[Federal Register Volume 75, Number 189 (Thursday, September 30, 2010)]
[Rules and Regulations]
[Pages 60333-60340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24336]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 173, and 178
[Docket No. PHMSA-06-25736 (HM-231)]
RIN 2137-AD89
Hazardous Material; Miscellaneous Packaging Amendments
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: On February 2, 2010, the Pipeline and Hazardous Materials
Safety Administration published a final rule amending the Hazardous
Materials Regulations to: Revise several packaging related definitions;
add provisions to allow more flexibility when preparing and
transmitting closure instructions, including conditions under which
closure instructions may be transmitted electronically; add a
requirement for shippers to retain packaging closure instructions;
incorporate new language that allows for a practicable means of
stenciling the United Nations (UN) symbol on packagings; and clarify a
requirement to document the methodology used when determining whether a
change in packaging configuration requires retesting as a new design or
may be considered a variation of a previously tested design. The
February 2 final rule also incorporated requirements for the
construction, maintenance, and use of Large Packagings. This final rule
responds to one petition for reconsideration and four appeals submitted
in response to the February 2 final rule and also corrects several
errors that occurred in that rulemaking.
DATES: Effective Date: October 1, 2010.
Voluntary Compliance Date: Compliance with the requirements adopted
herein is authorized as of September 30, 2010. However, persons
voluntarily complying with these regulations should be aware that
appeals may be received and as a result of PHMSA's evaluation of these
appeals, the amendments adopted in this final rule correction may be
revised accordingly.
FOR FURTHER INFORMATION CONTACT: Eileen Edmonson, Office of Hazardous
Materials Standards, (202) 366-8553, or Ben Moore, Office of Hazardous
Materials Technology, (202) 366-4545; Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey
[[Page 60334]]
Avenue, SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On February 2, 2010, PHMSA published a final rule under Docket No.
PHMSA-06-25736 (HM-231) (75 FR 5376) to: Revise several packaging
related definitions; add provisions to allow more flexibility when
preparing and transmitting closure instructions, including conditions
under which closure instructions may be transmitted electronically; add
a requirement for shippers to retain packaging closure instructions;
incorporate new language that allows for a practicable means of
stenciling the ``UN'' symbol on packagings; and clarify a requirement
to document the methodology used when determining whether a change in
packaging configuration requires retesting as a new design or may be
considered a variation of a previously tested design under the
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). The
February 2 final rule also incorporated requirements for the
construction, maintenance, and use of Large Packagings harmonizing
these packaging requirements with those issued under the United Nations
Recommendations on the Transport of Dangerous Goods. This final rule
corrects several errors in the February 2 final rule and also responds
to four appeals and one petition for reconsideration. Because these
amendments do not impose new requirements, notice and public comment
procedures are unnecessary.
II. Petition for Rulemaking and Appeals to the Final Rule
In response to the February 2 final rule, PHMSA received one
petition for rulemaking from the International Vessel Operators
Dangerous Goods Association (IVODGA), and four appeals to the final
rule from the following companies or organizations: American
Promotional Events, Inc. (APE); Association of American Railroads
(AAR); Dangerous Goods Advisory Council (DGAC); and the Reusable
Industrial Packaging Association (RIPA). All object to certain
requirements adopted in the February 2 final rule. Specifically, they
request that PHMSA: (1) Eliminate the minimum thickness requirements
for remanufactured steel and plastic drums; (2) reinstate the previous
definition for ``bulk packaging'' to retain the phrase ``no
intermediate form of containment;'' (3) revise the compliance date for
maintaining closure instructions to align with a packaging's retest
date; and (4) eliminate the vibration testing requirement for UN
standard Large Packagings.
A. Bulk Packaging Definition
The February 2 final rule removed the phrase ``no intermediate form
of containment'' from the introductory language of the bulk packaging
definition contained in Sec. 171.8. PHMSA developed this definition as
a modification of the definition for bulk packagings proposed in the
Notice of Proposed Rulemaking (NPRM; September 1, 2006 (71 FR 52017))
to clarify that Large Packagings that contain inner packagings are
considered bulk packagings under the HMR. This change placed a greater
emphasis on packaging design and volumetric capacity, and was developed
in part based on a petition from the Monsanto Company (P-1173). In the
NPRM, the definition for a bulk packaging was proposed to read a ``Bulk
packaging means: (1) Any specification cargo tank, tank car, or
portable tank constructed and marked in accordance with Part 178 of
this subchapter; (2) Any DOT Specification 3AX, 3AAX or 3T cylinder
constructed, marked and certified in accordance with Subpart C of Part
178 of this subchapter; or (3) Any industrial Packaging, Type A, Type
B, Intermediate Bulk Container [IBC], Large Packaging, or non-
specification packaging that has a volumetric capacity of greater than
450 L (119 gallons).''
The DGAC, AAR, and IVODGA object to this definition as adopted in
the February 2 final rule stating that the adopted language was not
proposed in the NPRM; therefore, interested parties had no opportunity
to comment on the proposal, which is contrary to the Administrative
Procedure Act (APA). They also state under the revised definition that
a transport vehicle (e.g., a railroad box car, dry goods truck, or
semitrailer) containing non-bulk hazardous materials packages may be
considered a bulk packaging.
The September 1, 2006 NPRM definition for ``bulk packaging'' did
not include the phrase ``no intermediate form of containment.''
Therefore, interested parties were given an opportunity to comment in
response to the NPRM on the possible effect the removal of this phrase
would have on the proposed bulk packaging definition. Further, in
response to the petition for reconsideration and four appeals, we are
clarifying that a Large Packaging with one or more inner packagings or
articles is also a bulk packaging. Thus, in Sec. 171.8 we are
reinstating the phrase ``no intermediate form of containment'' in the
bulk packaging definition, and permitting Large Packagings that contain
articles or inner packagings to be defined as bulk packagings. We may
consider amendments to this definition in a future rulemaking.
B. Non-Bulk Packaging Definition
PHMSA proposed in the NPRM to revise the non-bulk packaging
definition to eliminate the maximum capacity, gross mass, and water
capacity limits for non-bulk packagings. Specifically, the NPRM
proposed to define the term as follows: A ``Non-bulk packaging means
(1) any packaging constructed, marked, tested and certified as meeting
the standards specified in Subparts L and M of Part 178 of this
subchapter; (2) except for Specifications 3AX, 3AAX and 3T, any
Specification cylinder constructed, marked and certified in accordance
with subpart C of part 178 of this subchapter; and (3) any Industrial
Packaging, Type A, Type B, Intermediate Bulk Container, Large
Packaging, or non-specification packaging that has a volumetric
capacity of 450 liters (119 gallons) or less.'' In response to the
NPRM, the DGAC and APE request PHMSA remove the definitions for bulk
and non-bulk packaging from the HMR. The DGAC states the delineations
were arbitrary and the terms no longer served a useful purpose in
regulation. The APE states in its experience these terms were no longer
used in international regulations, were detrimental to the United
States (U.S.) transportation industry, and offered no safety benefits.
Other commenters to the NPRM found the removal of the volumetric
requirements from the definitions more confusing for determining the
application of markings, labels, and placards, and were concerned the
absence of this information may present a hazard communication problem
for emergency responders in that it may interfere with them discovering
a large amount of hazardous material during an incident. These
commenters were also concerned that the removal of the volumetric
requirements may possibly cause the distinction between IBCs and drums
to disappear. For example, IBCs and drums have distinctly different
handling requirements. IBCs, by definition, require mechanical handling
for movement, which is not the case for non-bulk packagings such as
drums. Changes in the volumetric capacities of these packagings may
result in compromises in handling safety. Therefore, PHMSA did not
adopt in Sec. 171.8 the non-bulk packaging definition as proposed in
the NPRM.
In its appeal to the February 2 final rule, the APE requests PHMSA
define a non-bulk packaging for solids based on
[[Page 60335]]
a net mass limit of 400 kg and without the 450 L limitation. The APE
states this packaging is an undefined category--neither bulk nor non-
bulk, but there is no safety basis for excluding its use, and this
packaging was already authorized under PHMSA approval number CA
2006030023. The APE also states such packagings are common for
transporting consumer fireworks; an example would be a fiberboard box
with a low net mass of 75 kg but with a capacity in excess of 450 L.
Further, the APE states this size packaging issue does not arise in the
UN Recommendations on the Transport of Dangerous Goods (UN
Recommendations).
PHMSA agrees with the appellants that (1) the HMR do not define
packagings for solids with a net mass of 400 kg or less (non-bulk) but
a net capacity that exceeds 450 L, and packagings with a net mass that
exceeds 400 kg (bulk) but a net capacity that does not exceed 450 L;
(2) that many of the international requirements for bulk and non-bulk
packagings do not contain these quantity limits; and (3) packagings
that meet the HMR's performance standards should be considered
authorized packagings. However, we also recognize that many factors
concerning these size limits serve an important function in delineating
packaging types and performance testing in the U.S. Design and testing
of packages that fall within these sizes may not adequately account for
the handling characteristics that such large and heavy packagings may
require.Therefore, we are not revising the definition in Sec. 171.8
for a non-bulk packaging at this time, but will consider this issue
more fully for a future rulemaking.
C. Compliance Date for Package Closure Instructions
The February 2 final rule revised Sec. 178.2(c) to require a
packaging manufacturer or other person certifying a packaging's
compliance with 49 CFR Part 178, and each subsequent distributor of
that packaging, to notify each person the packaging is transferred to
of all the requirements regarding the packaging that are not met at the
time of transfer. Each person who receives these written instructions
must retain a copy for 365 days from the date of issuance. This
notification may be in writing, stored electronically, including e-mail
transmissions or on a CD or similar device. Federal hazmat law defines
a ``person'' as including ``a government, Indian tribe, or authority of
a government or tribe that--(i) offers hazardous material for
transportation in commerce; (ii) transports hazardous material to
further a commercial enterprise; or (iii) designs, manufactures,
fabricates, inspects, marks, maintains, reconditions, repairs, or tests
a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous materials in commerce * * *.'' See 49 U.S.C. 5102(9); see
also 49 CFR 171.8.
The DGAC states PHMSA misconstrued DGAC's comments to the NPRM
concerning closure instructions. In its appeal, the DGAC states
packagings may require retesting or updated test reports to ensure
closure instructions are consistent and repeatable with the manner in
which these packagings were closed when tested. It also states
completing packaging retesting before the October 1, 2010 effective
date of the final rule could be costly and time consuming. The DGAC
recommends adopting a two-year transition period for retaining closure
instructions to align with the current two-year periodic retesting
required for combination packagings and a one-year transition period
for single packagings.
We agree with the appellant that adopting a closure instruction
retention period that aligns with the periodic retesting requirements
for the packaging would make it easier for the manufacturer and each
subsequent distributor of the packaging to comply with this
requirement. We also agree that making this change is appropriate given
that this requirement was intended to provide additional flexibility to
packaging manufacturers. Therefore, in this final rule, we are revising
the amount of time required for retaining packaging closure
instructions prescribed in Sec. 178.2(c)(1)(ii) to align with a
packaging's periodic retest date. We are also clarifying language in
Sec. 173.22(a)(4) to clearly state that additional requirements
concerning closure instruction retention, including the time period
required, are prescribed in Sec. 178.2(c).
D. Minimum Thickness Requirement for Remanufactured Steel and Plastic
Drums
PHMSA added the phrase ``or remanufactured for reuse'' to the third
sentences in Sec. 173.28(a) and (f), respectively, which require steel
and plastic drums to meet the minimum thickness requirements for
reusable packagings. In their appeals, the DGAC and RIPA object to this
revision stating that Part 178 specification requirements for steel or
plastic manufactured or remanufactured drums do not include minimum
thicknesses and reconditioning, which is a form of reuse that has not
applied to remanufactured packagings for many years. They also state a
remanufactured drum is much like a new drum marked for single use in
that it must be tested, regardless of thickness, to demonstrate
compliance with the applicable performance requirements for its design,
and it cannot be reused or reconditioned. The appellants also state if
this provision were to go into effect, remanufactured drums not meeting
minimum thickness requirements will have to be taken out of service and
scrapped, which would cause the premature disposal of packagings that
are still otherwise useful.
We agree with the appellants that this change may be misleading.
PHMSA recognizes the current HMR minimum thickness requirements apply
to packagings for reuse and reconditioning, and not to remanufactured
packagings. We also recognize a remanufactured packaging, regardless of
thickness, must be tested to demonstrate compliance with performance
requirements. This differs from the requirements for reuse and
reconditioning where the packaging is not subject to performance
requirements as a new design type before reuse or reconditioning.
Therefore, in this final rule, PHMSA is revising Sec. 173.28(a) and
(f) to remove the phrase ``or remanufactured for reuse'' to clarify
that this requirement does not apply to remanufactured packagings.
E. Vibration Testing for Large Packaging
PHMSA added a vibration performance test in Sec. 178.985 for UN
standard Large Packagings to promote the integrity of these packagings
in transportation. The DGAC and APE object to this provision in their
appeals. Both state that PHMSA erroneously stated Large Packagings
would contain hazardous materials without an intermediate packaging,
but Large Packagings are designed to contain inner packagings, making
them essentially combination packagings that should comply with Sec.
173.24a(a)(5). The appellants state that PHMSA provided no safety
justification for the additional test, and that this change decreases
harmonization with international standards as the vibration test is not
included in international standards for these packagings. The
appellants also question why PHMSA would submit a paper to the UN
Committee of Experts to permit hazard class Division 1.1D, 1.4G, and
1.4S explosives in Large Packagings but not take this into account when
preparing the Docket No. PHMSA-06-25736 (HM-231) final rule.
[[Page 60336]]
On its own initiative, PHMSA added the vibration test for Large
Packagings, other than for flexible Large Packagings, in the final rule
because, as PHMSA stated in the final rule, the similarity of the Large
Packaging's design to an IBC subjected it to similar packaging design
stresses and opportunities for failure. Further, PHMSA believes, based
on historical experience with the vibration test, that the test is an
essential component for assessing the integrity of an IBC packaging.
Therefore, the test is equally valid for assessing the integrity of a
Large Packaging, regardless of whether the Large Packaging is used as a
single or combination packaging. In addition, the NPRM's regulatory
language did provide for the placement of articles or inner packagings
in Large Packagings. However, these provisions were erroneously omitted
in the February 2 final rule. Therefore, we are revising the language
in Sec. 178.985(a) regarding the vibration test for Large Packagings
to state these packagings must be capable of passing the vibration
test, and clarifying that Large Packagings that contain inner
packagings are bulk packagings.
PHMSA agrees with the appellants that the vibration test is not
currently required internationally for Large Packagings. In December
2006, PHMSA submitted a proposal (No. 2006/98) to the 30th session of
the UN Sub-Committee of Experts on the Transport of Dangerous Goods
(Sub-Committee) (the proposal is available at: http://www.unece.org/trans/doc/2006/ac10c3/ST-SG-AC10-C3-2006-98e.pdf) to incorporate into
the UN Recommendations U.S.-issued competent authority approvals that
permit Division 1.4G (UN 0336) and Division 1.4S (UN 0337) consumer
fireworks to be transported in fiberboard and wood Large Packagings.
This proposal was based on the existing test provisions for these
packagings. PHMSA's intent in this proposal was to add a Large
Packaging authorization, not to amend the Large Packaging test
requirements. At that time, the vibration test was not yet required for
IBCs, but we were working with the Sub-Committee during that session to
add the vibration test for composite IBCs (see Canadian paper (2006/
78); the proposal is available at: http://www.unece.org/trans/doc/2006/ac10c3/ST-SG-AC10-C3-2006-78e.pdf). PHMSA's intent was to add the
vibration test to the composite IBC packaging first, and then consider
what other packaging types it should apply to.
PHMSA withdrew the proposal before it was considered by the Sub-
Committee and decided not to pursue it further at a future meeting
because we believed the information we received initially from industry
in support of the proposal was not sufficiently complete and may be
inaccurate. After further review, we also decided the proposal as
written at that time was not appropriate as a regulation to be made
available for general use by incorporating it into the UN
Recommendations. Therefore, the Sub-Committee never considered a
proposal from the U.S. to add a Large Packaging authorization for
identification number UN 0336 and UN 0337 fireworks. The Sub-Committee
document noting this withdrawal is available at: http://www.unece.org/trans/doc/2006/ac10c3/UN-SCETDG-30-INF01e.pdf.
Finally, on April 1, 2010, the U.S. submitted a working paper (No.
ST/SG/AC.10/C.3/2010/32) for the consideration of the UN Committee of
Experts entitled ``Vibration test for large packagings'' that asks the
Committee to add the vibration testing for all Large Packaging intended
to contain liquids. A copy of this paper is available in the docket for
this final rule at http://www.regulations.gov.
F. Minimum Puncture Resistance for UN 50G Fiberboard Large Packagings
The February 2 final rule added two puncture-resistant construction
requirements under Sec. 178.930 for rigid fiberboard UN 50 Large
Packagings. The first, in Sec. 178.930 (b)(1)(i), states the walls of
the packaging, including the top and bottom, must have a minimum
puncture resistance of 15 Joules (11 foot-pounds of energy) measured
according to the testing standards prescribed in the International
Organization for Standardization (ISO) 3036-1975(E) Board--
Determination of Puncture Resistance, which is incorporated by
reference in Sec. 171.7 of the HMR. The second, in Sec. 178.930
(b)(1)(ii), includes a requirement that metal staples used to fasten a
Large Packaging be formed or protected so that any inner lining cannot
be abraded or punctured by them. PHMSA added these requirements to
reduce the likelihood that sharp or protruding objects will puncture
these packagings.
The APE opposes the ISO standard of puncture resistance for
fiberboard Large Packagings, stating the 15 Joules puncture-resistance
requirement introduces significant additional costs that foreign
competitors, who may import fireworks into the U.S. in packagings of
comparable mass and volume, are not required to comply with. The APE
also states heavier fiberboard would be needed to satisfy this
requirement, and this additional weight may reduce the amount of
material that can be placed in a packaging on a truck. The APE also
states PHMSA in the past issued an approval, CA number not provided,
that required a 5 Joules puncture resistance for fiberboard packagings
and requests that this standard be applied to the fiberboard Large
Packaging as well. We believe the commenter may be referring to
Competent Authority Approval number CA 2006030023. This competent
authority permits APE to offer for transportation Division 1.4G (UN
0336) and Division 1.4S (UN 0337) fireworks in UN 50G Large Packagings
that conform to the UN Recommendations construction standards for these
packagings except that the walls, including the top and bottom of the
packaging, must pass a puncture resistance of 5 Joules instead of 15
Joules required for all other packagings of this type. Additional
packaging requirements also apply. A copy of the approval is available
under the ``Approvals Search'' link at: http://www.phmsa.dot.gov/hazmat/regs/sp-a/approvals. Finally, the APE asserts that PHMSA did not
adequately consider its concerns pertaining to this requirement in its
comments to the NPRM.
We agree with the appellant that the reduction in puncture
resistance from 15 to 5 Joules the appellant is requesting for
fiberboard UN 50G Large Packagings is adequate for the hazard class,
weight, and type of the hazardous materials permitted under this
approval. However, we disagree that this provision should be applied to
all Large Packagings in other types of hazardous materials service. For
example, the ability of a fiberboard packaging to resist further
tearing when punctured may be crucial to its survivability when it
contains materials that are heavier than fireworks, which typically are
lightweight when compared to their volume, or when it contains
materials that can disperse easily, such as those in grain or powder
form, or liquids in inner packagings. Therefore, we will continue to
authorize fiberboard Large Packagings that pass a 5 Joule puncture-
resistance test under the terms of an approval based on our
determination of its ability to transport a specific type of hazardous
material safely in transportation. To determine whether other types of
hazardous materials may be safely transported in a 5 Joule puncture-
resistant fiberboard Large Packaging, we may consider this issue and
the possibility of allowing the use of this type of packaging under the
[[Page 60337]]
terms of a Special Provision prescribed in Sec. 172.102 in a future
rulemaking.
E. Miscellenous Corrections
1. Editorial Corrections for Large Packagings
In the February 2 final rule, PHMSA added standards for
constructing and testing Large Packagings, represented by the code
designation ``UN 50'' (rigid) or ``UN 51'' (flexible), but did not
consistently revise the references in the HMR to reflect this change.
In this rulemaking, we are revising the definition in Sec. 171.8, and
the references in Sec. 173.197 to correctly identify that the Large
Packaging standards and testing provisions in the HMR are now
prescribed in 49 CFR Part 178, Subparts P and Q. These corrections will
clarify that an approval from the Associate Administrator for Hazardous
Materials Safety is no longer needed to construct and test a UN 50 or
UN 51 Large Packaging.
2. Section Numbers
PHMSA renumbered several sections pertaining to Large Packagings in
the February 2 final rule to consolidate these requirements into
sections that occur in the ``Sec. 178.900'' series, beginning with
Sec. 178.900 and ending with Sec. 178.985. However, we did not
discuss this change in the preamble. In addition, several section
numbers that appeared in the final rule's regulatory text were not
revised to reflect these changes, and some existing sections numbers
were referenced incorrectly. These editorial changes are summarized
below.
Section 178.503(e)(1)(i) was incorrectly referred to as Sec.
178.3(e)(1)(i) in Sec. 178.503(e)(1)(ii)(D) in the February 2 final
rule. This error is corrected in this final rule.
Section 178.902 was renumbered Sec. 178.905; Sec. 178.903 was
renumbered Sec. 178.910; Sec. 178.905 was renumbered Sec. 178.920;
Sec. 178.906 was renumbered Sec. 178.925; Sec. 178.907 was
renumbered Sec. 178.930; Sec. 178.908 was renumbered Sec. 178.935;
Sec. 178.909 was renumbered Sec. 178.940, Sec. 178.1001 was
renumbered Sec. 178.950 in the February 2 final rule.
In Sec. 178.910, the reference in paragraph (a)(1)(ii) containing
the identification codes for a Large Packaging design type was
incorrectly described in the NPRM and February 2 final rule as Sec.
178.901. This section was designated as Sec. 178.902 in the NPRM, and
renumbered Sec. 178.905 in the February 2 final rule. Therefore, in
Sec. 178.910(a)(1)(ii), the reference to Sec. 178.901 is renumbered
Sec. 178.905. Also in Sec. 178.910(a)(1)(ii), the reference to the
section containing the general requirements for testing Large
Packagings was incorrectly described in the NPRM and February 2 final
rule as Sec. 178.1001. Therefore, Sec. 178.1001 is renumbered Sec.
178.955 in this final rule.
In Sec. 178.915(e), the ``p'' in packaging was placed erroneously
in lower case. In addition, the bottom- and top-lift testing sections
for Large Packagings were renumbered Sec. 178.970 and Sec. 178.975,
respectively, in the February 2 final rule but were incorrectly
described in Sec. 178.915(e) as Sec. 178.1004 and Sec. 178.1005.
These errors are also being corrected in this final rule.
In the February 2 final rule, the sections that prescribe rigid
plastic and flexible Large Packaging standards were renumbered Sec.
178.925 and Sec. 178.940, respectively, but were incorrectly described
in Sec. 178.955(c)(5)(ii) as Sec. 178.906 and Sec. 178.909. Also, in
the February 2 final rule, Sec. 178.1001 was renumbered Sec. 178.955,
Sec. 178.1002 was renumbered Sec. 178.960, and Sec. 178.1015 was
renumbered Sec. 178.980. However, the references in Sec. 178.965(a)
and (b) to Sec. 178.955 and Sec. 178.960 were incorrectly described
as Sec. Sec. 178.1001 and 178.1002, respectively, and the reference in
Sec. 178.980(d) to Sec. 178.980(c) was incorrectly described as Sec.
178.1015(c).
These errors are being corrected in this final rule.
Section 178.1019 was renumbered Sec. 178.985 in the February 2
final rule.
3. Punctuation Errors
In Sec. 178.601(g)(8)(xiii)(C), the comma placed erroneously
before the parenthetic phrase is removed, and the quotation mark used
as a symbolic representation for the word ``inches'' after the numbers
0.625 was replaced with the word ``inches.'' In Sec.
178.601(g)(8)(xiii)(D), the period placed erroneously after the word
``thickness'' is replaced with a comma.
V. Rulemaking Analysis and Notices
A. Statutory/Legal Authority for this Rulemaking
This final rule is published under authority of 49 U.S.C. 5103(b),
which authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation, including security, of
hazardous materials in intrastate, interstate, and foreign commerce.
This final rule responds to one petition for reconsideration and four
appeals, and corrects several errors in the February 2, 2010 final
rule. The petition and appeals are available for review in the public
docket for this rulemaking.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is a non-significant regulatory action under
section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget. This final rule is considered non-
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). The revisions adopted in
this final rule do not alter the cost-benefit analysis and conclusions
contained in the Regulatory Evaluation prepared for the February 2,
2010 final rule.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''), and
the President's memorandum on ``Preemption'' published in the Federal
Register on May 22, 2009 (74 FR 24693). This final rule preempts State,
local, and Indian tribe requirements, but does not impose any
regulation with 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 Materials Transportation Law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting State, local, and Indian tribe requirements on the following
subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(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, marking, maintenance,
recondition, 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, 3, and 5
above. This rule preempts any State, local, or Indian tribe
requirements concerning these subjects unless the non-Federal
requirements are ``substantively the
[[Page 60338]]
same'' as the Federal requirements. This final rule is necessary to
incorporate changes to the final rule in response to one petition for
reconsideration and four appeals, and to make corrections to the
February 2, 2010 final rule that without this rulemaking will become
effective on October 1, 2010.
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.
This effective date of preemption is 90 days after the publication of
this final rule in the Federal Register.
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 and does not impose direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities.
An agency must conduct a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant impact on a substantial number of small entities. The
corrections and revisions contained in this final rule are minor and
will have little or no effect on the regulated industry. While
maintaining safety, it relaxes certain requirements. Many of the
amendments in this rulemaking are intended to correct or clarify
regulatory requirements specific to the February 2, 2010 final rule
concerning the construction and use of non-bulk and bulk packagings and
do not impose any additional costs on small entities.
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 that potential impacts of
draft rules on small entities are properly considered. The changes in
this final rule will enhance safety, and I certify that this proposal,
if promulgated, would not have a significant economic impact on a
substantial number of small entities.
F. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It will not result in costs of
$120.7 million or more, in the aggregate, to any of the following:
State, local, or Native American tribal governments, or the private
sector.
G. Paperwork Reduction Act
This final rule imposes no new information collection requirements.
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 number contained in the heading
of this document may be used to cross-reference this action with the
Unified Agenda.
I. Environmental Assessment
The National Environmental Policy Act (NEPA), Sec. Sec. 42 U.S.C.
4321-4375, requires federal agencies to analyze regulatory actions to
determine whether the action will have a significant impact on the
human environment. The Council on Environmental Quality (CEQ)
regulations order federal agencies to conduct an environmental review
considering (1) the need for the action, (2) alternatives to the
action, (3) environmental impacts of the action and alternatives, and
(4) the agencies and persons consulted during the consideration
process. 40 CFR 1508.9(b). In the February 2, 2010 final rule, we
developed an assessment to determine the effects of these revisions on
the environment and whether a more comprehensive environmental impact
statement may be required. The requirements in this rulemaking will
reduce confusion and enhance voluntary compliance, thereby reducing the
likelihood of deaths, injuries, property damage, hazardous materials
release, and other adverse consequences of incidents involving the
transportation of hazardous materials. We have determined there will be
no significant environmental impacts associated with this final rule.
J. Privacy Act
Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (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 (Volume 65, Number 70; Pages 19477-78), or it is
available at: http://www.dot.gov/privacy.html.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
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In consideration of the foregoing, we are amending 49 CFR Chapter I,
subchapter C as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134
section 31001.
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2. In Sec. 171.8, the following changes are made:
0
a. The definition for ``bulk packaging'' is amended by revising the
introductory text; and
0
b. The definition for a ``Large packaging'' is amended by revising
paragraph (5) to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Bulk packaging means a packaging, other than a vessel or a barge,
including a transport vehicle or freight container, in which hazardous
materials are loaded with no intermediate form of containment. A Large
Packaging in which hazardous materials are loaded with an intermediate
form of containment, such as one or more articles or inner packagings,
is also a bulk packaging. Additionally, a bulk packaging has: * * *
* * * * *
[[Page 60339]]
Large packaging * * *
(5) Conforms to the requirements for the construction, testing and
marking of Large Packagings as specified in subparts P and Q of part
178 of this subchapter.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
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3. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
0
4. In Sec. 173.22, paragraph (a)(4) is amended by adding three new
sentences at the end of the paragraph to read as follows:
Sec. 173.22 Shipper's responsibility.
(a) * * *
(4) * * * A person must maintain a copy of the manufacturer's
notification, including closure instructions (see Sec. 178.2(c) of
this subchapter) unless permanently embossed or printed on the
packaging. When applicable, a person must maintain a copy of any
supporting documentation for an equivalent level of performance under
the selective testing variation in Sec. 178.601(g)(1) of this
subchapter. A copy of the notification, unless permanently embossed or
printed on the packaging, and supporting documentation, when
applicable, must be made available for inspection by a representative
of the Department upon request for the time period of the packaging's
periodic retest date, i.e., every 12 months for single or composite
packagings and every 24 months for combination packagings.
* * * * *
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5. In Sec. 173.28, in paragraph (a), the third sentence is revised
and, in paragraph (f), the third sentence is revised to read as
follows:
Sec. 173.28 Reuse, reconditioning, and remanufacture of packagings.
(a) * * * Packagings not meeting the minimum thickness requirements
prescribed in paragraph (b)(4)(i) of this section may not be reused or
reconditioned for reuse.
* * * * *
(f) * * * Drums or jerricans not meeting the minimum thickness
requirements prescribed in paragraph (b)(4)(i) of this section may not
be reused or reconditioned for reuse.
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6. In Sec. 173.197, the first sentence in paragraph (c), introductory
paragraph is revised to read as follows:
Sec. 173.197 Regulated medical waste.
* * * * *
(c) Large Packagings. Large Packagings constructed, tested, and
marked in accordance with the requirements specified in subparts P and
Q of part 178 of this subchapter and conforming to other requirements
of this paragraph (c) may be used for the transportation of regulated
medical waste, provided the waste is contained in inner packagings
conforming to the requirements of paragraph (e) of this section. * * *
* * * * *
PART 178--SPECIFICATIONS FOR PACKAGINGS
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7. The authority citation for part 178 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.45, 1.53.
0
8. In Sec. 178.2, paragraph (c)(1)(ii) is revised to read as follows:
Sec. 178.2 Applicability and responsibility.
* * * * *
(c) * * *
(1) * * *
(ii) Retain copies of each written notification for the amount of
time that aligns with the packaging's periodic retest date, i.e., every
12 months for single or composite packagings and every 24 months for
combination packagings; and
* * * * *
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9. In Sec. 178.503, paragraph (e)(1)(ii)(D) is revised to read as
follows:
Sec. 178.503 Marking of packagings.
* * * * *
(e) * * *
(1) * * *
(ii) * * *
(D) The letters ``u'' and ``n'' appear exactly as depicted in Sec.
178.503(e)(1)(i) with no gaps.
* * * * *
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10. In Sec. 178.601, paragraphs (g)(8)(xiii)(C) and (g)(8)(xiii)(D)
are revised to read as follows:
Sec. 178.601 General requirements.
* * * * *
(g) * * *
(8) * * *
(xiii) * * *
(C) Closure ring style including bolt size (e.g., square or round
back, 0.625 inches bolt); and
(D) Closure ring thickness,
* * * * *
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11. In Sec. 178.910, paragraph (a)(1)(ii) is revised to read as
follows:
Sec. 178.910 Marking of large packagings.
(a) * * *
(1) * * *
(ii) The code number designating the Large Packaging design type
according to Sec. 178.905. The letter ``W'' must follow the Large
Packaging design type identification code on a Large Packaging when the
Large Packaging differs from the requirements in subpart P of this
part, or is tested using methods other than those specified in this
subpart, and is approved by the Associate Administrator in accordance
with the provisions in Sec. 178.955;
* * * * *
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12. In Sec. 178.915, paragraph (e) is revised to read as follows:
Sec. 178.915 General large packaging standards.
* * * * *
(e) Large Packaging design types must be constructed in such a way
as to be bottom-lifted or top-lifted as specified in Sec. Sec. 178.970
and 178.975.
Sec. 178.930 [Corrected]
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13. In Sec. 178.930, in the second sentence of paragraph (a)
introductory text, remove the word ``large'', and add the word
``Large'' in its place.
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14. In Sec. 178.955, paragraph (c)(5)(ii) is revised to read as
follows:
Sec. 178.955 General requirements.
* * * * *
(c) * * *
(5) * * *
(ii) A rigid plastic Large Packaging, which differs with regard to
additives used to comply with Sec. 178.925(b) or Sec. 178.940(b);
* * * * *
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15. In Sec. 178.965, paragraphs (a), (b), and the last sentence in
paragraph (c) are revised to read as follows:
Sec. 178.965 Drop test.
(a) General. The drop test must be conducted for the qualification
of all Large Packaging design types and performed periodically as
specified in Sec. 178.955(e) of this subpart.
(b) Special preparation for the drop test. Large Packagings must be
filled in accordance with Sec. 178.960.
(c) * * * Large Packagings conditioned in this way are not required
to be conditioned in accordance with Sec. 178.960(d).
* * * * *
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16. In Sec. 178.980, paragraph (d)(1) is revised to read as follows:
Sec. 178.980 Stacking test.
* * * * *
(d) Periodic retest.
[[Page 60340]]
(1) The package must be tested in accordance with Sec. 178.980(c)
of this subpart; or
* * * * *
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17. In Sec. 178.985, paragraph (a) is revised to read as follows:
Sec. 178.985 Vibration test.
(a) General. All rigid Large Packaging and flexible Large Packaging
design types must be capable of withstanding the vibration test.
* * * * *
Issued in Washington, DC, on September 22, 2010, under authority
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator.
[FR Doc. 2010-24336 Filed 9-29-10; 8:45 am]
BILLING CODE P