Performance-Oriented Packaging Standards; Technical Revisions; Final Rule DEPARTMENT OF TRANSPORTATION

SUMMARY: This final rule corrects two errors and clarifies a third

matter in a September 24, 1993 final rule published under Docket HM-

181F [58 FR 50224], which adopted changes to the regulations based on

petitions for rulemaking and RSPA's own initiative to help clarify

certain aspects of a final rule issued on December 21, 1990. The

intended effect of this final rule is to promote accuracy through

certain technical revisions. This rule will not impose any new

requirements on persons subject to the Hazardous Materials Regulations.

EFFECTIVE DATE: The effective date of this final rule is September 21,

1994.

FOR FURTHER INFORMATION CONTACT: Beth Romo, telephone (202) 366-4488,

Office of Hazardous Materials Standards, Research and Special Programs

Administration, Washington DC, 20590-0001 or Edward W. Pritchard,

telephone (202) 366-0510, Office of Safety Enforcement, Federal

Railroad Administration, Washington DC, 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

The Research and Special Programs Administration (RSPA) published a

final rule on December 21, 1990 (Docket HM-181; 55 FR 52402), which

comprehensively revised the Hazardous Materials Regulations (HMR; 49

CFR parts 171 to 180) with respect to hazard communication,

classification, and packaging requirements based on the United Nations

Recommendations on the Transport of Dangerous Goods. A document

responding to petitions for reconsideration and containing editorial

and substantive revisions to the HM-181 final rule was published on

December 20, 1991 (56 FR 66124). On October 1, 1992, under Docket HM-

181 and HM-189, RSPA issued additional editorial amendments to the

December 21, 1990 final rule (57 FR 45446).

A petitioner to the October 1992 final rule stated Special

Provision B65 in 49 CFR 172.102 was inconsistent because the first

sentence specified only a DOT 105A500W tank car, while the second

sentence pertained to the remarking of a DOT 105J500W tank car to a DOT

105J300W tank car. RSPA revised this special provision in the September

24, 1993 final rule to clarify that the DOT 105A500W tank car is the

only authorized tank car for hydrocyanic acid, aqueous solutions and

hydrogen cyanide, anhydrous stabilized [58 FR 50235]. However, the

second sentence incorrectly referenced a DOT 105J tank car. Therefore,

in this final rule, RSPA is correcting the second sentence in Special

Provision B65 to prescribe the remarking of a DOT105A500W tank car to a

DOT 105A300W tank car.

One rail carrier stated its belief that the regulations adopted

under the December 21, 1990 final rule allowed rail cars moving under

their own momentum to strike placarded flatcars, including flatcars

loaded with placarded transport vehicles, freight containers, and bulk

packagings. In order to clarify this matter, RSPA issued a correction

in the Docket HM-181F final rule that amended the rail car handling

requirements in Sec. 174.83(b) [58 FR 50237]. RSPA explained that the

change was being made so as not to allow an over-speed impact of any

rail car transporting a Division 1.1 or 1.2 explosive, a Division 2.1

flammable gas (in a class DOT 113 tank car), or a Division 2.3

poisonous gas. Additionally, RSPA explained that in order to clarify

these handling requirements, Sec. 174.83(b) was being restructured to

reflect the regulatory language that existed prior to December 21,

1990.

After publication of the September 24, 1993 final rule, several

commenters noted that Sec. 174.83(b) prohibited rail cars containing

all Division 2.3 poisonous gases from moving under their own momentum,

as opposed to only those containing Division 2.3 Hazard Zone A

materials. Commenters further noted that the rule did not prohibit the

movement of rail cars under their own momentum for Division 6.1 Packing

Group I Hazard Zone A materials. A notice of proposed rulemaking

published on July 12, 1993, under Docket HM-181F (58 FR 37612),

proposed revisions to Sec. 174.83(b) applicable to Division 2.3 Hazard

Zone A and Division 6.1 Packing Group I Hazard Zone A materials;

however, in the final rule, paragraph (b) was rewritten for clarity and

did not reflect accurately the applicable categories. Therefore, this

final rule amends Sec. 174.83(b) to correct these omissions.

RSPA also is amending Sec. 174.83(b) to clarify that handling

restrictions apply only to loaded rail cars transporting a Division 1.1

or 1.2 explosive, a Division 2.3 Hazard Zone A gas or a Division 6.1 PG

I Hazard Zone A material. The handling restrictions will still apply to

all class DOT 113 tank cars (both loaded tank cars and those containing

a residue) that are used to transport a Division 2.1 material, because

of the design of the inner tank supporting system (see

Secs. 172.203(g)(2), 179.400-13, and 179.400-26(d)).

Summary of Regulatory Changes by Section

Section 172.102. Special Provision B65 is amended by changing the

tank car specifications referenced in the second sentence to read ``DOT

105A500W'' and ``DOT 105A300W'', respectively.

Section 174.83. Paragraph (b) introductory text is revised to

clarify handling restrictions and to prohibit rail cars transporting a

Division 1.1 or 1.2 explosive, a Division 2.1 flammable gas (in a class

DOT 113 tank car), a Division 2.3 Hazard Zone A gas or a Division 6.1

PG I Hazard Zone A material from moving under their own momentum, from

being coupled into with more force than is necessary to complete the

coupling, or from being struck by any other rail car moving under its

own momentum.

Changed Legal Citations

On July 5, 1994, President Clinton signed H.R. 1758--now Public Law

(Pub. L.) 103-272--``a bill to revise, codify, and enact without

substantive change certain general and permanent laws, related to

transportation,'' including the HMTA. Public Law 103-272, 108 Stat. 745

(1994). The purpose of Public Law 103-272 was to ``clean-up'' related

Federal transportation laws and restate them in a format and language

intended to be easier to understand without changing substantive

content. Consequently, Public Law 103-272 revised, enacted and codified

provisions of the Federal hazardous materials transportation law, now

found at 49 U.S.C. 5101-5127. At the same time, Public Law 103-272 also

repealed the original statute.

The legal citations that appear in this document reflect the non-

substantive changes made by Public Law 103-272.

Regulatory Analysis 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). The

original regulatory evaluation has been reexamined but not modified.

The changes made under this final rule provide clarification and will

not result in an adverse economic impact on industry.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism'').

Section 5125(b)(1) of Title 49 U.S.C. expressly preempts State, local,

and Indian tribe requirements on certain covered subjects unless they

are substantively the same as the Federal requirements. Covered

subjects are:

(A) The designation, description, and classification of hazardous

material;

(B) The packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(C) The preparation, execution, and use of shipping documents

related to hazardous material and requirements related to the number,

contents, and placement of those documents;

(D) The written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(E) The design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container

represented, marked, certified, or sold as qualified for use in

transporting hazardous material.

This final rule addresses covered subjects under paragraph (B)

above and, therefore, preempts State, local, or Indian tribe

requirements not meeting the ``substantively the same'' standard.

Section 5125(b)(7) of Title 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. 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 will be December 21, 1994. Thus, RSPA lacks discretion in

this area, and preparation of a federalism assessment is not warranted.

C. Regulatory Flexibility Act

This final rule corrects two errors and clarifies an existing

requirement in the Hazardous Materials Regulations concerning

operational requirements for rail carriers. I certify 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 collection requirements in this final

rule.

E. 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.

List of Subjects

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labeling,

Markings, Packaging and containers, Reporting and recordkeeping

requirements.

49 CFR Part 174

Hazardous materials transportation, Radioactive materials, Railroad

safety.

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 parenthetical authorities at the end of any sections in part

172 are removed and the authority citation is revised to read as

follows:

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

2. In Sec. 172.102, in paragraph (c)(3), Special Provision B65 is

amended by revising the second sentence to read as follows:

Sec. 172.102 Special provisions.

* * * * *

(c) * * *

(3) * * *

B65 * * * Each DOT 105A500W tank car must be marked as DOT

105A300W. * * *

* * * * *

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PART 174--CARRIAGE BY RAIL

3. The parenthetical authorities at the end of any sections in part

174 are removed and the authority citation is revised to read as

follows:

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

4. In Sec. 174.83, the introductory text in paragraph (b) is

revised to read as follows:

Sec. 174.83 Switching placarded rail cars, transport vehicles, freight

containers, and bulk packagings.

* * * * *

(b) Any loaded rail car placarded for a Division 1.1 or Division

1.2 explosive, a Division 2.3 Hazard Zone A gas or a Division 6.1 PG I

Hazard Zone A material, or any Class DOT-113 tank car placarded for a

Division 2.1 flammable gas may not be:

* * * * *

Issued in Washington, DC on September 14, 1994, under authority

delegated in 49 CFR part 1.

D.K. Sharma,

Administrator, Research and Special Programs Administration.

[FR Doc. 94-23300 Filed 9-20-94; 8:45 am]

BILLING CODE 4910-13-P