Hazardous Materials: Use of Non-Specification Open-Head Fiber Drum Packagings

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[Docket No. RSPA-97-2501 (HM-221B)]

RIN 2137-AD04

Hazardous Materials: Use of Non-Specification Open-Head Fiber

Drum Packagings

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

ACTION: Direct final rule.

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SUMMARY: RSPA is allowing the transportation of certain liquid

hazardous materials in non-specification open-head fiber drums until

September 30, 1999, if the fiber drums have been filled before, and are

not emptied and refilled after, the expiration of the current authority

for the use of these packagings.

RSPA is terminating its rulemakings relating to alternate standards

for open-head fiber drums based on the recommendation of the National

Academy of Sciences (NAS) that RSPA should not extend authorization for

the transportation of liquid hazardous materials in open-head fiber

drums that do not meet the performance-oriented packaging standards

adopted in RSPA's rulemaking docket No. HM-181. This action completes

the rulemakings mandated by Section 406 of the Interstate Commerce

Commission Termination Act concerning alternate standards for open-head

fiber drums used in the transportation of liquid hazardous materials.

DATES: This final rule is effective October 1, 1997, unless an adverse

comment or notice of intent to file an adverse comment is received by

August 1, 1997. RSPA will publish in the Federal Register a timely

document confirming the effective date of this direct final rule.

[[Page 29674]]

ADDRESSES: Address comments to the Dockets Office, U.S. Department of

Transportation, Room PL-401, 400 Seventh Street, SW, Washington, DC

20590-0001. Comments may also be submitted by E-mail to

``[email protected].'' In every case, the comment should refer

to the Docket Number set forth above.

Persons wishing to receive confirmation of receipt of their

comments should include a self-addressed, stamped postcard. The Dockets

Office is open between 9:00 a.m. and 5:30 p.m., Monday through Friday,

except public 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:

Background

Prior to 1991, the Hazardous Materials Regulations (HMR, 49 CFR

Parts 171-180) authorized the use of certain nonspecification

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. 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 the HM-181

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 nonspecification packagings,

including packagings for more than 200 environmentally hazardous

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

RSPA listed 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 for most

hazardous materials. 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.

56 FR at 66161. RSPA subsequently extended until October 1, 1999, this

transitional period for non-bulk packagings that were authorized for

use until October 1, 1996, if filled prior to October 1, 1996, and not

emptied and refilled on or after that date. 49 CFR 171.14(a)(2), 62 FR

50622 (Sept. 26, 1996).1

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\1\ In addition, packagings conforming to the pre-HM-181

requirements that were filled prior to October 1, 1991, may be

shipped until October 1, 2001, if not emptied and refilled on or

after October 1, 1991. 49 CFR 171.14(a)(1).

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On December 29, 1995, the President signed the Interstate Commerce

Commission Termination Act (the Act) (Pub. L. 104-88). Section 406 of

the Act (49 U.S.C. 5103 note) 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

(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 Section 406 (a) and (b) of the Act,

RSPA issued a final rule on February 29, 1996 (61 FR 7958, 7959),

adding the following provision to the HMR:

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 the packaging was

authorized under the

[[Page 29675]]

requirements of Part 172 or Part 173 of [the HMR] in effect on

September 30, 1991. This authorization expires on the later of

September 30, 1997, or the date on which funds are appropriated to

carry out chapter 51 of title 49, United States Code (related to

transportation of hazardous materials), for fiscal years beginning

after September 30, 1997. Information concerning this funding

authorization date may be obtained by contacting the Office of the

Associate Administrator for Hazardous Materials Safety.

49 CFR 171.14(c).

NAS Report

NAS completed the study required by Section 406(c) of the Act. In

its report, NAS concluded that other standards (besides those adopted

in HM-181) ``could be established that would provide for safety in the

transport of liquid hazardous materials as required by Section

5103(b),'' but that alternate standards proposed by the International

Fibre Drum Institute (IFDI) do ``not ensure a level of safety equal to

that provided by HM-181.'' NAS also found that, because of data

limitations, the historical safety record of the non-specification

fiber drums authorized prior to HM-181 ``is not in itself enough to

establish beyond reasonable doubt that this [IFDI] packaging can ensure

the safe transportation of liquid hazardous materials in accordance

with the requirements of Section 5103(b).'' NAS recommended that ``DOT

should not extend the authorization to ship hazardous liquids in

nonspecification fiber drums beyond September 30, 1997, subject to the

final transitional provisions for performance-oriented packaging

standards * * * [footnote omitted].''

Direct Final Rule

Based on the NAS recommendation and the merits of the final

regulations adopted under Docket No. HM-181, RSPA is terminating its

consideration of alternate standards for open-head fiber drums used to

ship liquid hazardous materials. However, to allow for an orderly

transition and accommodate the shipment of packagings that have been

filled prior to the expiration of the current authorization in 49 CFR

171.14(c), RSPA is redesignating the current authorization in

Sec. 171.14(c) as paragraph (c)(1) and adding a new paragraph (c)(2) to

allow the shipment of these liquid hazardous materials until September

30, 1999, if the open-head fiber drum has already been filled prior to,

and is not emptied and refilled on or after, the date on which the

authority in the redesignated paragraph (c)(1) expires. This action

provides the same treatment for open-head fiber drums as other

packagings which were filled prior to the expiration of authorization

for their use on October 1, 1996. The transitional provision added by

new Sec. 171.14(c)(2) prevents the anomalous situation that would

otherwise exist, under which fiber drums filled before October 1, 1996,

could be shipped until September 30, 1999, but fiber drums filled on or

after October 1, 1996, under the authority in the current

Sec. 171.14(c), would not be allowed the same period of time to clear

the transportation system.

This direct final rule is being issued under the procedures set

forth in 49 CFR 106.39, and it will be effective on October 1, 1997,

unless RSPA receives an adverse comment or notice of intent to file an

adverse comment by August 1, 1997. Interested parties should refer to

Sec. 106.39(c) for a discussion of what constitutes an ``adverse

comment.''

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 was not reviewed by the

Office of Management and Budget. This rule is not considered

significant under the regulatory policies and procedures of the

Department of Transportation (44 FR 11034; February 26, 1979). This

rule provides relief to shippers who, before the expiration of the

current authority for use of non-specification open-head fiber drums,

have filled these packagings for transportation. Accordingly, RSPA has

not prepared a regulatory evaluation of the costs and benefits of this

rule.

B. Executive Order 12612

This final rule 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 rule concerns the packagings authorized for certain hazardous

materials and, therefore, preempts 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 a covered subject, 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 has

determined that the effective date of Federal preemption for the

continued authorization of these fiber drums will be October 1, 1997.

C. Regulatory Flexibility Act

This final rule continues until September 30, 1999, authority for

shipment of certain liquid hazardous materials in open-head fiber drums

that do not meet the performance standards in the HMR, so long as the

fiber drums were filled before (and are not emptied and refilled after)

the expiration of the current authority for use of these packagings. In

this respect, this rule provides relief to shippers who, before the

expiration of the current authority for use of non-specification open-

head fiber drums, have filled these packagings for transportation.

Data provided to NAS indicate that the use of non-specification

open-head fiber drums for all liquid hazardous materials has declined

from the average of approximately 750,000 drums per year prior to 1991

(and the HM-181 rulemaking did not eliminate the authority to use this

packaging for combustible liquids [flash point above 100 deg. F] or, of

course, nonhazardous materials). RSPA estimates that there are

approximately six U.S. manufacturers of fiber drums for liquid

hazardous materials, three of whom are small entities. Some of these

manufacturers already produce other packagings authorized for the

transportation of liquid hazardous materials, and the remainder likely

have the capability of producing these other packagings.

[[Page 29676]]

RSPA believes that there is a limited number of shippers of liquid

hazardous materials in non-specification open-head fiber drums

(probably less than 100), and assumes that most of them are small

entities. Alternative packagings that meet the HM-181 performance

standards include (together with their relative cost as compared to

non-specification open-head fiber drums, according to data used by

NAS):

--Open-head steel drums (more expensive)

--Closed-head steel drums (less expensive)

--Closed-head plastic drums (about the same)

--Closed-head fiber drums (more expensive).

RSPA assumes that both cost and non-cost factors will influence

shippers' choice of alternative packagings.

Based on the above, I certify that 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 requirements in this 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, Imports, Reporting and

recordkeeping requirements.

In consideration of the foregoing, 49 CFR part 171 is amended as

follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 continues to read as

follows:

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

2. In Sec. 171.14, the text of paragraph (c) following the

paragraph heading is redesignated as paragraph (c)(1), and a new

paragraph (c)(2) is added to read as follows:

Sec. 171.14 Transitional provisions for implementing requirements

based on the UN recommendations.

* * * * *

(c) Non-specification fiber drums. (1) * * *

(2) A non-specification fiber drum with a removable head authorized

by paragraph (c)(1) of this section may be offered for transportation

and transported domestically prior to October 1, 1999, if it--

(i) Was filled with an authorized hazardous material prior to the

expiration of the authority in paragraph (c)(1) of this section; and

(ii) Is not emptied and refilled after the expiration of the

authority in paragraph (c)(1) of this section.

* * * * *

Issued in Washington, DC on May 27, 1997, under authority

delegated in 49 CFR Part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 97-14337 Filed 5-30-97; 8:45 am]

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