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 petitions for reconsideration.

SUMMARY:

On June 21, 2001, RSPA published a final rule under Docket HM-215D amending the Hazardous Materials Regulations (HMR) based on corresponding provisions of international standards. The revisions were made to facilitate the transportation of hazardous materials in international commerce. This final rule corrects errors in the June 21, 2001, final rule and responds to two petitions for reconsideration.

DATES:

Effective Date: April 3, 2002.

Voluntary Compliance Date: Compliance with the regulations, as amended herein, is authorized as of June 21, 2001.

FOR FURTHER INFORMATION CONTACT:

Joan McIntyre, Office of Hazardous Materials Standards, telephone (202) 366-8553, or Shane Kelley, International Standards, telephone (202) 366-0656, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Introduction

On June 21, 2001, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-215D (66 FR 33316) revising the HMR to maintain alignment with recent changes to corresponding provisions in 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 and facilitate the transport of hazardous materials in international commerce. This final rule corrects various errors primarily made during the printing process of the June 21, 2001, Federal Register and responds to two petitions for reconsideration.

II. Section-by-Section Review

Part 171

Section 171.12. In § 171.12, in paragraph (b)(5), a redundant phrase is removed and in paragraph (e)(4), a nonexistent paragraph reference is corrected.

Section 171.14. We received a petition for reconsideration requesting we revise § 171.14(d)(4) as adopted in the June 21, 2001, final rule. Paragraph (d)(4) reads as follows:

(4) Until January 1, 2010, a hazardous material may be transported in an IM or IMO portable tank in accordance with the T Codes (Special Provisions) assigned to a hazardous material in Column (7) of the HMT in effect on September 30, 2001.

Specifically, the petitioner seeks reconsideration of the provision as it relates to IM portable tanks, stating the provision is unreasonable by limiting the continued use of IM Specification portable tanks to less than 10 years from the publication date of the final rule. The petitioner reasoned that from a safety perspective we have no reason to impose such a time limitation. The petitioner also cited our authorization for the indefinite continued use of DOT Specification 51 tanks and questioned the omission of the same provision for IM Specification portable tanks.

Paragraph (d)(4) does not limit the continued use of IM portable tanks, rather it authorizes, until January 1, 2010, the use of the “old” T code special provisions in effect prior to the effective date of the HM-215D final rule (October 1, 2001). Persons have the option of using the “old” or the “new” T codes until January 1, 2010 at which time the “new” T codes as adopted in the June 21, 2001, final rule become mandatory. Section 173.32(c)(2) of the June 21, 2001 final rule includes the authorization for the continued use of IM portable tanks provided certain requirements are met. No time limitations are imposed. In addition, § 173.32 allows IM portable tanks to be constructed until January 1, 2003. We are responding to the petition for reconsideration by adding a phrase to § 171.14(d)(4) to refer the reader to § 173.32(c) for the continued use of IM portable tanks. Additionally, we are adding a clarifying phrase to § 173.32(c)(2) to describe the reason for referring the reader to § 171.14(d)(4).

Part 172

Section 172.101. In § 172.101, in paragraph (c)(11)(iv)(A), we are correcting the paragraph by adding the authorization for the word “Sample” to appear as part of the proper shipping name (for example, “Flammable liquid, n.o.s., Sample”). This serves as an alternative to the requirement for the word “Sample” to appear in association with the basic description on the shipping paper, unless the word “Sample” already appears in the proper shipping name. Although we discussed the intent in the preamble of the June 21, 2001, final rule, the phrase was omitted from the regulatory text.

The Hazardous Materials Table (HMT). Following are corrections made to the § 172.101 HMT. Unless otherwise specified, the corrections are due to errors made during the typesetting process.

—The entry “Batteries, wet, filled with alkali, electric storage,” UN2795, which was inadvertently deleted, is added.

—For the entry, “Diethylthiophosphoryl chloride,” UN2751, Columns (8A) through (10B) are corrected to read “None,” “212,” “240,” “15 kg,” “50 kg,” “D,” and “12, 40,” respectively.

—For four entries, Special Provision TP37 is added to Column (7) of the HMT. The Special Provision was proposed for the entries in the October 23, 2000, notice of proposed rulemaking (NPRM), however, it was inadvertently omitted in the final rule. The four entries are: “Hydrogen peroxide, aqueous solutions with more than 40 percent but not more than 60 percent hydrogen peroxide (stabilized as necessary),” UN2014; “Hydrogen peroxide, aqueous solutions with not less than 20 percent but not more than 40 percent hydrogen peroxide (stabilized as necessary),” UN2014; “Hydrogen peroxide, stabilized or Hydrogen peroxide aqueous solutions, stabilized with more than 60 percent hydrogen peroxide,” UN2015; and “Hydrogen peroxide, aqueous solutions with not less than 8 percent but less than 20 percent hydrogen peroxide (stabilized as necessary),” UN2984.

—For the entry “Metal catalyst, dry,” UN2881, Packing Group I, Columns (9A) and (9B) are corrected to read “Forbidden.”

—For the entry “Nitromethane,” UN1261, Column (9B) is corrected to read 60 L.

—The entry “2,5-Norbornadiene, stabilized, see Bicyclo 2,2,1 hepta-2,5-diene, stabilized” is corrected by adding a comma before “stabilized.”

—The entry “Organochlorine, pesticides, solid, toxic,” UN2761 is corrected by adding a comma after “solid” in the proper shipping name.

—The entry “Pepper spray, see Aerosols, etc. or Self-defense spray, non-pressurized” is removed the second time it appears in the HMT. The “see” entry was mistakenly duplicated and erroneously included column entries from the previous entry.

—The entry “Phosphoric acid, liquid or solid,” UN1805 is revised by adding the optional “liquid or solid” wording.

—For the entry “Polymeric beads, expandable, evolving flammable vapor,” UN2211, “9” is added to Column (6) and Special Provision IP7 is added to Column (7).

—For nine Class 7 entries, the vessel stowage code “95” is added. The stowage code was inadvertently deleted from Column (10B).

—For 11 entries “IP8” is removed as a special provision reference from Column (7) of the HMT. In the NPRM and final rule, the reference was inadvertently included in Column (7). IP8 is consistent with the UN Recommendations special IBC packing provision and gives a vapor pressure limitation for liquids transported in IBCs. This special provision is unnecessary for inclusion into the HMR because the “Additional Requirements” in Special Provisions IB1 through IB3 already contain the vapor pressure limits on materials that are authorized to be transported in IBCs and these special provisions are currently assigned to the appropriate entries. The 11 entries are: “Cyclopentene,” UN2246; “Dichloromethane,” UN1593; “Dimethyl sulfide,” UN1164; Ethyl bromide,” UN1891; “Glycidaldehyde,” UN2622; “Isohexenes,” UN2288; “2-Methyl-2-butene,” UN2460; “Methyl propyl ether,” UN2612; “Methylal,” UN1234; “Pentanes,” UN1265; and “Propyl chloride,” UN1278.

—The entry “Samples, explosive, other than initiating explosives” which was inadvertently deleted is added.

—The entry “Substances, explosive, n.o.s.” is corrected by revising “6” to read “G” in Column (1).

—The entry “Vinyl chloride, stabilized” is corrected by removing the duplicative wording “or Vinyl chloride, stabilized” from the proper shipping name.

Appendix B to § 172.101. In Appendix B to § 172.101, the List of Marine Pollutants is corrected as follows:

“Cumene” is removed. “Cumene” and “Isopropylbenzene” describe the same material. Although “Isopropylbenzene” was removed from the List of Marine Pollutants in the June 21, 2001, final rule, “Cumene” was overlooked as its synonym.

“2,4-D” is removed. “2,4-D” and “2,4 Dichlorophenoxyacetic acid” describe the same material and we overlooked the former when removing “2,4 Dichlorophenoxyacetic acid.”

“Dimethylphenols, liquid or solid” is removed. “Dimethylphenols” and “Xylenols” describe the same material. We removed “Xylenols” and overlooked “Dimethylphenols, liquid or solid” as its synonym.

“Ethyl acrylate, stabilized,” “Methylstyrenes, stabilized” and “Vinyltoluenes, stabilized mixed isomers” are removed. “Ethyl acrylate, inhibited” and “Vinyltoluenes, inhibited mixed isomers” were proposed to be removed, but were mistakenly added to the List of Marine Pollutants in the final rule, published on June 1, 2001, with the word “stabilized” replacing the word “inhibited.”

Section 172.102. In § 172.102, the following corrections are made:

—In Special Provision 136, “part 173” is corrected to read “part 172.”

—Paragraph (c)(4) is editorially revised for clarity.

—Paragraph (c)(7)(i) is revised by adding “IM” Specification portable tanks to indicate that the “T” Codes apply to UN and IM Specification portable tanks.

—In the paragraph (c)(7)(iv) Portable Tank Code T50 table, the maximum filling density (kg/l), 0.811954, for the entry “UN1912, Methyl chloride and methylene chloride mixture” is revised to read “0.81.”

Section 172.519. The date “September 30, 2001” is corrected to read “October 1, 2001” the second place it appears in paragraph (b)(4).

Part 173

Section 173.24b. In paragraph (e)(2) introductory text, the last sentence is editorially corrected by removing the word “be.”

Section 173.32. We are responding to a petition for reconsideration (see preamble discussion under § 171.14) by adding a clarifying phrase to paragraph (c)(2).

Section 173.150. The misplacement of the word “and” in paragraph (d)(2) is corrected.

Section 173.185. We are adding a clarification to paragraph (a). Included in the June 21, 2001, final rule preamble, and based on a comment to the NPRM, we stated that we were revising the definition of “lithium content” to make it consistent with a minor editorial clarification adopted by the Committee of Experts in its Report of the 21st Session. The intent of the clarification was to prevent possible confusion regarding the lithium-equivalent content of lithium-ion battery packs currently used in many portable devices. Although the amendment was discussed in the preamble, it was not included in the regulatory text. This document corrects the oversight.

We are also revising paragraph (e)(3). We received a petition for reconsideration concerning paragraphs (e)(3) and (e)(7). Paragraph (e) allows cells and batteries to be transported as Class 9 materials provided they meet the requirements in paragraphs (e)(1) through (e)(7). The requirement in paragraph (e)(3) states batteries containing cells or series of cells connected in parallel must be equipped with diodes to prevent reverse current flow. The petitioner stated that limiting the protective requirement to diodes unnecessarily restricts the use of equally effective alternative protection means as allowed by the UN Recommendations and impedes the transportation of large lithium batteries. We agree with the petitioner's reasoning that many lithium battery manufacturers currently employ other technology to provide equally protective means of protection. Based on the above discussion, we are revising paragraph (e)(3) to reflect the allowance of any effective means of preventing reverse current flow.

The petitioner also requested we remove the prohibition in paragraph (e)(7) to transport cells and batteries if any cell has been discharged to the extent that the open circuit voltage is less than two volts or less than two thirds of the voltage of the fully charged cell, whichever is less. The petitioner's request regarding paragraph (e)(7) is beyond the scope of this rulemaking.

Section 173.242. Paragraph (c) is editorially revised by replacing “Specification IM” with “IM 101 and IM 102.”

Section 173.243. Paragraph (c) is corrected by adding “IM 101 and IM 102” to the portable tanks authorized for certain high hazard liquids and dual hazard materials posing a moderate hazard.

Part 174

Section 174.81. The word “stowed” in paragraphs (e)(6) and (g)(3)(vi) is corrected to read “loaded and transported.” The word “stowed” is specific to the corresponding vessel section of the HMR.

Part 176

Section 176.84. In paragraph (c)(2), in the List of Notes, the last note number is corrected to read “27E.”

Part 178

Section 178.274. In paragraph (a), the wording “refrigerated liquefied gases,” which was deleted during the printing process, is added to the definition for test pressure. In paragraph (d)(1)(i), the reference “through (d)(10)” is corrected to read “through (d)(7).”

Part 180

Section 180.605. In paragraph (d), the incorrect reference to paragraph (i) for leakage test requirements is corrected to refer to paragraph (h). Paragraph (e) is revised to clarify the provisions for the exception from the requirement for the internal inspection and hydraulic pressure test. Paragraph (h)(3) is corrected by adding the inadvertently deleted test pressure for refrigerated liquefied gases.

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. This final rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Because of the minimal economic impact of this final rule, preparation of a regulatory impact analysis or a regulatory evaluation is not warranted.

B. Executive Order 13132

This final rule was analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not adopt any regulation that has 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 express preemption provisions at 49 U.S.C. 5125(b) that preempts State, local and Indian tribe requirements on certain covered subjects. Covered subjects are:

(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; 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 and would preempt State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to incorporate corrections to changes already adopted in international standards. Federal hazardous materials transportation law provides at section 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. The effective date of Federal preemption will be September 30, 2002.

C. Executive Order 13175

This final rule was 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, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

D. Regulatory Flexibility Act

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule corrects errors in a final rule published June 21, 2001 under Docket RSPA-00-7702 (HM-215D) and will not have any direct or indirect adverse economic impacts on a substantial number of small entities.

E. Paperwork Reduction Act

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. There are no new information collection requirements in this final rule.

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.

List of Subjects

49 CFR Part 171

• Exports
• Hazardous materials transportation
• Hazardous waste
• Imports
• Reporting and recordkeeping requirements

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

49 CFR Part 174

• Hazardous materials transportation
• Radioactive materials
• Railroad safety

49 CFR Part 176

• Hazardous materials transportation
• Maritime carriers
• Radioactive materials
• Reporting and recordkeeping requirements

49 CFR Part 178

• Hazardous materials transportation
• Motor vehicle safety
• Packaging and containers
• Reporting and recordkeeping requirements

49 CFR Part 180

• Hazardous materials transportation
• Motor carriers
• Motor vehicle safety
• Packaging and containers
• Railroad safety
• Reporting and recordkeeping requirements

In consideration of the foregoing, 49 CFR Chapter I 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 § 171.12, the following changes are made:

a. In paragraph (b)(5), in the first sentence, the wording “hazardous materials that conform to the requirements of the IMDG Code,” is removed.

b. In paragraph (b)(5), at the end of the last sentence, following the words “51 portable tanks”, the wording “when these portable tanks are authorized in accordance with the requirements of this subchapter” is added.

c. In paragraph (e)(4), the wording “paragraph (c)(5)” is removed and “paragraph (e)(5)” is added in its place.

3. In § 171.14, in paragraph (d)(4), a sentence is added at the end of the existing text to read as follows:

PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS

4. The authority citation for part 172 continues to read as follows:

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

5. In § 172.101, paragraph (c)(11)(iv)(A) and the Hazardous Materials Table is revised to read as follows:

6. In Appendix B to § 172.101, the List of Marine Pollutants is amended by removing 7 entries as follows:

7. In § 172.102:

a. In paragraph (c)(1), in Special Provision 136, the fourth sentence is revised;

b. In paragraph (c)(4), the text preceding Table 1 is revised;

c. In paragraph (c)(7)(i), the first sentence is revised; and

d. In the paragraph (c)(7)(iv) Portable Tank Code T50 Table, the entry for UN No. 1912 entry is revised.

The revisions and addition read as follows:

8. In § 172.519, in paragraph (b)(4), in the second sentence, the wording “September 30, 2001” is removed and “October 1, 2001” is added in its place.

PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS

9. The authority citation for part 173 continues to read as follows:

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

10. In § 173.24b, in paragraph (e)(2) introductory text, in the last sentence, the word “be” is removed.

11. In § 173.32, in paragraph (c)(2), in the first sentence, the wording “(see § 171.14(d)(4) of this subchapter)” is removed and “according to the T codes in effect on September 30, 2001 or the new T codes in § 172.102(c)(7)(i) (see § 171.14(d)(4) for transitional provisions applicable to T codes)” is added in its place.

12. In § 173.150, in paragraph (d)(2), the wording “or less for transportation on passenger-carrying aircraft and” is removed and “or less, and for transportation on passenger-carrying aircraft” is added in its place.

13. In § 173.185, the following changes are made:

a. In paragraph (a), in the last sentence, the wording “or battery” is removed and a new sentence is added at the end of the paragraph.

b. Paragraph (e)(3) is revised.

The addition and revision read as follows:

14. In § 173.242, in paragraph (c) introductory text, the wording “Specification IM” is removed and “Specification IM 101, IM 102,” is added in its place.

15. In § 173.243, in paragraph (c), the wording “UN portable tanks when” is removed and “UN portable tanks and IM 101 and IM 102 portable tanks when” is added in its place.

PART 174—CARRIAGE BY RAIL

16. The authority citation for part 174 continues to read as follows:

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

17. In § 174.81, in paragraph (e)(6), in the second sentence, and in paragraph (g)(3)(vi), the word “stowed” is removed and “loaded and transported” is added in its place.

PART 176—CARRIAGE BY VESSEL

18. The authority citation for part 176 continues to read as follows:

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

19. In § 176.84, in paragraph (c)(2), in the List of Notes, the entry 0127E is removed and a new entry is added in numerical order to read as follows:

PART 178—SPECIFICATIONS FOR PACKAGINGS

20. The authority citation for part 178 continues to read as follows:

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

21. In § 178.274, the following changes are made:

a. In paragraph (a)(3), in the definition for Test pressure, in the first sentence, the wording “for liquefied compressed gases” is revised to read “for liquefied compressed gases and refrigerated liquefied gases”.

b. In paragraph (d)(1)(i), the wording “through (d)(10)” is revised to read “through (d)(7)”.

PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

22. The authority citation for part 180 continues to read as follows:

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

23. In § 180.605, the following changes are made:

a. In paragraph (d), in the third sentence, the wording “in paragraph (i)” is revised to read “in paragraph (h)”.

b. In paragraph (e), the last sentence is revised.

c. In paragraph (h)(3), the wording “inert gas” is revised to read “inert gas to a pressure not less than 1.3 times the design pressure”.

In paragraph (e), the last sentence is revised to read as follows: