[Federal Register: February 1, 2001 (Volume 66, Number 22)]
[Rules and Regulations]
[Page 8643-8647]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe01-10]
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Part III
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 171, 172, 173 and 176
Harmonization with the United Nations Recommendations and the
International Maritime Dangerous Goods Code; Final Rule
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173 and 176
[Docket No. RSPA-2000-7702 (HM-215D)]
RIN 2137-AD41
Harmonization With the United Nations Recommendations and the
International Maritime Dangerous Goods Code
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule updates three incorporations by reference in
the Hazardous Materials Regulations (HMR) to include the most recent
amendments to the International Maritime Dangerous Goods Code (IMDG
Code), the United Nations Recommendations on the Transport of Dangerous
Goods (UN Recommendations) and the UN Recommendations Manual of Tests
and Criteria. This action is necessary to facilitate the continued
transport of hazardous materials in international commerce by vessel
and to authorize compliance with the updated UN Recommendations and UN
Recommendations Manual of Tests and Criteria when these international
standards become effective. Action is being deferred on the proposal to
incorporate the 2001-2002 edition of the International Civil Aviation
Organization's Technical Instructions for the Safe Transport of
Dangerous Goods by Air (ICAO Technical Instructions) because it will
not be authorized for use until July 1, 2001.
DATES: Effective Date: July 1, 2001.
Voluntary Compliance Date: Compliance with the regulations, as
amended herein, is authorized as of January 1, 2001.
Incorporation by Reference Date: The incorporations by reference of
the publications listed in these amendments have been approved by the
Director of the Federal Register as of July 1, 2001.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials Standards, telephone (202) 366-8553, or Bob Richard,
Assistant International Standards Coordinator, telephone (202) 366-
0656, Research and Special Programs Administration, U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Background
On October 23, 2000, RSPA (hereafter, ``we'' and ``our'' means
``RSPA'') published a notice of proposed rulemaking (NPRM) under Docket
HM-215D (65 FR 63294) that proposed changes to more fully align the HMR
with international regulations. Among the changes, we proposed to amend
the HMR by incorporating by reference the most recent editions of the
IMDG Code, the UN Recommendations and the UN Recommendations Manual of
Tests and Criteria. With respect to these proposed amendments, we
received about 25 comments from industry trade associations, an
international supplier of industrial gases and chemicals and various
other commenters.
Discussion of Comments
Some commenters requested that we extend the December 22, 2000
comment closing date. Several industry commenters requested a one- or
two-month extension. One comment co-signed by 13 private organizations
requested a six-month extension. Because of our intention to publish a
subsequent final rule under Docket HM-215D before July 1, 2001, and in
order to facilitate the international transportation of hazardous
materials, we are not granting an extension of the comment period.
However, as provided in 49 CFR 106.23, we will accept and consider
late-filed comments to the extent practicable.
The Hazardous Materials Advisory Council (HMAC) and an
international supplier requested publication of a final rule to
incorporate Amendment 30 to the IMDG Code by its effective date,
January 1, 2001. We also received comments from industry trade
associations supporting the proposal to incorporate by reference the
International Atomic Energy Agency (IAEA) safety standard,
``Regulations for the Safe Transport of Radioactive Material, No. ST-
1.'' The identification number ST-1 was revised to TS-R-1 following
minor editorial revisions to the standards and will hereafter be
referred to as TS-R-1.
Several other commenters expressed opposition to adopting TS-R-1
into the HMR. Several commenters also opposed adoption of the updated
editions of the IMDG Code and the UN Recommendations because both
incorporate TS-R-1. The commenters stated that adopting the radioactive
standard would lower the level of safety and pose hazards to the
public. They did not address the technical basis of TS-R-1 and provided
no technical basis for their comments. We maintain that the risk
associated with the transport of radioactive materials remains
unchanged. Several of the commenters claimed that the TS-R-1's revised
definition of radioactive material, in allowing certain ``exempt
amounts,'' lowers the level of safety. We disagree. In TS-R-1, IAEA
changed to a more scientific, radiation protection based definition
that provides the same, if not a better, level of safety. This revised
definition of radioactive material is calculated using an algorithm
that ensures the doses received by hazardous materials employees and
the general public are lower than allowed by the international
radiation protection standards.
Several commenters also stated that the requirements for Type B
packagings are ``weakened'' in the TS-R-1. This is incorrect. The TS-R-
1 standards strengthen Type B packaging standards by adding immersion
and crush testing to the previously required performance tests. In
addition, the standards also place additional limits on the contents of
Type B packaging when being transported by aircraft. Commenters also
claimed that uranium hexafluoride packaging requirements are
``weakened'' in TS-R-1. Again, this is incorrect. The criticality
requirements for packages containing uranium hexafluoride did not
change.
Several commenters complained that sufficient time was not provided
for the public to review the IAEA standards. The commenters also
asserted that we provided no public access to the proposed rulemaking
(HM-215D) or the materials proposed to be incorporated by reference and
insisted that we supply them with the documents. We disagree. The new
edition of the IAEA standards was published in December 1996, and
copies were available by mid-1997. Furthermore, on December 28, 1999,
we published an advance notice of proposed rulemaking (ANPRM) under
Docket HM-230 (64 FR 72633) that solicited comments on the changes
contained in TS-R-1. Readers were informed that copies of the standard
could be obtained from the United States distributor, Bernan
Associates, 4611-F Assembly Drive, Lanham, MD 20706-4391, telephone
(301) 459-7666. Also, readers were informed that the standard was
available for review in the RSPA Record Center located in Room 8421 of
the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590-0001
between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday,
except Federal holidays. Public dockets and written comments submitted
to the docket may be reviewed at the Dockets Management
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System (DMS) located on the Plaza level of the Nassif Building or on-
line at the DMS web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/. To aid persons in
reviewing the changes in TS-R-1, we obtained permission from IAEA to
publish certain portions of the standard and we made the information
available for review at our DOT HazMat website at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://hazmat.dot.gov. Moreover, on March 1, 2000, we published in the Federal
Register an ANPRM under Docket HM-230 (65 FR 11028) to extend the
period for filing comments from March 29, 2000 to June 29, 2000.
All rulemakings are published and accessible through the Federal
Register in Washington, DC and our HazMat website. All materials
proposed to be incorporated by reference are available for public
inspection at the RSPA Records Center at the above address and times.
Based on the above discussion, we maintain that adopting the IMDG
Code and the UN Recommendations will not lower the safety standards for
transporting radioactive materials in international commerce.
Therefore, we are adopting the latest editions of the IMDG Code and the
UN Recommendations as proposed.
Discussion of Amendments
Due to an unanticipated delay in the publication of the NPRM and
the 60-day comment period, which ended December 22, 2000, the issuance
of a comprehensive final rule was not possible by January 1, 2001.
Therefore, to avoid disruption for persons transporting hazardous
materials in international commerce, we are issuing this final rule to
amend the HMR by incorporating Amendment 30 to the IMDG Code, the
eleventh revised edition of the UN Recommendations and the third
revised edition of the UN Recommendations Manual of Tests and Criteria.
Also, we are allowing voluntary compliance with these international
standards from January 1, 2001.
Because of the significant revisions contained in Amendment 30 to
the IMDG Code, the International Maritime Organization authorizes, as
an alternative, continued use of Amendment 29 to the IMDG Code until
January 1, 2002. Thus this final rule adopts a similar provision. In
addition, as proposed in the NPRM, we are revising Sec. 171.12(b)(3) to
require that viscous flammable liquids, which are excepted from the
IMDG Code when in packagings of less than 450 liters (118.9 gallons)
capacity, must meet the requirements in the HMR. We are taking this
action in this final rule because it coincides with the adoption of the
IMDG Code.
With respect to the ICAO Technical Instructions, ICAO approved an
implementation date of July 1, 2001 for the 2001-2002 edition. The
current 1999-2000 edition of the ICAO Technical Instructions remains in
effect through June 30, 2001. The proposed incorporation by reference
of the 2001-2002 edition of the ICAO Technical Instructions and all
other changes proposed in the NPRM will be addressed in a subsequent
final rule under Docket HM-215D.
We are also making minor editorial amendments by adding a reference
to ``see Sec. 171.7'' in sections containing the updated IBR references
incorporated in this final rule based on a request from the Office of
the Federal Register.
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].
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule would preempt State, local and Indian tribe requirements but
does not propose 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 material transportation law, 49 U.S.C. 5101-
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:
(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.
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.
The effective date of Federal preemption will be 180 days from
publication of a final rule in the Federal Register.
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 communities of the Indian
tribal governments and does not impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13084 do not apply.
D. Regulatory Flexibility Act
This final rule updates three incorporations by reference, the
eleventh revised edition of the UN Recommendations, the 2001-2002 ICAO
Technical Instructions, and Amendment 30 to the IMDG Code. The changes
in this rule apply to offerors and carriers of hazardous materials and
will facilitate the transportation of hazardous materials in
international commerce by providing consistency with international
requirements. This final rule is necessary to incorporate changes in
international standards that become effective on January 1, 2001. If
the changes in this final rule are not adopted in the HMR, U.S.
companies, including numerous small entities competing in foreign
markets, will be at an economic disadvantage. The changes are intended
to avoid this result. The costs associated with this final rule are
considered to be so minimal as to not
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warrant preparation of a regulatory impact analysis or regulatory
evaluation. Therefore, I certify that this final rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
E. Paperwork Reduction Act
This final rule contains no new information collection burdens.
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.
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 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, 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 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, 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 Sec. 171.7, in the paragraph (a)(3) table:
a. Under the entry ``International Maritime Organization (IMO)'', a
new entry is added in alphabetical order; and
b. Under the entry ``United Nations'', the existing entries are
removed and new entries are added in alphabetical order.
The additions read as follows:
Sec. 171.7 Reference material.
(a) Matter incorporated by reference * * *
* * * * *
(3) Table of material incorporated by reference. * * *
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Source and name of material 49 CFR reference
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* * * *
* * *
International Maritime
Organization (IMO):
* * * *
* * *
International Maritime Dangerous 171.12; 172.401; 172.502; 173.21;
Goods (IMDG) Code, 2000 edition, 176.2; 176.5; 176.11; 176.27;
including Amendment 30-00 176.30.
(English edition).
* * * *
* * *
United Nations:
* * * *
* * *
UN Recommendations on the 172.401; 172.407; 172.502; 173.24.
Transport of Dangerous Goods,
Eleventh Revised Edition (1999).
UN Recommendations on the 172.102; 173.21; 173.56; 173.57;
Transport of Dangerous Goods, 173.124; 173.128; 173.166; 173.185.
Manual of Tests and Criteria,
Third Revised Edition (1999).
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* * * * *
3. In Sec. 171.12, the paragraph (b) heading is revised and in
paragraph (b)(3), a sentence is added at the end of the paragraph to
read as follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) IMDG Code (see Sec. 171.7 of this subchapter). * * *
* * * * *
(3) * * * For example, internal combustion engines, and viscous
flammable liquids having a flash point of 23 deg.C (73.4 deg.F) or
greater and less than or equal to 60.5 deg.C (140.9 deg.F) as
provided in 2.3.2.5 of the IMDG Code may not be transported under the
provisions of this section and are subject to the requirements of this
subchapter.
* * * * *
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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 Sec. 172.102, in paragraph (c)(1), the following changes are
made:
a. In Special Provisions 23, 39, 44, 57, 125 and 129, the words
``(see Sec. 171.7 of this subchapter)'' are added following the words
``Tests and Criteria''.
b. In Special Provision 43, the words ``(see Sec. 171.7 of this
subchapter)'' are added following the words ``Tests and Criteria, Part
I, Test series 1(a)''.
c. In Special Provision 132, the words ``(see Sec. 171.7 of this
subchapter)'' are added following the words ``Tests and Criteria, Part
III, sub-section 38.2''.
d. In Special Provision 133, the words ``(see Sec. 171.7 of this
subchapter)'' are added following the words ``Tests and Criteria, Part
1''.
6. In Sec. 172.401, paragraphs (c)(1) and (c)(2) are revised to
read as follows:
Sec. 172.401 Prohibited labeling.
* * * * *
(c) * * *
(1) Any applicable requirement, including the class number (see
Sec. 172.407), in the document entitled ``UN Recommendations on the
Transport of Dangerous Goods'' (see Sec. 171.7 of this subchapter);
(2) The International Maritime Organization (IMO) requirements,
including the class number (Sec. 172.407), in the document entitled
``International Maritime Dangerous Goods Code'' (see Sec. 171.7 of this
subchapter);
* * * * *
7. In Sec. 172.407, paragraph (f) is revised to read as follows:
Sec. 172.407 Label specifications.
* * * * *
(f) Exceptions. A label conforming to specifications in the UN
Recommendations (see Sec. 171.7 of this subchapter) may be used in
place of a corresponding label which conforms to the requirements of
this subpart.
* * * * *
8. In Sec. 172.502, paragraph (b) (1) is revised to read as
follows:
Sec. 172.502 Prohibited and permissive placarding.
* * * * *
(b) Exceptions. (1) The restrictions in paragraph (a) of this
section do not apply to a bulk packaging, freight container, unit load
device, transport vehicle or rail car which is placarded in conformance
with the ICAO Technical Instructions, the IMDG Code or the UN
Recommendations (see Sec. 171.7 of this subchapter).
* * * * *
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 1.45, 1.53.
10. In Sec. 173.21, the following changes are made:
a. In paragraph (f) introductory text, in the second sentence, the
words ``(see Sec. 171.7 of this subchapter)'' are added following the
words ``UN Manual of Tests and Criteria''.
b. In paragraph (f)(3)(ii), the words ``(see Sec. 171.7 of this
subchapter)'' are added following the words ``(IMDG Code)''.
11. In Sec. 173.24, in paragraph (d)(2) introductory text, the
words ``(see Sec. 171.7 of this subchapter)'' are added following the
words ``UN Recommendations on the Transport of Dangerous Goods''.
12. In Sec. 173.124, in paragraph (a)(2)(iii)(C), the words ``(see
Sec. 171.7 of this subchapter)'' are added following the words ``Tests
and Criteria''.
13. In Sec. 173.128, in paragraph (e), the words ``(see Sec. 171.7
of this subchapter)'' are added following the words ``Tests and
Criteria''.
14. In Sec. 173.166, in paragraph (b)(2), the words ``(see
Sec. 171.7 of this subchapter)'' are added following the words ``Tests
and Criteria''.
15. In Sec. 173.185, in paragraph (c)(3), the words ``(see
Sec. 171.7 of this subchapter)'' are added following the words ``Tests
and Criteria''.
PART 176--CARRIAGE BY VESSEL
16. The authority citation for part 176 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
17. In Sec. 176.2, for the definition ``Explosive article'', the
words ``(see Sec. 171.7 of this subchapter)'' are added following the
words ``IMDG Code''.
18. In Sec. 176.5, in paragraph (b)(8), the words ``(see Sec. 171.7
of this subchapter)'' are added following the words ``IMDG Code''.
19. In Sec. 176.11, in paragraph (a) introductory text, in the
first sentence, the words ``(see Sec. 171.7 of this subchapter)'' are
added following the words ``IMDG Code''.
20. In Sec. 176.27, in paragraph (b), in the first sentence, the
words ``(see Sec. 171.7 of this subchapter)'' are added following the
words ``IMDG Code''.
21. In Sec. 176.30, in paragraph (a) introductory text, in the
second sentence, the words ``(see Sec. 171.7 of this subchapter)'' are
added following the words ``IMDG Code''.
Issued in Washington, D.C. on January 17, 2001, under authority
delegated in 49 CFR part 1.
John P. Murray,
Acting Administrator.
[FR Doc. 01-2185 Filed 1-31-01; 8:45 am]
BILLING CODE 4910-60-P