[Federal Register Volume 76, Number 123 (Monday, June 27, 2011)]
[Rules and Regulations]
[Pages 37283-37285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15954]



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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 172

[Docket No. PHMSA-2011-0102 (HM-145O)]
RIN 2137-AE74


Hazardous Materials: Revision to the List of Hazardous Substances 
and Reportable Quantities

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: PHMSA amends the Hazardous Materials Regulations by removing 
saccharin and its salts from the list of hazardous substances and 
reportable quantities. The Comprehensive Environmental Response, 
Compensation and Liability Act, requires PHMSA to list and regulate all 
hazardous substances designated by statute or by the U.S. Environmental 
Protection Agency (EPA). EPA recently removed saccharin and its salts 
from their list of hazardous substances through notice and comment 
rulemaking. This final rule simply harmonizes the lists to better 
enable shippers and carriers to identify the affected hazardous 
substances, comply with all applicable regulatory requirements, and 
make required notifications if the release of a hazardous substance 
occurs.

DATES: Effective Date: June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen (202) 366-8553, 
Standards and Rulemaking Division, PHMSA, 1200 New Jersey Avenue, SE, 
East Building, Washington, DC 20590-0001. Questions about hazardous 
substance designations or reportable quantities should be directed to 
the Office of Resource Conservation and Recovery, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; 
telephone number: (703) 308-0454.

SUPPLEMENTARY INFORMATION: 

I. Statutory Background

    Section 306(a) of the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (CERCLA; 42 U.S.C. 9601-9675), 
as amended by section 202 of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA; 42 U.S.C 11011 et seq.), requires 
the Secretary of Transportation to 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. 5101-5128). PHMSA 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 the statutory mandate, PHMSA 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. In accordance with CERCLA 
requirements, EPA must issue final rules amending the list of CERCLA 
hazardous substances, including removing entries, before PHMSA can 
amend the list of hazardous substances in the Hazardous Materials 
Regulations (HMR; 49 CFR parts 171-180). PHMSA periodically revises the 
list of hazardous substances and RQs in the HMR as adjustments are made 
by EPA.

II. Regulatory Actions

EPA Rulemaking

    EPA published a notice of proposed rulemaking (NPRM) for public 
comment on April 22, 2010 (75 FR 20942) and a final rule December 17, 
2010 (75 FR 78918) removing saccharin and its salts from the List of 
Hazardous Substances and Reportable Quantities in 40 CFR 302.4 (Table 
302.4) in response to a petition submitted to EPA. EPA received two 
comments in response to the NPRM, one supportive of removing saccharin 
and its salts from the list and one beyond the scope of the rulemaking. 
The amendment includes the removal of both the product name (saccharin) 
and the chemical name (1,2-benzisothiazol-3(2H)-one,1,1-dioxide). EPA 
based its decision on a review of evaluations conducted by key public 
health agencies concerning the carcinogenic and other potential 
toxicological effects of saccharin and its salts, as well as their own 
assessment of the waste generation and management information for 
saccharin and its salts. This review/assessment demonstrated that 
saccharin and its salts do not meet the criteria in their hazardous 
waste regulations for remaining on EPA's lists of hazardous 
constituents, hazardous wastes, and hazardous substances. Specifically, 
EPA's listing of saccharin and its salts as a hazardous substance was 
based solely upon the material being listed as hazardous wastes under 
the Resource Conversation and Recovery Act (RCRA) (see 40 CFR 
261.33(f)). Thus, by no longer being listed hazardous wastes, there was 
no basis for retaining saccharin and its salts in Table 302.4.

PHMSA Rulemaking

    This final rule revises the ``List of Hazardous Substances and 
Reportable Quantities'' that appears in Table 1 to Appendix A of Sec.  
172.101 by removing the entry for saccharin and its salts (including 
the chemical name and salts). This revision is being made for 
consistency with EPA's December 17, 2010 final rule removing saccharin 
and its salts from the List of Hazardous Substances and Reportable 
Quantities in Table 302.4. This final rule will enable shippers and 
carriers to properly identify CERCLA hazardous substances subject to 
HMR and EPA requirements, and subsequent notifications if a release of 
a hazardous substance occurs. In addition to the reporting requirements 
of the HMR found in Sec. Sec.  171.15 and 171.16, a release of a 
hazardous substance is subject to EPA notification requirements under 
40 CFR 302.6 and may be subject to the reporting requirements of the 
U.S. Coast Guard under 33 CFR 153.203.
    PHMSA is publishing this final rule without notice and public 
procedure with good cause. As discussed in the ``EPA Action'' section 
above, EPA revised the list of hazardous substances through notice and 
public procedure. EPA has ultimate discretion when determining what is 
or is not a hazardous substance. PHMSA is statutorily mandated to list 
and regulate in the 49 CFR EPA's list of hazardous substances. Thus, it 
is unnecessary for PHMSA to again provide notice and public procedure 
to incorporate into the HMR the changes made by EPA.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under authority of the Federal hazardous 
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes 
the Secretary of Transportation to prescribe regulations for the safe 
transportation, including security, of hazardous materials in 
interstate, intrastate, and foreign commerce. This rulemaking is also 
issued under Section 306(a) of the Comprehensive Environmental 
Response, Compensation and Liability Act of 1980 (CERCLA; 42 U.S.C. 
9601-9675), as amended by section 202 of the Superfund Amendments and 
Reauthorization Act of 1986 (SARA; 42 U.S.C 11011 et seq.), which 
requires the Secretary of Transportation to regulate hazardous 
substances listed or designated under Section 101(14) of

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CERCLA, 42 U.S.C. 9601(14), as hazardous materials under the Federal 
hazardous materials transportation law (49 U.S.C. 5101-5128).

B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This final rule is not a significant rulemaking 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). This rulemaking conforms to 
the intent of Executive Order 13563. This rulemaking relieves 
regulatory burdens placed on shippers or carriers of saccharin and on 
its salts that may be subject to regulation under the 49 CFR based on 
being defined as a hazardous substance, and subsequent regulation as a 
hazardous material by removing saccharin and its salts from the list of 
hazardous substances found in Table 1 of Appendix A to 49 CFR 172.101.

C. 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 preempts State, local and Indian tribe requirements but does 
not adopt any regulation that has substantial 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.
    The Federal hazardous material transportation law, 49 U.S.C. 5101-
5128, 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:
    (1) The designation, description, and classification of hazardous 
material;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, inspection, marking, 
maintenance, reconditioning, repair, 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 subject items (1), (2), and (3) 
above and would preempt State, local, and Indian tribe requirements not 
meeting the ``substantively the same'' standard. This rule is required 
by statute. Federal hazardous materials transportation law provides at 
Sec. 5125(b)(2) that, if PHMSA issues a regulation concerning any of 
the covered subjects, PHMSA 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 
September 26, 2011.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not have tribal implications, does not impose substantial direct 
compliance costs, and is required by statute, the funding and 
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a Federal agency to assess the impact of a regulatory action 
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. The Regulatory Flexibility Act applies only to final rules 
that are preceded by notices of proposed rulemaking (NPRM). Because 
this rule was not preceded by an NPRM, no assessment is required. EPA 
addressed the Regulatory Flexibility Act when it made the hazardous 
substances designation reflected in this rule.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure consideration of the 
potential impact of a rulemaking on small entities.

G. Paperwork Reduction Act

    This final rule does not impose any new information collection 
burdens under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

H. 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.

I. Unfunded Mandates Reform Act

    This final rule imposes no unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $140.8 
million or more to either State, local or tribal governments, in the 
aggregate, or to the private sector.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477 through 19478) or you may visit http://www.dot.gov.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires a Federal agency to consider the 
consequences of a major Federal action and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment. The revision made to the ``List of Hazardous Substances 
and Reportable Quantities'' found in Table 1 of Appendix A to Sec.  
172.101 in this final rule is not a major Federal action significantly 
affecting the quality of the human environment.
    Releases of hazardous substances have the potential to cause 
damages to the human environment. Releases can occur during any stage 
of transportation (i.e., loading, transport, unloading, etc.). When a 
release occurs, it may result in increased risk to public health and 
the environment such as increased human exposure to carcinogens or 
adverse impacts vegetation and wildlife surrounding the location of the 
release. EPA believes that saccharin and its salts, based on the 
results of reviews of available scientific information performed by 
National Toxicology Program and the International Agency

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for Research on Cancer, do not pose a present or potential risk of 
causing toxic, carcinogenic, mutagenic or teratogenic effects on humans 
or other life forms. EPA believes the results, of these reviews as well 
as their own assessment of waste generation and management information 
for saccharin and its salts, indicate that saccharin and its salts do 
not meet the criteria for listing as hazardous wastes under 40 CFR 
261.11. EPA's listing of saccharin and its salts as a hazardous 
substance under CERCLA (40 CFR 302.4) was based solely upon being 
listed as hazardous wastes under RCRA (40 CFR 261.33(f)). Thus, we 
conclude there is no significant environmental impact associated with 
removing saccharin and its salts for the ``List of Hazardous Substances 
and Reportable Quantities'' found in Table 1 to Appendix A of 49 CFR 
172.101 in this final rule.

List of Subjects in 49 CFR Part 172

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


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In consideration of the foregoing, Title 49, part 172 of the Code of 
Federal Regulations, is amended as follows:

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

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

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.


Sec.  172.101  [Amended]

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2. Section 172.101 Appendix A is amended as follows:
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a. By removing the entry ``1,2-Benzisothiazol-3(2H)-one, 1,1-dioxide, & 
salts'' from Table 1.
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b. By removing the entry ``Saccharin & salts'' from Table 1.

    Issued in Washington, DC on June 21, 2011 under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2011-15954 Filed 6-24-11; 8:45 am]
BILLING CODE 4910-60-P