[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 
``[email protected].'' 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