21 October 2009
[Federal Register: October 21, 2009 (Volume 74, Number 202)]
[Proposed Rules]
[Page 53982-53987]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc09-17]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173, 174, 175, 176, 177, 178, 179, 180
[Docket Nos. PHMSA-2009-0126 (HM-215K)]
[RIN 2137-AE45]
Hazardous Materials: Harmonization With the United Nations
Recommendations on the Transport of Dangerous Goods Model Regulations,
International Maritime Dangerous Goods Code, International Civil
Aviation Organization Technical Instructions for the Safe Transport of
Dangerous Goods by Air, and Transport Canada's Transport of Dangerous
Goods Regulations
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Advanced notice of proposed rulemaking (ANPRM).
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SUMMARY: PHMSA is considering amending the Hazardous Materials
Regulations (HMR) by incorporating various amendments to international
standards and modal regulations, including changes to proper shipping
names, hazard classes, packing groups, special provisions, and
packaging authorizations. These amendments may be necessary to
harmonize the HMR with revised editions of the United Nations
Recommendations on the Transport of Dangerous Goods Model Regulations
and Manual of Tests and Criteria, the International Maritime
Organization's Dangerous Goods Code, the International Civil Aviation
Organization's Technical Instructions for the Safe Transport of
Dangerous Goods by Air and Transport Canada's Transport of Dangerous
Goods Regulations. In this notice, we are soliciting public comment
regarding the safety consequences, regulatory burden, and cost
implications of some of the more significant amendments adopted or
under consideration for adoption in these international standards.
DATES: Comments must be received by January 19, 2010.
ADDRESSES:
Comments: You may submit comments identified by the docket number
PHMSA-2009-0126 by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. Note
that all comments received will be posted without change to the Federal
eRulemaking Portal, including any personal information provided.
Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, 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), which may also be found at http://www.dot.gov.
Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Michael Stevens, Office of Hazardous
Materials Standards, telephone (202) 366-8553, or Shane Kelley,
International Standards, telephone (202) 366-0656, Pipeline and
Hazardous Materials Safety Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., 2nd Floor, Washington, DC
20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
II. International Standards and Modal Regulations for Review
A. Sixteenth Revised Edition of the United Nations
Recommendations on the Transport of Dangerous Goods Model
Regulations (UN Model Regulations)
1. Noteworthy Amendments
2. Additional Amendments
[[Page 53983]]
B. Fourth Revised Edition of the United Nations Recommendations
on the Transport of Dangerous Goods, Manual of Tests and Criteria
(UN Manual of Tests and Criteria)
C. 2011-2012 Edition of the International Civil Aviation
Organization's Technical Instructions for the Safe Transport of
Dangerous Goods (ICAO Technical Instructions)
D. 2010 Edition (Amendment 35-10) of the International Maritime
Dangerous Goods Code (IMDG Code)
E. Amendments 6 and 7 to Transport Canada's Transport of
Dangerous Goods Regulations (TDG Regulations)
F. Amendments to the International Standards and Modal
Regulations Under Consideration in Separate Dockets
III. Request for Comments
IV. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Executive Order 13132
C. Executive Order 13175
D. Regulatory Flexibility Act, Executive Order 13272, and DOT
Policies and Procedures
E. Paperwork Reduction Act
F. Environmental Assessment
G. Privacy Act
H. International Trade Analysis
I. Statutory/Legal Authority for the Rulemaking
J. Regulatory Identifier Number (RIN)
I. Background
On December 21, 1990, the Research and Special Programs
Administration (RSPA), the predecessor agency to the Pipeline and
Hazardous Materials Safety Administration (PHMSA) published a final
rule (Docket HM-181; 55 FR 52402) based on the UN Model Regulations to
comprehensively revise the Hazardous Materials Regulations (HMR), 49
CFR parts 171 to 180, for harmonization with the international
standards. Since publication of the 1990 final rule, we have issued
seven additional international harmonization final rules, (Dockets HM-
215A, 59 FR 67390; HM-215B, 62 FR 24690; HM-215C, 64 FR 10742; HM-215D,
66 FR 33316; HM-215E, 68 FR 44992; HM-215G, 69 FR 76044; and HM-215J,
74 FR 2199). The rulemakings provided additional harmonization with
international transportation requirements by aligning the HMR with
corresponding updates of the United Nations Recommendations on the
Transport of Dangerous Goods Model Regulations, United Nations
Recommendations on the Transport of Dangerous Goods, Manual of Tests
and Criteria, International Civil Aviation Organization's Technical
Instructions for the Safe Transport of Dangerous Goods, International
Maritime Dangerous Goods Code, and Transport Canada's Transport of
Dangerous Goods Regulations.
The UN Model Regulations are not regulations, but rather are
recommended standards issued by the UN Sub-Committee of Experts on the
Transport of Dangerous Goods (UN Sub-Committee of Experts). These
recommendations are amended and updated biennially and serve as the
basis for many national, regional and international modal regulations.
The Federal hazardous materials transportation law (Federal hazmat
law; 49 U.S.C. 5101, et seq.) requires PHMSA to align the HMR with
international transport standards and requirements to the extent
practicable (see section 5120). Harmonization of domestic and
international standards becomes increasingly important as the volume of
hazardous materials transported in international commerce grows and the
cost of conducting international commerce increases. Harmonization
facilitates international trade by minimizing the costs and other
burdens of complying with multiple or inconsistent safety requirements
for transportation of hazardous materials to and from the United
States. By facilitating compliance with international standards,
harmonization also tends to enhance safety for international movements,
but only if the international standards themselves provide an
appropriate level of safety. To that end, PHMSA actively participates
in the development of international standards for the transportation of
hazardous materials, frequently advocating the adoption in
international standards of particular HMR requirements. When
considering the adoption of international standards and regulations
under the HMR, we review and consider each amendment on its own merit,
including an assessment of its overall impact on transportation safety
and the economic implications associated with its adoption into the
HMR. Our goal is to harmonize without diminishing the level of safety
currently provided by the HMR and without imposing undue burdens on the
regulated public.
In this notice, we are soliciting comments on amendments made to or
proposed for the international standards and modal regulations to aid
in our review and consideration of whether the changes should be
adopted into the HMR. We encourage interested parties to review the
changes made to these international standards and modal regulations
through the links to resources that we provide below.
II. International Standards and Modal Regulations for Review
This notice solicits comments regarding the sixteenth revised
edition of the UN Model Regulations, the fourth revised edition of the
UN Manual of Tests and Criteria, the 2011-2012 edition of the ICAO
Technical Instructions, the 2010 edition of the IMDG Code
(Incorporating Amendment 35-10), and Amendments 6 and 7 of the TDG
Regulations. We are particularly interested in data and information
demonstrating possible transportation safety impacts, which will help
us to evaluate whether to propose adoption of any of the international
revisions into the HMR. We are also seeking data and information on
potential compliance costs that would result from adoption into the HMR
of the international revisions.
A. Sixteenth Revised Edition of the United Nations Recommendations on
the Transport of Dangerous Goods Model Regulations (UN Model
Regulations)
Recently, the UN Sub-Committee of Experts issued amendments to be
incorporated in the upcoming sixteenth revised edition of the UN Model
Regulations. The amendments range from routine editorial corrections to
significant changes to standards for classification criteria, hazard
communication and authorized packaging. We are in the process of
reviewing these amendments and will be considering the amendments for
adoption in the HMR.
1. Noteworthy Amendments
We believe a number of the amendments to the UN Model Regulations
may be of particular interest to the regulated community. We are
highlighting these amendments to give interested parties an opportunity
to provide comment and feedback on the transportation safety impacts,
economic implications, and compliance burdens of these amendments.
Information provided in response to this notice will help us determine
whether to propose adoption of these amendments into the HMR. Below is
a listing of important amendments to the UN Model Regulations we
believe needs public input, with a brief explanation of each amendment.
Classification of Sour Crude Oil: At the 33rd Session of
the UN Sub-Committee of Experts in July 2008, the expert from Canada
noted that the transportation of sour crude oil may pose additional
risks due to its inherent characteristic of ``off-gassing'' hydrogen
[[Page 53984]]
sulfide, a highly toxic and flammable gas. Sour crude oil, as opposed
to ``sweet'' crude oil, contains a high concentration of sulfur and is
commonly found in North America. Off-gassing is the evolution of vapors
from a liquid substance that is created due to temperature, packaging
confinement, transport conditions (e.g., sloshing), bacteria and sulfur
concentration, among many other potential factors. As a result, the UN
Model Regulations were amended by assigning a new identification number
and shipping description for sour crude oil with a flammable primary
hazard and a toxic subsidiary hazard. Additionally, a new special
provision which specifies the Packing Group (PG) assignment was created
for this entry based on the degree of danger presented by either the
flammability or inhalation toxicity hazard of the sour crude oil. For
example, sour crude oil meeting flammability criteria for Class 3, PG
II, and toxicity criteria for Division 6.1, PG I, poisonous-by-
inhalation, would be classified as a Class 3, PG I material. We invite
commenters to provide data and information concerning the impact on
domestic shippers and carriers if these requirements are adopted in the
HMR. We also are interested in comments addressing which hazard
communication methods (e.g., package markings, shipping papers) and/or
packaging requirements are most cost-effective to reduce the hazards of
transporting sour crude oil. The working documents (ST/SG/AC.10/C.3/
2008/12 and ST/SG/AC10/C.3/2008/96) for this issue can be found at
http://www.unece.org/trans/main/dgdb/dgsubc/c32008.html; and an
informal document discussing this issue (UN/SCETDG/34/INF.62) can be
found at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf34.html.
Classification of Explosives: For several Division 1.4
explosive articles (UN0323, UN0366, UN0441, UN0445, UN0455, UN0456,
UN0460, and UN0500), the UN Model Regulations have been amended to
require a Type 6(d) test to determine whether an article may be
assigned to Compatibility Group S. The test is performed on a single
package containing an explosive substance or explosive article to
determine if the package is capable of containing any explosive effects
in the event of an accidental initiation or ignition of its contents.
The amendments include revisions to the explosives testing standards in
the UN Manual of Tests and Criteria (see below) and include a new
special provision that would allow the use of the above-mentioned
hazardous materials table entries only if the results of test Type 6(d)
successfully demonstrate that any explosive effects are confined within
a package. The initial working document (ST/SG/AC.10/C.3/2007/29)
considered by the UN Sub-Committee of Experts relative to this
amendment can be found at http://www.unece.org/trans/main/dgdb/dgsubc/
c32007.html. This proposal was ultimately adopted with a number of
modifications, including limiting the applicability to the
aforementioned identification numbers. We invite commenters to provide
data and information concerning the possible safety impacts of the new
test provisions and compliance costs that would be incurred if the new
test is adopted in the HMR. In addition, we invite commenters to
provide suggestions or recommendations concerning whether to apply the
test to already approved explosives. It should also be noted that an
addendum has been added to the 2009-2010 ICAO Technical Instructions
applicable to these eight explosive articles that requires successful
demonstration of the Type 6(d) Test for transport aboard passenger
aircraft after January 1, 2010 and allows explosives not yet subjected
to the new test method to be transported aboard cargo aircraft until
January 1, 2011. Addendum 3 to the 2009-2010 ICAO Technical
Instructions can be found at http://www.icao.int/anb/FLS/
DangerousGoods/, and the working paper (no. 66) presented to the ICAO
Dangerous Goods Panel on the implementation of such policy can be found
at http://www.icao.int/anb/FLS/DangerousGoods/DGP/WorkingGroups/WG09/
WPs/.
IBC Rebottling: Under the UN Model Regulations and the
HMR, the replacement of the rigid plastic receptacle of a composite IBC
is considered a ``repair'' under certain conditions and, thus, not
subject to design qualification testing as a new or different design.
The UN Sub-Committee of Experts issued an amendment to the UN Model
Regulations that specifies a replacement bottle must be of the original
tested design type but limits the replacement to a bottle from the
original manufacturer. We invite comments on this amendment to the UN
Model Regulations and how, if adopted in the HMR, it would impact the
use of IBCs in domestic or international commerce. The working document
(ST/SG/AC.10/C.3/2008/28) for this issue can be found at http://
www.unece.org/trans/main/dgdb/dgsubc/c32008.html; an informal document
discussing this issue (UN/SCETDG/32/INF.33) can be found at http://
www.unece.org/trans/main/dgdb/dgsubc/c3inf32.html, while additional
informal documents regarding this issue (UN/SCETDG/33/INF.4, 31, 60, 61
and 73) can be found at http://www.unece.org/trans/main/dgdb/dgsubc/
c3inf33.html.
Limited Quantities and Consumer Commodities: The HMR have
long-recognized the relatively low risk posed by the transportation of
certain hazardous materials as limited quantities or consumer
commodities. Considerable efforts have recently been made
internationally to harmonize multi-modal standards with regard to the
transport of limited quantities, including consumer commodities. We
held public meetings on this issue in February 2006 and March 2008 to
discuss potential impacts on domestic stakeholders. Additionally, this
issue was discussed during our pre-UN public meetings held in 2006 and
2007. There was considerable domestic interest in pursuing further
harmonization internationally due to the potential for substantial
savings in transportation costs and improved transportation efficiency.
In this notice, we invite comments on this issue with regard to
aligning the HMR with the UN Model Regulations for the domestic and
international transport of limited quantities and consumer commodities.
Of particular concern are any potential negative impacts on the
domestic transportation of consumer commodities reclassed as ORM-D
materials. While some changes adopted in the UN Model Regulations were
similar to those currently in the HMR related to limited quantities and
consumer commodities (e.g., inner packaging limits and non-
specification outer packagings allowed), some changes were not (e.g.,
marking, labeling, package gross mass). Depending on comments received
and our own evaluation, we may determine that the significance of any
amendments on this issue will warrant a separate rulemaking action. The
working document (ST/SG/AC.10/C.3/2008/17) for this issue can be found
at http://www.unece.org/trans/main/dgdb/dgsubc/c32008.html; informal
documents discussing this issue (UN/SCETDG/33/INF.9, 14 and 75) can be
found at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf33.html.
Metal Hydride Storage Systems in Conveyances: A metal
hydride storage system is a single complete hydrogen storage system
that includes a receptacle, metal hydride, a pressure relief device, a
shut-off valve, service equipment and internal components. The HMR
currently do not prescribe
[[Page 53985]]
specific packaging or shipping methods for metal hydride storage
systems containing hydrogen. However, PHMSA has issued a number of
special permits to allow the use of these systems for transport. The UN
Model Regulations, in new Packing Instruction P205, prescribe standards
for the construction, qualification, marking and requalification of
such systems. We invite comments on whether similar standards should be
adopted in the HMR. The working documents (ST/SG/AC10/C.3/2008/72, 73
and 74) for this issue can be found at http://www.unece.org/trans/main/
dgdb/dgsubc/c32008.html.
In Vitro Testing for Corrosivity: In 1992, RSPA began
recognizing an alternative test method used to determine the
corrosivity of a hazardous material for transportation purposes under
the terms and conditions specified in DOT-SP 10904. The UN Sub-
Committee of Experts issued amendments to the UN Model Regulations
adopting similar in vitro test methods prescribed in OECD Guidelines
for the Testing of Chemicals No. 430, In Vitro Skin Corrosion:
Transcutaneous Electrical Resistance Test (TER) (2004); No. 431, In
Vitro Skin Corrosion: Human Skin Model Test (2004); and, No. 435, In
Vitro Membrane Barrier Test Method for Skin Corrosion (2006). Because
methods 430 and 431 can be used to determine corrosivity for other than
transportation purposes, they cannot be used to determine the Packing
Group assignment of a material that tests positive for corrosivity for
the purposes of hazardous materials transportation. A negative result
for corrosivity under methods 430 and 431 can, however, preclude
further testing to determine Packing Group assignment using method 404,
the current OECD Guideline involving in vivo testing or, method 435,
the newly adopted OECD Guideline involving in vitro testing. The
working document (ST/SG/AC.10/C.3/2007/50) for this issue can be found
at http://www.unece.org/trans/main/dgdb/dgsubc/c32007.html; the
informal document (UN/SCETDG/32/INF.49) on this issue can be found at
http://www.unece.org/trans/main/dgdb/dgsubc/c3inf32.html.
2. Additional Amendments
A number of other amendments may be considered based on the changes
adopted in the sixteenth revised edition of the UN Model Regulations. A
complete record of amendments included in the sixteenth revised edition
of the UN Model Regulations is contained in the report document ST/SG/
AC.10/36/Add.1 and may be obtained and reviewed at http://
www.unece.org/trans/main/dgdb/dgcomm/ac10rep.html. Supporting documents
for the amendments can be obtained and reviewed at http://
www.unece.org/trans/main/dgdb/dgsubc/c32009.html.
B. Fourth Revised Edition of the United Nations Recommendations on the
Transport of Dangerous Goods, Manual of Tests and Criteria (UN Manual
of Tests and Criteria)
The UN Sub-Committee of Experts issued several amendments to the UN
Manual of Tests and Criteria. One of the amendments is discussed in
detail in section II.A.1. As a result, we are soliciting comments on
the potential impact of requiring an additional test for certain
Division 1.4 explosive materials when determining eligibility for
inclusion in Compatibility Group S. A record of all the amendments to
the fourth revised edition of the UN Manual of Tests and Criteria is
contained in the report document ST/SG/AC.10/36/Add.2 and may be
obtained and reviewed at http://www.unece.org/trans/main/dgdb/dgcomm/
ac10rep.html. Working documents and information documents submitted to
the UN Subcommittee of Experts for consideration as amendments are
available at: http://www.unece.org/trans/main/dgdb/dgsubc/c32009.html.
C. 2011-2012 Edition of the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods (ICAO
Technical Instructions)
The ICAO Dangerous Goods Panel (ICAO DGP) has proposed a number of
amendments to the 2011-2012 edition of the ICAO Technical Instructions
and will be finalized in November 2009. When available, these
amendments will be posted on the ICAO DGP Web site at http://
www.icao.int/anb/FLS/DangerousGoods/dgp/. We will consider these
amendments for adoption in the HMR under either this rulemaking or
under docket HM-231A, discussed in section II.E. A record of the
proposed amendments to the Packing Instructions of the 2011-2012
edition of the ICAO Technical Instructions may be reviewed at http://
www.icao.int/anb/FLS/DangerousGoods/PackingInstructions/.
D. 2010 Edition (Amendment 35-10) of the International Maritime
Dangerous Goods Code (IMDG Code)
Upon review of the Maritime Safety Committee's amendments to the
IMDG Code, we will consider these amendments for adoption in the HMR.
When available, information regarding future IMDG Code amendments will
be posted on our website at http://www.phmsa.dot.gov/hazmat/regs/
international.
E. Amendments 6 and 7 to Transport Canada's Transport of Dangerous
Goods Regulations (TDG Regulations)
We are considering updating Sec. 171.7, Matter Incorporated by
Reference, to include Amendment 6 (SOR/2008-34) and Amendment 7 (SOR/
2007-179) to the TDG Regulations and are soliciting public comment on
authorizing their use under the HMR. The revised TDG Regulations,
including Amendments 6 and 7, can be found and reviewed at http://
www.tc.gc.ca/tdg/clear/tofc.htm.
F. Amendments to the International Standards and Modal Regulations
Under Consideration in Separate Dockets
The following is a partial listing of those international
harmonization issues that we will not be considering for adoption under
this docket and a brief explanation of why the issues will be
considered in separate rulemakings:
Requirements for Lithium Batteries: At this time, we are
not considering any amendments made to provisions for the carriage of
lithium batteries in the UN Model Regulations for adoption in the HMR
under this docket. Instead, we have initiated a separate rulemaking to
consider a broad range of measures to enhance the safe transportation
of lithium batteries by all modes (Docket No. PHMSA-2009-0095 (HM-
224F)).
Amendments to Air Transportation Packaging Requirements:
At this time, we are not considering any amendments made to provisions
for packaging of hazardous materials for transportation by aircraft
made to the upcoming 2011-2012 ICAO Technical Instructions for adoption
in the HMR under this docket. We are considering adoption of the
amendments to packaging provisions for air transport in a separate
rulemaking project under Docket No. PHMSA-2007-29364 (HM-231A). All
documents submitted to the docket thus far can be found and reviewed at
http://www.regulations.gov/.
Requirements for Electronic Data: As part of a separate
rulemaking project, PHMSA's Office of Hazardous Materials Safety in
collaboration with DOT modal administrations, emergency response
organizations and industry representatives, is exploring prospects for
the electronic transfer of information in order to provide better,
faster, and more accurate communication of hazard information. Under
the current paper-based system, emergency response efforts can be
delayed due to a lack of
[[Page 53986]]
timely and accurate information and poor communication between
transportation partners. We are working to determine regulatory
guidelines for the use of electronic communication as a complement, and
potentially as an alternative, to hard copies of shipping papers. Under
a PHMSA initiative titled HM-ACCESS (Hazardous Materials -- Automated
Cargo Communication for Efficient and Safe Shipments), we have
developed a roadmap that will guide our efforts to promote the adoption
of paperless systems both domestically and internationally.
Additionally, we are working within the UN Sub-Committee of Experts to
develop a baseline of current documentation requirements and consider
potential international regulatory amendments that will facilitate the
use of electronic documentation within the transportation system.
Additional information on the HM-ACCESS initiative and its roadmap can
be found in the docket for this rulemaking notice at
www.regulations.gov.
Requirements for Radioactive Materials: At this time, we
are not considering any amendments made to provisions for Class 7
(radioactive) materials in the UN Model Regulations for adoption in the
HMR under this docket. The HMR provisions for the carriage of Class 7
(radioactive) materials are normally based on changes contained in the
International Atomic Energy Agency (IAEA) publication, ``IAEA Safety
Standards Series: Regulations for the Safe Transport of Radioactive
Materials.'' Due to their complexity, we have initiated a separate
rulemaking to address changes to provisions for the transportation of
radioactive materials (Docket No. PHMSA-2009-0063 (HM-250)).
III. Request for Comments
Interested parties are urged to carefully consider the implications
of adopting or not adopting amendments to the international standards
and modal regulations into the HMR. We urge you to consider the effects
on transportation safety, transportation costs, and compliance burdens.
In addition to the specific questions regarding areas of concern
discussed above, we invite interested parties to submit data and
information on any other amendments with regard to the following
questions:
1. What safety concerns, if any, are associated with the adoption
or non-adoption of amendments made to the international standards and
modal regulations into the HMR?
2. What significant costs would be associated with the adoption or
non-adoption of amendments made to the international standards and
modal regulations into the HMR?
3. What other compliance burdens may be associated with the
adoption or non-adoption of amendments made to the international
standards and modal regulations into the HMR?
IV. Regulatory Analyses and Notices
PHMSA will base any future proposal for changes on the suggestions
and comments provided by interested parties and our own initiatives.
Additionally, any proposals would include the analyses required under
the following statutes and executive orders in the event we determine
that rulemaking is appropriate:
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order (E.O.) 12866 requires agencies to regulate in the
``most cost-effective manner,'' to make a ``reasoned determination that
the benefits of the intended regulation justify its costs,'' and to
develop regulations that ``impose the least burden on society.'' We
therefore request comments, including specific data if possible,
concerning the costs and benefits that may be associated with revisions
to the HMR based on the international harmonization issues presented in
this notice. A rule that is considered significant under E.O. 12866
must be reviewed and cleared by the Office of Management and Budget
before it can be issued.
B. Executive Order 13132
E.O. 13132 requires agencies to assure meaningful and timely input
by state and local officials in the development of regulatory policies
that may have a substantial, direct effect on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government. We invite state and local governments with an interest in
this rulemaking to comment on any effect that revisions to the HMR
relative to international harmonization may cause.
C. Executive Order 13175
E.O. 13175 requires agencies to assure meaningful and timely input
from Indian tribal government representatives in the development of
rules that ``significantly or uniquely affect'' Indian communities and
that impose ``substantial and direct compliance costs'' on such
communities. We invite Indian tribal governments to provide comments if
they believe there will be an impact.
D. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies
and Procedures
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), we must consider whether a proposed rule would have a
significant economic impact on a substantial number of small entities.
``Small entities'' include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. If you believe that revisions to the HMR
relative to international harmonization would have a significant
economic impact on small entities, please provide information on such
impacts.
Any future proposed rule would be 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 on small entities of a regulatory action are properly
considered.
E. Paperwork Reduction Act
Section 1320.8(d), Title 5, Code of Federal Regulations requires
that PHMSA provide interested members of the public and affected
agencies an opportunity to comment on information collection and
recordkeeping requests. It is possible that new or revised information
collection requirements could occur as a result of any future
rulemaking action.
F. Environmental Assessment
The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that federal agencies analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Counsel on Environmental Quality (CEQ) regulations
order federal agencies to conduct an environmental review considering
(1) the need for the proposed action, (2) alternatives to the proposed
action, (3) probable environmental impacts of the proposed action and
alternatives, and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b). PHMSA welcomes any data or
information related to environmental impacts that may result from a
future harmonization rulemaking.
[[Page 53987]]
G. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, 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 (65 FR 19477) or you
may visit http://www.dot.gov/privacy.html.
H. International Trade Analysis
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. For purposes of these requirements, Federal agencies
may participate in the establishment of international standards, so
long as the standards have a legitimate domestic objective, such as
providing for safety, and do not operate to exclude imports that meet
this objective. The statute also requires consideration of
international standards and, where appropriate, that they be the basis
for U.S. standards. PHMSA participates in the establishment of
international standards in order to protect the safety of the American
public, and we would assess the effects of any rule to ensure that it
does not exclude imports that meet this objective. Accordingly, any
proposals would be consistent with PHMSA's obligations under the Trade
Agreement Act, as amended.
I. Statutory/Legal Authority for This Rulemaking
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to
prescribe regulations for the safe transportation, including security,
of hazardous materials in intrastate, interstate, and foreign commerce.
Harmonization serves to facilitate international transportation; at the
same time, harmonization promotes the safety of people, property, and
the environment by reducing the potential for confusion and
misunderstanding that could result if shippers and transporters were
required to comply with two or more conflicting sets of regulatory
requirements. While the intent of this rulemaking is to consider
aligning the HMR with international standards, we review and consider
each amendment on its own merit based on its overall impact on
transportation safety and the economic implications associated with its
adoption into the HMR. Our goal is to harmonize without sacrificing the
current HMR level of safety and without imposing undue burdens on the
regulated public. Thus, as explained in the corresponding sections
above, we may not propose harmonization with certain specific
provisions of the UN Recommendations, the IMDG Code, and the ICAO TI.
Moreover, when proposing amendments to the HMR, consideration is given
to providing exceptions for domestic transportation that minimizes
compliance burden on the regulated community.
2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to
ensure that, to the extent practicable, regulations governing the
transportation of hazardous materials in commerce are consistent with
standards adopted by international authorities. This notice considers
potential amendments to the HMR that would maintain alignment with
international standards by incorporating various amendments. The
continually increasing amount of hazardous materials transported in
international commerce warrants the harmonization of domestic and
international requirements to the greatest extent. The majority of
amendments in any harmonization rule should result in cost savings and
ease the regulatory compliance burden for shippers engaged in domestic
and international commerce, including trans-border shipments within
North America.
J. 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 contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
Issued in Washington, DC on October 15, 2009 under authority
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Acting Associate Administrator for Hazardous Materials Safety.
[FR Doc. E9-25358 Filed 10-20-09; 8:45 am]
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