Extension of Authority for Open-Head Fiber Drum Packaging for Liquid Hazardous Materials

SUMMARY: In accordance with Section 406 of the ``Interstate Commerce

Commission Sunset Act'' (the Act), RSPA is proposing to extend for one

year, until September 30, 1997, the authority to ship certain liquid

hazardous materials in open-head fiber drums that do not meet

performance-oriented packaging standards for hazardous materials in

Packing Group III. The Act provides that a final rule must be issued by

February 27, 1996.

DATES: Comments must be received on or before February 5, 1996.

ADDRESSES: Address comments to Dockets Unit (DHM-30), Office of

Hazardous Materials Safety, Research and Special Programs

Administration, U.S. Department of Transportation, Washington, DC

20590-0001. Comments should identify the docket (Docket No. HM-221A)

and be submitted, when possible, in five copies. Persons wishing to

receive confirmation of receipt of their comments should include a

self-addressed stamped postcard. The Dockets Unit is located in Room

8421 of the Nassif Building, 400 Seventh Street, SW, Washington, DC

20590-0001. Office hours are 8:30 a.m. to 5:30 p.m., Monday through

Friday except Federal 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: A central tenet of DOT's regulation of

hazardous materials is the assurance that packagings will retain their

contents during normal conditions of transportation. Prior to 1991, the

Hazardous Materials Regulations (HMR, 49 CFR Parts 171-180) generally

specified the use of packagings manufactured to design specifications.

However, the HMR also authorized the use of certain non-specification

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. In general, these specific authorizations had been added

to the HMR when a material posing a low or moderate hazard, which had

not been previously regulated, was first included within the HMR's

classification of hazardous materials. In these cases, DOT had

permitted the continued use of packagings then being used for shipping

the material. 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 this 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 non-specification packagings,

including packagings for more than 200 environmentally hazardous

substances (such as polychlorinated biphenyls (PCBs)). In addition,

RSPA classified 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. 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.

49 CFR 171.14(a)(1)(iii), previously located at 49 CFR 171.14(b)(8).

On December 29, 1995, the President signed the Act (Pub. L. 104-

88). Section 406 of the Act 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

[[Page 689]]

(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 Sections (a) and (b) of the Act, RSPA

is proposing to add a new paragraph (a)(2)(iii) to 49 CFR 171.14.

Interested parties are invited to submit comments on this proposal.

Comments are specifically invited with regard to the possibility that,

under Section (b) of the Act, the transition period for continued use

of non-specification open-head fiber drums for certain liquid hazardous

materials may extend to a future date (beyond September 30, 1997) that

is now uncertain.

RSPA considers that this eventuality may best be dealt with, if

necessary, in the ``final regulations'' to be issued by September 30,

1997, under Section (d) of the Act. At that time, further

appropriations for fiscal years beginning after September 30, 1997, may

have been authorized, and the transition period would end on September

30, 1997. Otherwise, RSPA and interested parties should have a better

appreciation at that time for the date when further appropriations may

be authorized. However, RSPA will consider alternatives that commenters

wish to suggest for handling the uncertain length of this extended

transition period for the continued use of non-specification open-head

fiber drums for certain liquid hazardous materials.

Because the Act requires the present rulemaking to be completed by

February 27, 1996, RSPA is specifying a deadline for comments that is

less than the 60 days recommended in Executive Order 12866. To

encourage interested parties to submit comments, and somewhat

compensate for a shortened comment period, RSPA is mailing a

typewritten copy of this Notice to each person who submitted comments

in RSPA's rulemaking proceeding in Docket No. HM-221, Alternate

Standards for Open-Head Fiber Drum Packaging (Termination Notice, 60 FR

50714 [Sept. 29, 1995]). Although RSPA will consider late-filed

comments to the extent practicable, in accordance with 49 CFR 106.23,

the Act's requirement that a final rule be issued within 60 days of

enactment will make it extremely difficult for RSPA to consider

comments received after February 5, 1996.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This notice of proposed rulemaking 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 notice of

proposed rulemaking is not considered significant under the regulatory

policies and procedures of the Department of Transportation (44 FR

11034; February 26, 1979).

B. Executive Order 12612

This notice of proposed rulemaking 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 proposed rule concerns the packaging authorized for certain

hazardous materials. If adopted, this rule would preempt 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 any of the covered subjects after November 16,

1990, 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 proposes that October 1, 1996,

would be the effective date of Federal preemption for the continued

authorization of these fiber drums.

C. Regulatory Flexibility Act

This proposed rule would continue until September 30, 1997,

authority for shipment of certain liquid hazardous materials in open-

head fiber drums that do not meet the performance standards in the HMR.

I certify that the rule proposed in this notice will not have a

significant economic impact on a substantial number of small entities.

This certification is subject to modification as a result of a review

of comments received in response to this proposal.

D. Paperwork Reduction Act

There are no new information requirements in this proposed 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, Hazardous waste,

Imports, Incorporation by reference, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49 CFR part 171 would be amended

as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 would continue to read as

follows:

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

[[Page 690]]

2. In Sec. 171.14, a new paragraph (a)(2)(iii) would be added to

read as follows:

Sec. 171.14 Transitional provisions for implementing requirements

based on the UN Recommendations.

* * * * *

(a) * * *

(2) * * *

(iii) Non-specification fiber drums. Until September 30, 1997, 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 this packaging was authorized under the

requirements of Part 172 or Part 173 in effect on September 30, 1991.

* * * * *

Issued in Washington, DC on January 4, 1996, under authority

delegated in 49 CFR Part 106.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 96-337 Filed 1-8-96; 8:45 am]

BILLING CODE 4910-60-P