 
test specified in 49 CFR 178.608. Success is based on the absence of 
any ``observable staining of the interior and exterior of the drum in 
the vicinity of the bottom chime.'' However, IFDI also states that the 
drum is closed and, accordingly, this test establishes the integrity of 
both top and bottom joints, including the gasket used in the closure.
     Leakage Spray (No. 120)--The test consists of spraying 
``[a]ll interior seams and joints of the (plastic lined) surface of 
each drum * * * with denatured alcohol or its equivalent in such a way 
that the target drum areas are wetted.'' The drum passes the test if no 
stains are observed on the interior surface that would indicate that 
the paperboard has been wetted through the plastic lining.
     Weatherproofing (No. 130)--This test is applied only to 
drums intended for outdoor or high humidity storage and consists of 
subjecting random samples to a 72-hour shower of water at the rate of 
one inch per hour. The drum passes the test if it loses no more than 
15% of its compression strength and is still capable of passing the 
stacking test in 49 CFR 178.606.
     Impact (No. 150)--After conditioning at specified 
temperature and humidity for 48 hours, the drum is filled to its net 
capacity with water and subjected to two tests. It is first tipped over 
on concrete onto its cover chime. The same drum must then withstand a 
diagonal drop on the bottom chime ``sufficient to provide at least 500 
foot-pounds impact,'' except that the minimum drop height is one foot 
and the maximum is two feet. This means that a 55-gallon fiber drum 
designed to contain a liquid with the specific gravity of water (8.3 
lbs. per gallon) would be tested from a height of approximately 13 
inches. A drum passes the test if there is no leakage.
    According to IFDI, ``[t]he impact test cannot be evaluated by 
itself,'' but three standards in combination (structure, joint 
integrity, and impact) account for the ``outstanding record'' of fiber 
drums and should be compared to DOT's drop test. IFDI also states that 
the leakage spray test is the industry's version of DOT's leakproofness 
test, although no pressure is applied ``because of the nature of the 
materials of construction.'' Nonetheless, IFDI states that this is an 
``exceedingly sensitive'' test and ``will reliably detect the smallest 
leaks.'' IFDI further comments that the liquid hazardous materials for 
which fiber drums have been authorized have low vapor pressures, for 
which the hydrostatic pressure in 49 CFR 178.605 is not necessary. IFDI 
indicates it will not object if RSPA issues alternate standards limited 
to liquids with a vapor pressure (Reid Test) not to exceed 16 psia at 
100  deg.F.
    IFDI implies that its standards have been in use in the fiber drum 
industry since 1973, when the liquid materials shipped in fiber drums 
were first regulated under the HMR. IFDI has claimed a safety record 
for fiber drums of 99.99% since 1980, based on its review of industry 
records and DOT's Hazardous Materials Incident Reporting System (HMIS) 
(and a comparable record before that time). It states that the lack of 
customer complaints and commercial claims confirms that fiber drums are 
dependable and safe. Three members of IFDI and two users of fiber drums 
echo these contentions: Astro Fibre Drum Inc., General Cooperage Co., 
Sonoco Products Co., Neste Polyester Inc., and Sybron Chemicals Inc.
    General Cooperage indicates that 40 million fiber drums of all 
types are produced each year; between 1980 and 1991, a total of more 
than 13 million were built for shipping solid and liquid hazardous 
materials and, during that time, DOT received only 1,487 incident 
reports ``indicating a failure of some type with fibre drums of all 
kinds.'' (In its 1992 exemption application, FDTC stated that only 455 
of these incidents involved liquid hazardous materials for which non-
specification fiber drums were authorized.) According to General 
Cooperage, the HMIS ``indicates that only 72 failures occurred between 
January 1992 and October 1994 from a total of two million drums built 
for liquid hazardous materials.'' Astro and Sonoco also refer to the 
fiber drum industry's ``99.99 percent safety record.''
    Neste states that, for each of the past seven years, it has shipped 
approximately 10,000 fiber drums containing its gelcoat product, a 
polyester resin, without any reported incidents of spillage or other 
problems in shipping and handling. It indicates it has not had the same 
success with steel drums, which it previously used. Sybron testifies 
that it has not had any ``safety-related problems'' during more than 20 
years of shipping various materials, including corrosives and 
combustibles, in open-head fiber drums. It states its customers prefer 
fiber drums to other packagings, such as steel and plastic drums, and 
that fiber drums offer ``definite advantages'' over these other 
packagings.
    IFDI and Sonoco both assert:

    The yardstick by which any alternate standards should be 
measured or evaluated in determining whether the standards provide 
an equal or greater level of safety for transport is whether the 
standards predict safety in the transport--not whether the alternate 
standards are identical to the UN or HM-181 standards.

These parties further contend that IFDI's proposed alternate standards 
``should be evaluated as a whole in terms of their ability to predict 
safety'' in transportation of hazardous materials, and ``not on an 
individualized basis.''
    ACR and SSCI specifically challenge IFDI's proposed standards. ACR 
repeats an earlier characterization of IFDI's alternate standards as 
``similar to but less stringent than those adopted by DOT under HM-
181.'' SSCI states that the HM-181 performance standards are ``minimum 
standards based on real world experience and conditions,'' but that 
IFDI's proposed standards ``do not adequately reflect a `real world' 
transportation environment.'' ACR contends that the fiber drum 
industry's arguments come down to: (1) Non-specification open-head 
fiber drums have a good record of safety in transportation, and (2) 
these fiber drums have been constructed to industry standards which, 
based on shipping experience, appear to work well in practice even 
though the industry standards are not as stringent as the HM-181 
performance standards. In this context, however, SSCI states that the 
IFDI standards ``were first adopted in May 1992,'' both questioning the 
procedures under which these standards were adopted and implying that 
the prior shipping experience has little relevance.
    ACR points out that IFDI's compatibility test (Standard 101) may be 
run ``under any appropriate set of time and temperature conditions,'' 
which ``does not meet the rigors of good packaging testing methodology, 
makes nearly impossible meaningful comparisons of test data, and 
eliminates the possibility of repeating the tests for purposes of 
enforcement.'' According to 

[[Page 50718]]
SSCI, IFDI acknowledged at the February 17, 1995 public hearing that 
the compatibility test was not routinely performed. SSCI also takes the 
position that the compatibility requirement in 49 CFR 173.24(e) 
``renders this test moot.''
    Both ACR and SSCI contend that, because IFDI's leakage spray test 
(Standard 120) does not require pressure inside the fiber drum, it is 
not equivalent to DOT's leakproofness test. ACR states that the leakage 
spray test would not be adequate if the vapor pressure of liquid 
materials ``exceeds that of the previously authorized materials.'' SSCI 
asserts that this is a problem also with IFDI's joint integrity test 
(Standard 110) if liquids have ``elevated vapor pressures in the normal 
range of temperatures experienced during transport.''
    SSCI describes IFDI's impact test (Standard 150) as a ``pale 
substitute'' for DOT's drop test and ``substantially inadequate to 
simulate the full range of transporting experiences.'' It notes that 
IFDI's impact test does not require dropping a fiber drum more than two 
feet, which is some 30% less than the 0.8 meters required for 
packagings certified for Packing Group III materials. SSCI's comments 
include a memorandum by a professor in the Virginia Tech Department of 
Mechanical Engineering, who indicates that ``energy that must be 
dissipated at impact is proportional to the drop height (so that) a 
drum dropped from a height of 2.7 ft. would have to absorb 2.7 times 
the energy resulting from an impact from a 1 ft. height.'' This 
professor states that steel would ``dissipate about 3.5 times the 
energy in plastic deformation'' as compared to fiberglass epoxy, which 
he assumes to have similar properties to a fiber drum. He concludes 
that

a valid drop test for drums of different materials must be performed 
at the same drop height. Drums that are dropped during handling are 
going to be dropped from the same height regardless of the material 
that the drum is made of. Therefore, the height that container 
industry determines by consensus to be representative of mishandling 
in the field should apply to all container materials. To request a 
different height for different materials is to ignore how containers 
are handled in the field.

    Shell Chemical Company believes that IFDI has not demonstrated that 
fiber drum packaging provides a level of safety equivalent to the HM-
181 standards for the transportation of liquid hazardous materials. 
DuPont also urges DOT not to accept ``a standard for the United States 
that is less than the international standard.''

III. Other Industry Standards for Non-hazardous Materials

    At the February 17, 1995 public hearing, IFDI noted that there are 
numerous ``methods used to evaluate packaging other than the UN 
performance standards,'' including the Uniform Freight Classification 
(UFC), the National Motor Freight Classification (NMFC), and the 
National Safe Transit Packaging systems. According to IFDI, these 
systems were developed to evaluate a packaging's ability ``to retain 
its contents so that the packaging will be delivered intact; that there 
will be no loss of contents.'' SSCI also stated that the ``American 
performance standards for shipping containers (including the drop, 
compression, permeability and vibration tests) were first developed by 
the American Society of Testing and Materials (ASTM) in the 1940's.'' 
All of these other systems apply to general freight. Both UFC and NMFC 
explicitly state that hazardous materials must be tendered in 
accordance with DOT's regulations, i.e., the HMR. UFC Rule 39; NMFC 
Item 540. ASTM Standard Practice for Performance Testing of Shipping 
Containers and Systems (D 4169) states that the ``suitability of this 
practice for use with hazardous materials has not been determined.''
    As IFDI testified, the UFC and NMFC systems generally use a 
combination of ``both design and performance systems.'' This is similar 
to the former DOT 21C specification for fiber drums, which set forth 
the minimum thickness and strength for the top, bottom, and sidewall of 
the fiber drum and also included a compression test and a series of 
four drops from four feet in different orientations (top chime, bottom 
chime, sidewall and closure). See 49 CFR 178.224 (1990 ed.). The UFC 
and NMFC standards applicable to fiber drums for liquids set forth 
several different options. All but one of these options include 
construction standards, capacities and weight limits as well as the 
following similar to IFDI's impact test:

    Drums filled to net capacity with water must withstand without 
leakage a tipover fall on concrete on the cover chime followed by a 
diagonal drop on the bottom chime sufficient to provide at least 500 
foot-pounds impact, except that a maximum height of drop shall not 
exceed two feet and the minimum height of drop not less than one 
foot.

The last option in the UFC and NMFC systems allows the use of a fiber 
drum that passes a four-foot drop test from two different orientations, 
without regard to construction specifications. In this respect, the UFC 
and NMFC systems resemble the HM-181 performance standards.
    The ASTM D 4169 standard provides for a single test sample to be 
subjected to a series of tests, such as climate hazards, handling, 
vehicle stacking, and vibration (loose-load and stacked). The specific 
tests performed and their order are determined by the shipper's 
intended ``distribution cycle'' as to how the package will be shipped, 
the ``acceptance criteria'' (whether the package is damage-free or 
merely intact), and the desired ``assurance level.'' The last is 
``based on the product value, the desired level of anticipated damage 
that can be tolerated, the number of units to be shipped, knowledge of 
the shipping environment, or other criteria.'' Within ``handling'' is a 
drop test that also depends on the type and shipping weight of the 
package. Among the test methods referred to in ASTM D 4169 is the 
Standard Test Method for Drop Test for Loaded Cylindrical Containers (D 
997), applicable to barrels, drums and kegs of all construction 
materials. The procedure for drop tests states that the height from 
which the drum is dropped ``will depend upon the purpose of the test, 
but normally will be 4 ft (1.2 m).'' Otherwise, ASTM D 4169 generally 
prescribes lower drop heights for ``large and heavy shipping units and 
unitized loads to withstand mechanical handling hazards,'' up to one 
foot; as applied to drums, these standards appear to contemplate that 
the drums are secured to a pallet for handling.
    Procedures of the International Safe Transit Association (formerly 
the National Safe Transit Association) for testing packaged products 
weighing over 100 lbs. (Project No. 1) consist of a vibration test 
followed by an incline-impact test. For the latter, the package slides 
down an inclined plane and strikes a vertical surface at a specified 
velocity. However, this standard appears to be designed only for 
materials packaged in boxes, and it is not applicable to drums.

IV. Finding on Alternate Standards

    Packagings manufactured to IFDI's proposed standards will not meet 
the drop, leakproofness and hydrostatic tests adopted in HM-181. No 
pressure is applied in IFDI's leakage spray test. And IFDI's impact 
test does not measure the ability of a fiber drum to survive a fall on 
its bottom chime from the minimum 2.6 feet height specified in the HM-
181 drop test. The other industry standards discussed above also do not 
assure that packagings will perform to the same level as packagings 
that meet the HM-

[[Page 50719]]
181 performance standards (other than perhaps the option in the UFC and 
NMFC systems that includes a four-foot drop test).
    As directed by Section 122 of the Act, RSPA must determine whether 
any of these alternate standards will provide a ``level of safety'' 
equal or greater than that provided when packagings meet the HM-181 
performance standards. RSPA believes that any specified ``level of 
safety'' in the transportation of hazardous materials can only be 
measured with reference to the performance of the packaging used to 
transport those hazardous materials. If the packaging fails, safety is 
compromised. The ultimate purpose of any packaging standards must be, 
as IFDI puts it, their ability ``to predict the safety of [the 
packaging] in the transportation environment.'' In other words, how 
will the packaging perform, and to what extent will it protect its 
contents during transportation? To make the finding required by Section 
122 of the Act, RSPA must determine whether a packaging that meets 
other standards will perform as well in the normal transportation 
environment as a packaging that meets the HM-181 performance standards.
    The flaw in IFDI's proposed alternate standards is that they 
contain no means of assuring the same performance that the HM-181 
standards measure. IFDI's impact test, a tipover followed by a one- to 
two-foot drop on the bottom chime, is essentially a lesser form of the 
2.6-foot drop test in 49 CFR 178.603. IFDI states that its structure, 
joint integrity and impact tests, in combination, must be compared to 
DOT's drop test. But RSPA cannot find anything in the first two that 
compensates for the inability of IFDI's 55-gallon fiber drum to survive 
a drop of more than 13 inches. RSPA recognizes the historical use of 
construction specifications, alone or with performance tests, in IFDI's 
proposed standards and in the former DOT specifications. However, the 
only purpose of construction standards is to assure satisfactory 
performance. A fiber drum manufactured to the IFDI standards cannot 
perform as well, or achieve the same level of safety as, a drum meeting 
the HM-181 standard of a drop from 2.6 feet or more.
    Similarly, since liquids expand in hot weather, a packaging that 
will not withstand an increase in pressure is simply not as safe as one 
that will. While IFDI has stated that it would not object if RSPA 
limited the use of non-specification fiber drums to liquids with a 
vapor pressure no greater than 16 psi, RSPA has no basis (from IFDI's 
submission or otherwise) to find that this limitation is sufficient to 
avoid those instances when an increase in internal pressure would 
affect the performance of a drum.
    Safety and the ability of a packaging to contain its contents can 
be increased by certain handling practices that minimize damage to 
individual packagings. For example, banding or wrapping individual 
packagings secured to a pallet will reduce the likelihood of one 
packaging falling over or off another. Restricting the height that 
packagings are stacked will reduce the distance a single package can 
fall off another. The familiarity and expertise of a private or 
contract carrier, that handles only a few hazardous materials, reduces 
risks associated with a common carrier that transports any freight 
offered to it. Many exemptions issued by RSPA include operational 
controls along these lines. Some of these controls are found in 
Monsanto's proposal for 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 finally 
closed 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.
    The only party to comment on Monsanto's proposal, the Association 
of Waste Hazardous Materials Transporters (AWHMT) raised several 
questions. AWHMT expressed concerns that the liquid hazardous waste 
would cause the fiber drums to deteriorate during a 24-hour holding 
period. It also noted that drums are typically double stacked (one on 
another) during transportation and asked whether double stacking would 
``compromise the integrity of fiber-drum packagings containing 
liquids.'' For AWHMT, the packaging material and pre-trip requirements 
were not important, but

all packaging should meet the same level of transportation 
performance * * * based on safety, not the use proposed for the 
packaging after transportation * * * In short, transporters should 
not have to assume increased risk for the convenience of a shipper 
or consignee.

    Monsanto's suggestion appears to exclude fiber drums built to 
IFDI's proposed standard, because the drums Monsanto would use would 
meet former DOT specifications 21C (which includes a four-foot drop 
test) or 21P (which mandates the tests applicable to the inside plastic 
container). 49 CFR 178-224-2(b), 178-225-5(b) (1990 ed.). In this 
circumstance, and without further comments on Monsanto's proposal in 
response to the ANPRM, there is insufficient information on which to 
propose a rule concerning the use of fiber drums for the shipment of 
liquid hazardous wastes to incineration facilities.
    IFDI, any of its member companies or any other person that wants to 
use non-specification fiber drums for this or any other purpose may 
petition RSPA for a rulemaking, in accordance with 49 CFR 106.31, or 
apply for an exemption and provide the information specified in 49 CFR 
107.103.
    RSPA assumes that there are an infinite number of possible 
alternate standards that could be measured against the level of safety 
provided by the HM-181 performance standards. However, the final 
determination of whether any standard provides an equal or greater 
level of safety as the HM-181 standards must rest on whether it 
produces a packaging that will perform as well in the normal 
transportation environment as one that meets the HM-181 standards. 
Because IFDI's proposed standards do not assure this same performance, 
they will not provide as great a level of safety for the transportation 
of liquid hazardous materials as the HM-181 standards. In light of that 
finding, Section 122 does not require RSPA to propose any amendments or 
additions to the HMR.

V. Congressional Concerns and Other Matters

    IFDI points to language in the Congressional Record, and letters 
from Senators and Representatives to the docket, urging RSPA to 
consider the fiber drum industry's ``excellent shipping record.'' These 
letters also question whether the scope of this rulemaking is 
consistent with Section 122 of the Act.
    Sen. Hollings states that RSPA should not consider whether 
alternate standards should apply to other packagings in this 
rulemaking. Both he and Sen. Thurmond believe that RSPA's request for 
estimates of cost differences between present and proposed packagings 
``goes beyond the statutory mandate.'' As Sen. Thurmond states, 

[[Page 50720]]
``the Act directed DOT to consider only one issue--safety.'' Sen. 
Thurmond and Reps. Gillmor, Spratt and Baker all advised RSPA to 
consider the factors mentioned in IFDI's comments to the ANPRM (on 
which RSPA invited comments in the ANPRM). Sen. Hollings and Rep. 
Gillmor questioned whether RSPA had prejudged the issues in this 
rulemaking, and Rep. Spratt stated that the standard of an equal or 
greater level of safety ``is specifically not a standard of equivalence 
to the performance tests of HM-181.''
    The Supreme Court has made clear that the ``starting point in 
determining the scope'' of legislation ``is, of course, the statutory 
language.'' North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520 (1982). 
Resort to legislative history, or the asserted intentions of a 
statute's sponsors, is unnecessary when the language of the statute is 
unambiguous. Freytag v. Commissioner, 501 U.S. 868, 873 (1991) (``When 
we find the terms of a statute unambiguous, judicial inquiry should be 
complete except in rare and exceptional circumstances.''); United 
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) (where 
``the statute's language is plain,'' the only task is to enforce the 
law according to its terms).
    In this case, the Act's command is clear: DOT must determine 
whether alternate standards will provide ``an equal or greater level of 
safety'' than the HM-181 performance standards. The level of safety to 
be provided by alternate standards is the sole basis of RSPA's finding 
in Part IV, above, consistent with Section 122 of the Act. Historical 
shipping experience under lesser standards, in effect prior to the 
adoption of the performance standards in HM-181, cannot be dispositive.
    As a matter of fact, the actual experience of shipping hazardous 
materials in fiber drums was considered in RSPA's detailed decision on 
FDTC's appeal from the denial of its application for an exemption. 
There RSPA's Acting Administrator found that the claimed 99.99% 
``success rate'' for fiber drums was comparable for all packagings but, 
notwithstanding that record, it was appropriate to further improve 
safety in HM-181 by eliminating non-specification packagings of all 
constructions (metal and plastic, as well as fiber). Were RSPA to have 
accepted the fiber drum industry's position that the past shipping 
record was satisfactory, that success rate ``would foreclose RSPA from 
taking any further actions to require appropriate levels of safety for 
the transportation of hazardous materials.'' Moreover, the types of 
incidents involving fiber drums were considered to be more reflective 
of a packaging's performance, and the need to upgrade the packaging, 
than just the number of incidents.
    Also beyond the direction of Section 122 of the Act is IFDI's claim 
that the HM-181 standards are too strict and need to be relaxed for 
fiber drums. Under Section 122, the benchmark for alternate standards 
is HM-181, not some less protective version thereof. Moreover, 
contentions regarding the impossibility of making fiber drums to meet 
the HM-181 performance standards and arguments concerning other 
exceptions from the HM-181 requirements were discussed in detail in the 
decision on FDTC's appeal from a denial of its application for an 
exemption.
    The only additional matter raised in IFDI's comments in this 
proceeding relates to an approval recently issued by RSPA that permits 
the remarking of steel drums, as meeting the HM-181 standards without 
additional testing, that were certified to meet the former DOT 
specifications at dates up to September 30, 1994. (Packagings may not 
be made to the former DOT specifications after September 30, 1994. 49 
CFR 171.14(b)(5)(ii).) Those former DOT specifications included a 
series of tests in which sample drums were required to be tested at 
pressures of 15 psi or more (some up to 80 psi) and dropped from a 
height of at least four feet, in various orientations (e.g., diagonally 
on the chime and on any other part ``considered weaker than the 
chime,'' 49 CFR 178.116-12(a)(1990 ed.)). Moreover, a remanufacturer 
who remarks a steel drum, under the authority of this approval, 
certifies that the drum is capable of meeting the HM-181 performance 
standards.
    In contrast, IFDI would continue the authority to transport liquid 
hazardous materials in fiber drums that cannot pass a drop test greater 
than two feet (or 13 inches for the standard 55-gallon drum) or a 
hydrostatic pressure test at 3 psi. Nothing in RSPA's approval for 
remarking steel drums can justify the continued use of fiber drums that 
do not meet either the former DOT specifications or the HM-181 
performance standards.
    Section 122 of the Act requires RSPA to determine whether alternate 
standards for fiber drums provide ``an equal or greater level of 
safety'' as the HM-181 performance standards. As already discussed, a 
standard that requires only a one- to two-foot drop test does not 
provide an equal level of safety as a standard that requires being able 
to withstand a drop of 2.6 feet. The separate question raised by IFDI, 
whether certain steel drums actually meet the former DOT specification, 
is beside the point and concerns enforcement of the applicable 
standards rather than the appropriate standard to be applied.

VI. Final Agency Action

    This rulemaking proceeding is terminated, and this decision 
constitutes RSPA's final agency action.

    Issued at Washington, DC on September 21, 1995, under authority 
delegated in 49 CFR Part 1.
D.K. Sharma,
Administrator.
[FR Doc. 95-24238 Filed 9-28-95; 8:45 am]
BILLING CODE 4910-60-P