Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172 and 173

[Docket No. RSPA-98-4185 (HM-215C)]

RIN 2137-AD15

Harmonization with the United Nations Recommendations,

International Maritime Dangerous Goods Code, and International Civil

Aviation Organization's Technical Instructions

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

ACTION: Final rule; corrections and response to two petitions for

reconsideration.

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SUMMARY: On March 5, 1999, RSPA published a final rule under Docket HM-

215C that amended the Hazardous Materials Regulations to maintain

alignment with corresponding provisions of international standards.

Changes to the International Maritime Dangerous Goods Code (IMDG Code),

the International Civil Aviation Organization's Technical Instructions

for the Safe Transport of Dangerous Goods by Air (ICAO Technical

Instructions), and the United Nations Recommendations on the Transport

of Dangerous Goods (UN Recommendations) necessitated amendments to

domestic regulations to provide consistency with international

transport requirements and to facilitate the transport of hazardous

materials in international commerce. This final rule makes certain

corrections to the March 5 final rule and responds to two petitions for

reconsideration.

DATES: Effective Date: October 1, 1999.

Delayed Compliance Date: October 1, 2000.

FOR FURTHER INFORMATION CONTACT: Bob Richard, Assistant International

Standards Coordinator, telephone (202) 366-0656 or Joan McIntyre,

Office of Hazardous Materials Standards, telephone (202) 366-8553,

Research and Special Programs Administration, US Department of

Transportation, 400 Seventh Street, SW, Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

On March 5, 1999, RSPA published a final rule under Docket HM-215C

(64 FR 10742) to maintain alignment with recent changes to

corresponding provisions in international standards. This final rule

corrects various errors and denies two petitions for reconsideration to

the March 5, 1999 final rule. A document correcting printing errors

appears elsewhere in today's edition of the Federal Register.

II. Section-by-Section Review

Section 172.101

The Hazardous Materials Advisory Council (HMAC) petitioned RSPA to

replace the plus sign (``+'') with a different symbol for materials

classified on the basis of human experience. (The plus sign fixes the

proper shipping name, hazard class and packing group for a hazardous

material entry in the Hazardous Materials Table, regardless of the

actual hazard characteristics of the material.)

HMAC stated:

To distinguish between materials that are classified on the

basis of human experience and those that have been assigned a

particular classification and/or packing group for other reasons,

HMAC believes a different symbol, perhaps the pound (#) sign, would

be better suited for this purpose. There are important differences

in the ability of a shipper to reclassify dilute mixtures or

solutions of these substances. For example, as pointed out in the

preamble, a mixture or solution containing Epichlorohydrin, a

material classified by human experience, could have a different PSN

if the appropriate tests indicate it does not meet the corresponding

hazard class. However, for materials assigned the ``+'' symbol for

other reasons, Sec. 172.101(b)(1) requires the authorization of the

Associate Administrator for Hazardous Materials Safety to change the

PSN and hazard class.

RSPA disagrees with the need to distinguish between materials that

are classed on the basis of human experience and those that have been

assigned a particular classification or packing group. First, any

material preceded by a plus sign can be classed differently and

assigned a different proper shipping name when in a solution or mixture

which justifies that different classification. Second, any material

preceded by a plus sign can be authorized by the Associate

Administrator to be reclassed and assigned a different proper shipping

name. Therefore, there is no apparent benefit for distinguishing

between those ``plus-marked'' materials that are classed on the basis

of human experience and those that are classed for other reasons, and

the petition for reconsideration is denied.

The Hazardous Materials Table (HMT).

For the entries ``Aviation regulated liquid, n.o.s.'' and

``Aviation regulated solid, n.o.s.,'' the ``A'' was mistakenly omitted

in the NPRM and the final rule and is reinstated in this document.

The entries ``Compounds, tree killing, liquid or Compounds, weed

killing, liquid,'' NA1760 and NA1993 were amended by adding a ``G'' in

Column (1) of the HMT to identify the entries as requiring a technical

name in parentheses and in association with the basic description.

However, the entry ``Compounds, tree killing, liquid or Compounds, weed

killing, liquid,'' NA2810 was mistakenly omitted in the NPRM and the

final rule. RSPA is reinserting that entry and adding the letter ``G''

in this final rule.

The entries ``Hydrocarbon gas mixture, compressed, n.o.s.'' and

``Hydrocarbon gas mixture, liquefied, n.o.s.'' are corrected by

removing the letter ``G'' from Column (1). These two entries were

listed correctly in the NPRM (63 FR 44312), as not requiring a

technical name; however, in the final rule the letter ``G'' was

mistakenly added.

Section 172.101 Appendix B to Sec. 172.101--List of Marine Pollutants

For the entry ``normal-heptaldehyde,'' RSPA proposed to remove the

severe marine pollutant designation (``PP''). Due to a typographical

error, this entry was misspelled and printed twice, one with the ``PP''

designation and one without. This final rule removes the entries and

replaces them with ``n-Heptaldehyde.''

[[Page 44427]]

Section 172.203

RSPA is removing paragraphs (k)(1) and (m)(2), which require n.o.s.

descriptions to be supplemented with the technical name. The final rule

adopted the letter ``G'' in Column (1) of the HMT to identify generic

and n.o.s. entries that must be supplemented with a technical name.

Therefore, these paragraphs are no longer necessary. In addition, RSPA

is adding a sentence to paragraph (k) introductory text to alert

readers about the letter ``G'' designator in Column (1) of the HMT.

With the removal of paragraph (k)(1), paragraphs (k)(2) and (k)(3) are

redesignated as paragraphs (k)(1) and (k)(2), respectively. With the

removal of paragraph (m)(2), paragraph (m)(3) is redesignated as

paragraph (m)(2).

Section 172.504

Although the wording in the regulatory text is correct in the March

5, 1999 final rule, RSPA notes that the preamble discussion mistakenly

included the words ``or adjacent to the POISON label.''

Section 173.28

Certain existing text, which was omitted in the final rule and

resulted in the unintentional removal of an exception, is reinstated in

this final rule. The exception provides that replacing a removable

gasket or closure device on a UN 1H1 plastic drum with one of the same

design and material providing equivalent performance does not

constitute reconditioning.

Section 173.32c

Due to a typographical error in paragraph (j), the word ``not'' was

inadvertently omitted from the first sentence concerning the filling

restriction and is added in this document. The intent of this

prohibition was clearly indicated in the preamble of the final rule.

Section 173.222

In introductory paragraph (c) and paragraph (c)(4), an incorrect

limitation of this requirement to transportation by aircraft is

removed. The requirement applies to all modes of transportation.

Section 178.603

RSPA received a petition for reconsideration from the Conference on

Safe Transportation of Hazardous Articles, Inc. (COSTHA) requesting an

amendment to Sec. 178.603(f)(5) concerning the drop test criteria.

COSTHA expressed concern that the requirements for combination

packagings are more stringent than those for drums, jerricans and bags.

COSTHA's request is beyond the scope of this rulemaking and will be

considered in a separate rulemaking.

III. Rulemaking 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 a significant rule under the Regulatory Policies and

Procedures of the Department of Transportation (44 FR 11034).

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

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

Federal hazardous materials transportation law, 49 U.S.C. 5701-5127,

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:

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

material;

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

placarding of hazardous material;

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

related 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 of hazardous material; or

(v) The design, manufacturing, fabricating, marking, maintenance,

reconditioning, repairing, 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 subjects under items i, ii, iii

and v above and, adopted as final, would preempt State, local, or

Indian tribe requirements not meeting the ``substantively the same''

standard. Federal hazardous materials transportation law provides at

Sec. 5125(b)(2) that if DOT issues a regulation concerning any of the

covered subjects 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 is February 14, 2000. Thus, RSPA lacks discretion in this

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

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 Indian tribal

communities, the funding and consultation requirements of the Executive

Order do not apply.

D. Regulatory Flexibility Act

This final rule corrects certain provisions incorporated into the

Hazardous Materials Regulations based on changes introduced in the

tenth revised edition of the UN Recommendations, the 1997-98 ICAO

Technical Instructions, and Amendment 29 to the IMDG Code (Docket HM-

215C, 64 FR 10742). (The ICAO Technical Instructions and the IMDG Code

were updated in a final rule, published October 29, 1998 (Docket HM-

215C; 63 FR 44312).) This final rule applies to offerors and carriers

of hazardous materials and will facilitate the transportation of

hazardous materials in international commerce by providing consistency

with international requirements. The costs associated with this final

rule are considered to be so minimal as to not warrant preparation of a

regulatory impact analysis or regulatory evaluation. Therefore, I

certify that this final rule will not have a significant economic

impact on a substantial number of small entities.

E. Paperwork Reduction Act

The requirements for information collection have been approved by

the Office of Management and Budget (OMB) under OMB control numbers

2137-0034 for shipping papers and 2137-0557 for approvals. Under the

Paperwork Reduction Act of 1995, no person is required to respond to a

collection of information unless it displays a valid OMB control

number.

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 number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

[[Page 44428]]

G. Unfunded Mandates Reform Act

This final rule does not impose unfunded mandates under the

Unfunded Mandates Reform Act of 1995. It does not result in costs of

$100 million or more to either State, local or tribal governments, in

the aggregate, or to the private sector, and is the least burdensome

alternative that achieves the objective of the rule.

List of Subjects

49 CFR Part 172

Education, Hazardous materials transportation, Hazardous waste,

Labeling, Markings, Packaging and containers, Reporting and

recordkeeping requirements.

49 CFR Part 173

Hazardous materials transportation, Packaging and containers,

Radioactive materials, Reporting and recordkeeping requirements,

Uranium.

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 authority citation for part 172 continues to read as

follows:

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

Sec. 172.101 [Amended]

2. In the Sec. 172.101 Hazardous Materials Table, in Column (1), as

amended at 64 FR 10753 effective October 1, 1999, the following changes

are made:

a. In Column (1), for the entries ``Aviation regulated liquid,

n.o.s.'' and ``Aviation regulated solid, n.o.s.'', the letter ``A'' is

added in alphabetical order.

b. In Column (1), for the entry, ``Compounds, tree killing, liquid

or Compounds, weed killing, liquid'' (NA2810), the letter ``G'' is

added in alphabetical order.

c. For the entries ``Hydrocarbon gas mixture, compressed, n.o.s.''

and ``Hydrocarbon gas mixture, liquefied, n.o.s.'', the letter ``G'' is

removed each place it appears.

3. In Appendix B to Sec. 172.101, the List of Marine Pollutants is

amended by removing two entries and adding one entry in alphabetical

order to read as follows:

Appendix B to Sec. 172.101--List of Marine Pollutants

------------------------------------------------------------------------

S.M.P. (1) Marine pollutant (2)

------------------------------------------------------------------------

[REMOVE:]

PP...................................... normal-Heptyl aldehyde.

normal-heptaldehyde.

[ADD:]

* * * * *

n-Heptaldehyde.

* * * * *

------------------------------------------------------------------------

4. In Sec. 172.203, in paragraph (k) introductory text, a new

sentence is added at the end to read as follows:

Sec. 172.203 Additional description requirements.

* * * * *

(k) * * * Shipping descriptions for toxic materials that meet the

criteria of Division 6.1, PG I or II (as specified in Sec. 173.132(a)

of this subchapter) or Division 2.3 (as specified in Sec. 173.115(c) of

this subchapter) and are identified by the letter ``G'' in Column (1)

of the Sec. 172.101 Table, must have the technical name of the toxic

constituent entered in parentheses in association with the basic

description.

* * * * *

Sec. 172.203 [Amended]

5. In addition, in Sec. 172.203 as amended at 64 FR 10775 effective

October 1, 1999, the following changes are made:

a. Paragraph (k)(1) is removed.

b. Paragraphs (k)(2) and (k)(3) are redesignated as paragraphs

(k)(1) and (k)(2), respectively.

c. Paragraph (m)(2) is removed.

d. Paragraph (m)(3) is redesignated as paragraph (m)(2).

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND

PACKAGINGS

6. The authority citation for part 173 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

7. In Sec. 173.28, in paragraph (c)(2)(iii), as revised at 64 FR

10776 effective October 1, 1999, ``; and'' is removed at the end of the

sentence and a period is added in their place and a new sentence is

added to read as follows:

Sec. 173.28 Reuse, reconditioning and remanufacture of packagings.

* * * * *

(c) * * *

(2) * * *

(iii) * * * (For a UN 1H1 plastic drum, replacing a removable

gasket or closure device with another of the same design and material

that provides equivalent performance does not constitute

reconditioning); and

* * * * *

Sec. 173.28 [Amended]

8. In addition, in Sec. 173.28, in paragraph (c)(2) introductory

text, as revised at 64 FR 10776 effective October 1, 1999, the wording

``or a UN 1H1 plastic drum'' is added immediately following the words

``other than a metal drum'.

Sec. 173.32c [Amended]

9. In Sec. 173.32c, in paragraph (j), as revised at 64 FR 10777

effective October 1, 1999, in the first sentence, the wording ``may be

loaded to'' is removed and the words ``may not be loaded to'' are added

in its place.

Sec. 173.222 [Amended]

10. In Sec. 173.222, as revised at 64 FR 10779 effective October 1,

1999, the following changes are made:

a. In paragraph (c) introductory text, the wording ``For

transportation by aircraft, the'' is removed and ``The'' is added in

its place.

b. In paragraph (c)(4), the wording ``and is offered for

transportation by aircraft'' is removed.

Issued in Washington, DC, on August 9, 1999, under authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Administrator.

[FR Doc. 99-21074 Filed 8-13-99; 8:45 am]

BILLING CODE 4910-60-P