[Federal Register Volume 61, Number 6 (Tuesday, January 9, 1996)]
[Proposed Rules]
[Pages 688-690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-337]




[[Page 687]]

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Part III





Department of Transportation





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Research and Special Programs Administration



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49 Part 171



Extension of Authority for Open-Head Fiber Drum Packaging for Liquid 
Hazardous Materials; Proposed Rule

  Federal Register / Vol. 61, No. 6 / Tuesday, January 9, 1996 / 
Proposed Rules   

[[Page 688]]


DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket No. HM-221A; Notice No. 96-1]
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: Notice of Proposed Rulemaking.

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SUMMARY: In accordance with Section 406 of the ``Interstate Commerce 
Commission Sunset Act'' (the Act), RSPA is proposing to extend for one 
year, until September 30, 1997, 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. The Act provides that a final rule must be issued by 
February 27, 1996.

DATES: Comments must be received on or before February 5, 1996.

ADDRESSES: Address comments to Dockets Unit (DHM-30), Office of 
Hazardous Materials Safety, Research and Special Programs 
Administration, U.S. Department of Transportation, Washington, DC 
20590-0001. Comments should identify the docket (Docket No. HM-221A) 
and be submitted, when possible, in five copies. Persons wishing to 
receive confirmation of receipt of their comments should include a 
self-addressed stamped postcard. The Dockets Unit is located in Room 
8421 of the Nassif Building, 400 Seventh Street, SW, Washington, DC 
20590-0001. Office hours are 8:30 a.m. to 5:30 p.m., Monday through 
Friday except Federal 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: A central tenet of DOT's regulation of 
hazardous materials is the assurance that packagings will retain their 
contents during normal conditions of transportation. Prior to 1991, the 
Hazardous Materials Regulations (HMR, 49 CFR Parts 171-180) generally 
specified the use of packagings manufactured to design specifications. 
However, the HMR also authorized the use of certain non-specification 
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. In general, these specific authorizations had been added 
to the HMR when a material posing a low or moderate hazard, which had 
not been previously regulated, was first included within the HMR's 
classification of hazardous materials. In these cases, DOT had 
permitted the continued use of packagings then being used for shipping 
the material. 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 this 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 non-specification packagings, 
including packagings for more than 200 environmentally hazardous 
substances (such as polychlorinated biphenyls (PCBs)). In addition, 
RSPA classified 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. 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.

49 CFR 171.14(a)(1)(iii), previously located at 49 CFR 171.14(b)(8).
    On December 29, 1995, the President signed the Act (Pub. L. 104-
88). Section 406 of the Act 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 

[[Page 689]]

    (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 Sections (a) and (b) of the Act, RSPA 
is proposing to add a new paragraph (a)(2)(iii) to 49 CFR 171.14. 
Interested parties are invited to submit comments on this proposal. 
Comments are specifically invited with regard to the possibility that, 
under Section (b) of the Act, the transition period for continued use 
of non-specification open-head fiber drums for certain liquid hazardous 
materials may extend to a future date (beyond September 30, 1997) that 
is now uncertain.
    RSPA considers that this eventuality may best be dealt with, if 
necessary, in the ``final regulations'' to be issued by September 30, 
1997, under Section (d) of the Act. At that time, further 
appropriations for fiscal years beginning after September 30, 1997, may 
have been authorized, and the transition period would end on September 
30, 1997. Otherwise, RSPA and interested parties should have a better 
appreciation at that time for the date when further appropriations may 
be authorized. However, RSPA will consider alternatives that commenters 
wish to suggest for handling the uncertain length of this extended 
transition period for the continued use of non-specification open-head 
fiber drums for certain liquid hazardous materials.
    Because the Act requires the present rulemaking to be completed by 
February 27, 1996, RSPA is specifying a deadline for comments that is 
less than the 60 days recommended in Executive Order 12866. To 
encourage interested parties to submit comments, and somewhat 
compensate for a shortened comment period, RSPA is mailing a 
typewritten copy of this Notice to each person who submitted comments 
in RSPA's rulemaking proceeding in Docket No. HM-221, Alternate 
Standards for Open-Head Fiber Drum Packaging (Termination Notice, 60 FR 
50714 [Sept. 29, 1995]). Although RSPA will consider late-filed 
comments to the extent practicable, in accordance with 49 CFR 106.23, 
the Act's requirement that a final rule be issued within 60 days of 
enactment will make it extremely difficult for RSPA to consider 
comments received after February 5, 1996.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This 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 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

    This notice of proposed rulemaking 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 proposed rule concerns the packaging authorized for certain 
hazardous materials. If adopted, this rule would preempt 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 proposes that October 1, 1996, 
would be the effective date of Federal preemption for the continued 
authorization of these fiber drums.

C. Regulatory Flexibility Act

    This proposed rule would continue until September 30, 1997, 
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 the rule proposed in this notice will not have a 
significant economic impact on a substantial number of small entities. 
This certification is subject to modification as a result of a review 
of comments received in response to this proposal.

D. Paperwork Reduction Act

    There are no new information requirements in this proposed 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, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.
    In consideration of the foregoing, 49 CFR part 171 would be amended 
as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    
[[Page 690]]

    2. In Sec. 171.14, a new paragraph (a)(2)(iii) would be 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. Until September 30, 1997, 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 this packaging was authorized under the 
requirements of Part 172 or Part 173 in effect on September 30, 1991.
* * * * *
    Issued in Washington, DC on January 4, 1996, under authority 
delegated in 49 CFR Part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-337 Filed 1-8-96; 8:45 am]
BILLING CODE 4910-60-P