[Federal Register Volume 65, Number 30 (Monday, February 14, 2000)]
[Rules and Regulations]
[Pages 7310-7311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3379]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 172

[Docket No. RSPA-2000-6744 (HM-145L)]
RIN 2137-AD39


Hazardous Materials: Hazardous Substances--Revisions

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

ACTION: Final rule.

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SUMMARY: In this final rule, RSPA is amending the Hazardous Materials 
Regulations (HMR) by revising the ``List of Hazardous Substances and 
Reportable Quantities'' that appears in Appendix A, ``Hazardous 
Substances other than Radionuclides,'' to the Hazardous Materials 
Table. This action is necessary to comply with the Superfund Amendments 
and Reauthorization Act (SARA) of 1986, which amended the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980 (CERCLA) 
to mandate that RSPA regulate, under the HMR, all hazardous substances 
designated by the Environmental Protection Agency (EPA). The intended 
effect of this action is to enable shippers and carriers to identify 
CERCLA hazardous substances, thereby enabling them to comply with all 
applicable HMR requirements and to make the required notifications if a 
discharge of a hazardous substance occurs. No notice of proposed 
rulemaking (NPRM) has preceded this final rule because, in light of 
RSPA's lack of discretion concerning the regulation of hazardous 
substances under the HMR, RSPA finds that under the Administrative 
Procedure Act notice would serve no purpose and thus is unnecessary.

DATES: This amendment is effective on August 14, 2000. However, 
immediate compliance with the regulations as amended herein is 
authorized.

FOR FURTHER INFORMATION CONTACT: Michael Johnsen (202) 366-8553, Office 
of Hazardous Materials Standards, RSPA, 400 7th Street, SW, Washington, 
DC 20590. Questions about hazardous substance designations or 
reportable quantities should be directed to the Environmental 
Protection Agency (EPA) at the RCRA/Superfund hotline at (800) 424-9346 
or, in Washington, DC, (202) 382-3000.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 202 of SARA (Pub. L. 99-499) amended Section 306(a) of 
CERCLA (Pub. L. 96-510), 42 U.S.C. 9656(a), by requiring the Secretary 
of Transportation to list and regulate hazardous substances, listed or 
designated under Section 101(14) of CERCLA, 42 U.S.C. 9601(14), as 
hazardous materials under the Federal hazardous materials 
transportation law (49 U.S.C. 5101-5127). RSPA carries out the 
rulemaking responsibilities of the Secretary of Transportation under 
the Federal hazardous materials transportation law, 49 CFR 1.53(b). 
This final rule is necessary to comply with 42 U.S.C. 9656(a) as 
amended by section 202 of SARA.
    In carrying out that statutory mandate, RSPA has no discretion to 
determine what is or is not a hazardous substance or the appropriate 
reportable quantity (RQ) for materials designated as hazardous 
substances. This authority is vested in EPA. Therefore, under the 
CERCLA scheme, EPA must issue final rules amending the list of CERCLA 
hazardous substances, including adjusting RQs, before RSPA can amend 
its list of hazardous substances. In the preamble to a final rule on 
this subject issued under Docket HM-145F (51 FR 42174; November 21, 
1986), RSPA included the following statement:

    It is RSPA's intention to make changes from time to time to the 
list of hazardous substances or their RQ's in the Appendix as 
adjustments are made by EPA.

    This rulemaking adjusts the ``List of Hazardous Substances and 
Reportable Quantities'' that appears in Appendix A to Sec. 172.101, 
based on the following final rules that were published by EPA in the 
Federal Register and added and removed entries to the EPA table in 40 
CFR 302.4 List of Hazardous Substances and Reportable Quantities under 
CERCLA:

June 17, 1997 (62 FR 32974) rule added three new waste codes (K156, 
K157, K158) from the industrial production of carbamate chemicals;
May 4, 1998 (63 FR 24596) rule added 2,4,6-Tribromophenol and an 
associated waste code (K140);
August 6, 1998 (63 FR 42110) rule added four waste codes from petroleum 
refining (K169, K170, K171, K172); and
December 15, 1998 (63 FR 69116) rule removed caprolactam.

    This rulemaking will enable shippers and carriers to identify 
CERCLA hazardous substances and thereby enable them to comply with all 
applicable HMR requirements and to make the required notifications if a 
discharge of a hazardous substance occurs. In addition to the reporting 
requirements of the HMR found in Secs. 171.15 and 171.16, a discharge 
of a hazardous substance is subject to EPA reporting requirements at 40 
CFR 302.6 and may be subject to the reporting requirements of the U.S. 
Coast Guard at 33 CFR 153.203.

II. 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, therefore, was not 
reviewed by the Office of Management and Budget. The rule is not 
considered significant under the Regulatory Policies and Procedures of 
the Department of Transportation (44 FR 11034). Because of the minimal 
economic impact of this rule, preparation of a regulatory impact 
analysis or a regulatory evaluation is not warranted.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does preempt State, local, and Indian tribe requirements but 
does not adopt any regulation that has substantial

[[Page 7311]]

direct effects on the States, the relationship between the national 
government and the States, or the distribution of power and 
responsibilities among the various levels of government. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    This final rule addresses designation of hazardous material and 
preempts state, local, or Indian tribe requirements not meeting the 
``substantively the same'' standard. This rule is required by law. 
Federal hazardous materials transportation law provides at section 
5125(b)(2) that if RSPA issues a regulation concerning any of the 
covered subjects, RSPA 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. 
The effective date of Federal preemption for these requirements is May 
15, 2000.

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 communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review most regulations to assess their impact on small 
entities unless the agency determines that a rule is not expected to 
have a significant impact on a substantial number of small entities. 
Because this rule was not preceded by an NPRM, however, the Regulatory 
Flexibility Act does not apply to it and no assessment is required. EPA 
addressed the Regulatory Flexibility Act when it made the hazardous 
substances designations and changes reflected in this rule.

E. Paperwork Reduction Act

    This final rule does not impose any new information collection 
burdens.

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 contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

G. Unfunded Mandates Reform Act

    This final rule imposes no mandates and thus does not impose 
unfunded mandates under the Unfunded Mandates Reform Act of 1995.

H. Impact on Business Processes and Computer Systems

    We do not want to impose new requirements that would mandate 
business process changes when the resources necessary to implement 
those requirements would otherwise be applied to ``Y2K'' or related 
computer problems. This final rule does not mandate business process 
changes or require modifications to computer systems. Because this rule 
does not affect organizations' ability to respond to those problems, we 
are not delaying the effectiveness of the requirements.

List of Subjects in 49 CFR Part 172

    Hazardous materials transportation, Hazardous wastes, Labels, 
Markings, Packaging and containers, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, part 172 of Title 49, Code of 
Federal Regulations, 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.

    2. In Appendix A to Sec. 172.101, Table 1 is amended by removing 
and adding, in listed order, the following entries to read as follows:

Appendix A to Sec. 172.101--List of Hazardous Substances and 
Reportable Quantities

* * * * *

  Table 1 to Appendix A--Hazardous Substances Other Than Radionuclides
------------------------------------------------------------------------
                                                              Reportable
                                                               quantity
                    Hazardous substance                      (RQ) pounds
                                                             (kilograms)
------------------------------------------------------------------------
[REMOVE]
 
 
                *        *         *         *         *
 
Caprolactam................................................         5000
 
                *        *         *         *         *
 
[ADD]
 
 
                *        *         *         *         *
 
2,4,6-Tribromophenol.......................................          100
K140.......................................................          100
K156.......................................................            1
K157.......................................................            1
K158.......................................................            1
K169.......................................................           10
K170.......................................................            1
K171.......................................................            1
K172.......................................................            1
 
                 *        *         *        *        *
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    Issued in Washington, DC on February 3, 2000 under authority 
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Administrator, Research and Special Programs Administration.
[FR Doc. 00-3379 Filed 2-11-00; 8:45 am]
BILLING CODE 4910-60-P