
[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]

BILLING CODE 4910-60-P
