[Federal Register Volume 64, Number 157 (Monday, August 16, 1999)]
[Rules and Regulations]
[Pages 44426-44428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21074]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172 and 173

[Docket No. RSPA-98-4185 (HM-215C)]
RIN 2137-AD15


Harmonization with the United Nations Recommendations, 
International Maritime Dangerous Goods Code, and International Civil 
Aviation Organization's Technical Instructions

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

ACTION: Final rule; corrections and response to two petitions for 
reconsideration.

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SUMMARY: On March 5, 1999, RSPA published a final rule under Docket HM-
215C that amended the Hazardous Materials Regulations to maintain 
alignment with corresponding provisions of international standards. 
Changes to the International Maritime Dangerous Goods Code (IMDG Code), 
the International Civil Aviation Organization's Technical Instructions 
for the Safe Transport of Dangerous Goods by Air (ICAO Technical 
Instructions), and the United Nations Recommendations on the Transport 
of Dangerous Goods (UN Recommendations) necessitated amendments to 
domestic regulations to provide consistency with international 
transport requirements and to facilitate the transport of hazardous 
materials in international commerce. This final rule makes certain 
corrections to the March 5 final rule and responds to two petitions for 
reconsideration.

DATES: Effective Date: October 1, 1999.
    Delayed Compliance Date: October 1, 2000.

FOR FURTHER INFORMATION CONTACT: Bob Richard, Assistant International 
Standards Coordinator, telephone (202) 366-0656 or Joan McIntyre, 
Office of Hazardous Materials Standards, telephone (202) 366-8553, 
Research and Special Programs Administration, US Department of 
Transportation, 400 Seventh Street, SW, Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

    On March 5, 1999, RSPA published a final rule under Docket HM-215C 
(64 FR 10742) to maintain alignment with recent changes to 
corresponding provisions in international standards. This final rule 
corrects various errors and denies two petitions for reconsideration to 
the March 5, 1999 final rule. A document correcting printing errors 
appears elsewhere in today's edition of the Federal Register.

II. Section-by-Section Review

Section 172.101

    The Hazardous Materials Advisory Council (HMAC) petitioned RSPA to 
replace the plus sign (``+'') with a different symbol for materials 
classified on the basis of human experience. (The plus sign fixes the 
proper shipping name, hazard class and packing group for a hazardous 
material entry in the Hazardous Materials Table, regardless of the 
actual hazard characteristics of the material.)
    HMAC stated:

    To distinguish between materials that are classified on the 
basis of human experience and those that have been assigned a 
particular classification and/or packing group for other reasons, 
HMAC believes a different symbol, perhaps the pound (#) sign, would 
be better suited for this purpose. There are important differences 
in the ability of a shipper to reclassify dilute mixtures or 
solutions of these substances. For example, as pointed out in the 
preamble, a mixture or solution containing Epichlorohydrin, a 
material classified by human experience, could have a different PSN 
if the appropriate tests indicate it does not meet the corresponding 
hazard class. However, for materials assigned the ``+'' symbol for 
other reasons, Sec. 172.101(b)(1) requires the authorization of the 
Associate Administrator for Hazardous Materials Safety to change the 
PSN and hazard class.

    RSPA disagrees with the need to distinguish between materials that 
are classed on the basis of human experience and those that have been 
assigned a particular classification or packing group. First, any 
material preceded by a plus sign can be classed differently and 
assigned a different proper shipping name when in a solution or mixture 
which justifies that different classification. Second, any material 
preceded by a plus sign can be authorized by the Associate 
Administrator to be reclassed and assigned a different proper shipping 
name. Therefore, there is no apparent benefit for distinguishing 
between those ``plus-marked'' materials that are classed on the basis 
of human experience and those that are classed for other reasons, and 
the petition for reconsideration is denied.

The Hazardous Materials Table (HMT).

    For the entries ``Aviation regulated liquid, n.o.s.'' and 
``Aviation regulated solid, n.o.s.,'' the ``A'' was mistakenly omitted 
in the NPRM and the final rule and is reinstated in this document.
    The entries ``Compounds, tree killing, liquid or Compounds, weed 
killing, liquid,'' NA1760 and NA1993 were amended by adding a ``G'' in 
Column (1) of the HMT to identify the entries as requiring a technical 
name in parentheses and in association with the basic description. 
However, the entry ``Compounds, tree killing, liquid or Compounds, weed 
killing, liquid,'' NA2810 was mistakenly omitted in the NPRM and the 
final rule. RSPA is reinserting that entry and adding the letter ``G'' 
in this final rule.
    The entries ``Hydrocarbon gas mixture, compressed, n.o.s.'' and 
``Hydrocarbon gas mixture, liquefied, n.o.s.'' are corrected by 
removing the letter ``G'' from Column (1). These two entries were 
listed correctly in the NPRM (63 FR 44312), as not requiring a 
technical name; however, in the final rule the letter ``G'' was 
mistakenly added.

Section 172.101 Appendix B to Sec. 172.101--List of Marine Pollutants

    For the entry ``normal-heptaldehyde,'' RSPA proposed to remove the 
severe marine pollutant designation (``PP''). Due to a typographical 
error, this entry was misspelled and printed twice, one with the ``PP'' 
designation and one without. This final rule removes the entries and 
replaces them with ``n-Heptaldehyde.''

[[Page 44427]]

Section 172.203

    RSPA is removing paragraphs (k)(1) and (m)(2), which require n.o.s. 
descriptions to be supplemented with the technical name. The final rule 
adopted the letter ``G'' in Column (1) of the HMT to identify generic 
and n.o.s. entries that must be supplemented with a technical name. 
Therefore, these paragraphs are no longer necessary. In addition, RSPA 
is adding a sentence to paragraph (k) introductory text to alert 
readers about the letter ``G'' designator in Column (1) of the HMT. 
With the removal of paragraph (k)(1), paragraphs (k)(2) and (k)(3) are 
redesignated as paragraphs (k)(1) and (k)(2), respectively. With the 
removal of paragraph (m)(2), paragraph (m)(3) is redesignated as 
paragraph (m)(2).

Section 172.504

    Although the wording in the regulatory text is correct in the March 
5, 1999 final rule, RSPA notes that the preamble discussion mistakenly 
included the words ``or adjacent to the POISON label.''

Section 173.28

    Certain existing text, which was omitted in the final rule and 
resulted in the unintentional removal of an exception, is reinstated in 
this final rule. The exception provides that replacing a removable 
gasket or closure device on a UN 1H1 plastic drum with one of the same 
design and material providing equivalent performance does not 
constitute reconditioning.

Section 173.32c

    Due to a typographical error in paragraph (j), the word ``not'' was 
inadvertently omitted from the first sentence concerning the filling 
restriction and is added in this document. The intent of this 
prohibition was clearly indicated in the preamble of the final rule.

Section 173.222

    In introductory paragraph (c) and paragraph (c)(4), an incorrect 
limitation of this requirement to transportation by aircraft is 
removed. The requirement applies to all modes of transportation.

Section 178.603

    RSPA received a petition for reconsideration from the Conference on 
Safe Transportation of Hazardous Articles, Inc. (COSTHA) requesting an 
amendment to Sec. 178.603(f)(5) concerning the drop test criteria. 
COSTHA expressed concern that the requirements for combination 
packagings are more stringent than those for drums, jerricans and bags. 
COSTHA's request is beyond the scope of this rulemaking and will be 
considered in a separate rulemaking.

III. Rulemaking 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, therefore, was not 
reviewed by the Office of Management and Budget. The rule is not 
considered a significant rule under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034).

B. Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612 (``Federalism''). 
Federal hazardous materials transportation law, 49 U.S.C. 5701-5127, 
contains an express preemption provision (49 U.S.C. 5125(b)) 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, labeling, marking, and 
placarding of hazardous material;
    (iii) The preparation, execution, and use of shipping documents 
related 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 of hazardous material; or
    (v) The design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule addresses covered subjects under items i, ii, iii 
and v above and, adopted as final, would preempt State, local, or 
Indian tribe requirements not meeting the ``substantively the same'' 
standard. Federal hazardous materials transportation law provides at 
Sec. 5125(b)(2) that if DOT issues a regulation concerning any of the 
covered subjects DOT must determine and publish in the Federal Register 
the effective date of Federal preemption. The effective date may not be 
earlier than the 90th day following the date of issuance of the final 
rule and not later than two years after the date of issuance. RSPA has 
determined that the effective date of Federal preemption for these 
requirements is February 14, 2000. Thus, RSPA lacks discretion in this 
area, and preparation of a federalism assessment is not warranted.

C. Executive Order 13084

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the Indian tribal 
communities, the funding and consultation requirements of the Executive 
Order do not apply.

D. Regulatory Flexibility Act

    This final rule corrects certain provisions incorporated into the 
Hazardous Materials Regulations based on changes introduced in the 
tenth revised edition of the UN Recommendations, the 1997-98 ICAO 
Technical Instructions, and Amendment 29 to the IMDG Code (Docket HM-
215C, 64 FR 10742). (The ICAO Technical Instructions and the IMDG Code 
were updated in a final rule, published October 29, 1998 (Docket HM-
215C; 63 FR 44312).) This final rule applies to offerors and carriers 
of hazardous materials and will facilitate the transportation of 
hazardous materials in international commerce by providing consistency 
with international requirements. The costs associated with this final 
rule are considered to be so minimal as to not warrant preparation of a 
regulatory impact analysis or regulatory evaluation. Therefore, I 
certify that this final rule will not have a significant economic 
impact on a substantial number of small entities.

E. Paperwork Reduction Act

    The requirements for information collection have been approved by 
the Office of Management and Budget (OMB) under OMB control numbers 
2137-0034 for shipping papers and 2137-0557 for approvals. Under the 
Paperwork Reduction Act of 1995, no person is required to respond to a 
collection of information unless it displays a valid OMB control 
number.

F. Regulation 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.

[[Page 44428]]

G. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more to either State, local or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

List of Subjects

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Markings, Packaging and containers, Reporting and 
recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

    In consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    1. The authority citation for part 172 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec. 172.101  [Amended]

    2. In the Sec. 172.101 Hazardous Materials Table, in Column (1), as 
amended at 64 FR 10753 effective October 1, 1999, the following changes 
are made:
    a. In Column (1), for the entries ``Aviation regulated liquid, 
n.o.s.'' and ``Aviation regulated solid, n.o.s.'', the letter ``A'' is 
added in alphabetical order.
    b. In Column (1), for the entry, ``Compounds, tree killing, liquid 
or Compounds, weed killing, liquid'' (NA2810), the letter ``G'' is 
added in alphabetical order.
    c. For the entries ``Hydrocarbon gas mixture, compressed, n.o.s.'' 
and ``Hydrocarbon gas mixture, liquefied, n.o.s.'', the letter ``G'' is 
removed each place it appears.
    3. In Appendix B to Sec. 172.101, the List of Marine Pollutants is 
amended by removing two entries and adding one entry in alphabetical 
order to read as follows:

         Appendix B to Sec.  172.101--List of Marine Pollutants
------------------------------------------------------------------------
                S.M.P.  (1)                     Marine pollutant  (2)
------------------------------------------------------------------------
[REMOVE:]
  PP......................................  normal-Heptyl aldehyde.
                                            normal-heptaldehyde.
[ADD:]
 
                         *      *      *      *      *
                                            n-Heptaldehyde.
 
                         *      *      *      *      *
------------------------------------------------------------------------

    4. In Sec. 172.203, in paragraph (k) introductory text, a new 
sentence is added at the end to read as follows:


Sec. 172.203  Additional description requirements.

* * * * *
    (k) * * * Shipping descriptions for toxic materials that meet the 
criteria of Division 6.1, PG I or II (as specified in Sec. 173.132(a) 
of this subchapter) or Division 2.3 (as specified in Sec. 173.115(c) of 
this subchapter) and are identified by the letter ``G'' in Column (1) 
of the Sec. 172.101 Table, must have the technical name of the toxic 
constituent entered in parentheses in association with the basic 
description.
* * * * *


Sec. 172.203  [Amended]

    5. In addition, in Sec. 172.203 as amended at 64 FR 10775 effective 
October 1, 1999, the following changes are made:
    a. Paragraph (k)(1) is removed.
    b. Paragraphs (k)(2) and (k)(3) are redesignated as paragraphs 
(k)(1) and (k)(2), respectively.
    c. Paragraph (m)(2) is removed.
    d. Paragraph (m)(3) is redesignated as paragraph (m)(2).

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    6. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    7. In Sec. 173.28, in paragraph (c)(2)(iii), as revised at 64 FR 
10776 effective October 1, 1999, ``; and'' is removed at the end of the 
sentence and a period is added in their place and a new sentence is 
added to read as follows:


Sec. 173.28  Reuse, reconditioning and remanufacture of packagings.

* * * * *
    (c) * * *
    (2) * * *
    (iii) * * * (For a UN 1H1 plastic drum, replacing a removable 
gasket or closure device with another of the same design and material 
that provides equivalent performance does not constitute 
reconditioning); and
* * * * *


Sec. 173.28  [Amended]

    8. In addition, in Sec. 173.28, in paragraph (c)(2) introductory 
text, as revised at 64 FR 10776 effective October 1, 1999, the wording 
``or a UN 1H1 plastic drum'' is added immediately following the words 
``other than a metal drum'.


Sec. 173.32c  [Amended]

    9. In Sec. 173.32c, in paragraph (j), as revised at 64 FR 10777 
effective October 1, 1999, in the first sentence, the wording ``may be 
loaded to'' is removed and the words ``may not be loaded to'' are added 
in its place.


Sec. 173.222  [Amended]

    10. In Sec. 173.222, as revised at 64 FR 10779 effective October 1, 
1999, the following changes are made:
    a. In paragraph (c) introductory text, the wording ``For 
transportation by aircraft, the'' is removed and ``The'' is added in 
its place.
    b. In paragraph (c)(4), the wording ``and is offered for 
transportation by aircraft'' is removed.

    Issued in Washington, DC, on August 9, 1999, under authority 
delegated in 49 CFR part 1.
Kelley S. Coyner,
Administrator.
[FR Doc. 99-21074 Filed 8-13-99; 8:45 am]
BILLING CODE 4910-60-P