[Federal Register Volume 67, Number 43 (Tuesday, March 5, 2002)]
[Rules and Regulations]
[Pages 9926-9927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5089]
[[Page 9926]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 172
[Docket No. RSPA-2002-11675 (HM-145M)]
RIN 2137-AD65
Hazardous Materials: Revisions to the List of Hazardous
Substances and Reportable Quantities
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, RSPA is amending the Hazardous Materials
Regulations (HMR) by revising the ``List of Hazardous Substances and
Reportable Quantities'' that appears in the table, ``Hazardous
Substances other than Radionuclides''. This action is required by the
Superfund Amendments and Reauthorization Act (SARA) of 1986, which
amended the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA). These laws require RSPA to regulate all
hazardous substances designated by the Environmental Protection Agency
(EPA). This final rule will enable shippers and carriers to identify
the affected CERCLA hazardous substances, comply with all applicable
HMR requirements, and make the required notifications if a discharge of
a hazardous substance occurs.
DATES: This amendment is effective on October 1, 2002. However,
immediate compliance with the regulations as amended in this final rule
is authorized.
FOR FURTHER INFORMATION CONTACT: Michael Johnsen (202) 366-8553, Office
of Hazardous Materials Standards, RSPA, 400 7th Street, SW, Washington,
DC 20590. Questions about hazardous substance designations or
reportable quantities should be directed to the Environmental
Protection Agency (EPA) at the RCRA/Superfund hotline at (800) 424-9346
or, in Washington, DC, (202) 382-3000.
SUPPLEMENTARY INFORMATION:
Background
Section 202 of SARA (Public Law 99-499) amended Section 306(a) of
CERCLA (Public Law 96-510), 42 U.S.C. 9656(a), by requiring the
Secretary of Transportation to list and regulate hazardous substances,
listed or designated under Section 101(14) of CERCLA, 42 U.S.C.
9601(14), as hazardous materials under the Federal hazardous materials
transportation law (49 U.S.C. 5101-5127). The Research and Special
Programs Administration (RSPA, we) carries out the rulemaking
responsibilities of the Secretary of Transportation under the Federal
hazardous materials transportation law, 49 CFR 1.53(b). This final rule
is necessary to comply with 42 U.S.C. 9656(a), as amended by Section
202 of SARA.
In carrying out that statutory mandate, we have no discretion to
determine what is or is not a hazardous substance or the appropriate
reportable quantity (RQ) for materials designated as hazardous
substances. This authority is vested in EPA. RSPA did not issue a
notice of proposed rulemaking prior to issuing this final rule. RSPA
lacks discretion concerning the regulation of hazardous substances
under the HMR, therefore, under the Administrative Procedure Act notice
would serve no purpose and thus is unnecessary.
Therefore, under the CERCLA scheme, EPA must issue final rules
amending the list of CERCLA hazardous substances, including adjusting
RQs, before RSPA can amend its list of hazardous substances. In the
preamble to a final rule on this subject issued under Docket HM-145F
(51 FR 42174; November 21, 1986), RSPA included the following
statement:
``It is RSPA's intention to make changes from time to time to the list
of hazardous substances or their RQ's in the Appendix as adjustments
are made by EPA.''
This final rule adjusts the ``List of Hazardous Substances and
Reportable Quantities'' that appears in Table 1 of Appendix A to
Sec. 172.101, based on the following EPA final rules that added or
removed entries to the EPA table--List of Hazardous Substances and
Reportable Quantities under CERCLA in 40 CFR 302.4:
(1) March 17, 2000, rule (65 FR 14472) removed two listings (2,4,6-
Tribromophenol and K140);
(2) November 8, 2000, rule (65 FR 67068) added two waste codes
generated from the chlorinated aliphatics industry (K174 and K175); and
(3) November 20, 2001, rule (66 FR 57258) added three waste codes
from petroleum refining (K176, K177 and K178).
In addition, this final rule corrects several errors to the ``List
of Hazardous Substances and Reportable Quantities'' that appears in
Table 1 of Appendix A to Sec. 172.101:
(1) The group of waste codes (K156, K157, K158, K169, K170, K171,
and K172) that appear in the table under ``2,4,6-Tribromophenol'' is
moved to the end of the list with the other K waste codes; and
(2) The RQs for ``Chloromethyl methyl ether'', ``Dichloromethyl
ether'', ``Methane, chloromethoxy-'' and ``Methane, oxybis(chloro-''
from 1 pound to 10 pounds.
This final rule will enable shippers and carriers to identify
CERCLA hazardous substances, comply with all applicable HMR and EPA
requirements, and make required notifications if a discharge of a
hazardous substance occurs. In addition to the reporting requirements
of the HMR found in Secs. 171.15 and 171.16, a discharge of a hazardous
substance is subject to EPA reporting requirements under 40 CFR 302.6
and may be subject to the reporting requirements of the U.S. Coast
Guard under 33 CFR 153.203.
Regulatory 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. The rule is not
considered significant under the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034). Because of the minimal
economic impact of this rule, preparation of a regulatory impact
analysis or a regulatory evaluation is not warranted.
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 preempts State, local and Indian tribe requirements but does
not adopt any regulation that has substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous 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
[[Page 9927]]
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 materials; 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), and (3)
above and would preempt State, local, and Indian tribe requirements not
meeting the ``substantively the same'' standard. This rule is required
by law. Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that if RSPA issues a regulation concerning any of the
covered subjects, RSPA 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 for these requirements is June
3, 2002.
C. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not significantly or uniquely affect the communities of the Indian
tribal governments, does not impose substantial direct compliance
costs, and is required by law, the funding and consultation
requirements of Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. The
Regulatory Flexibility Act applies only to final rules that are
preceded by notices of proposed rulemaking. Because this rule was not
preceded by an NPRM, no assessment is required. EPA addressed the
Regulatory Flexibility Act when it made the hazardous substances
designations and changes reflected in this rule.
E. Paperwork Reduction Act
This final rule does not impose any 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 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 imposes no mandates and, thus, does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995.
H. Environmental Assessment
The revisions in this final rule to the list of hazardous
substances regulated under the HMR are based on EPA rulemakings that
modified the EPA list of hazardous substances and reportable quantities
required by CERCLA. Readers should consult the EPA rulemaking dockets
for detailed information on the expected environmental impacts of these
changes.
List of Subjects in 49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.
In consideration of the foregoing, Title 49, part 172 of the Code
of Federal Regulations, is amended as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Appendix A to Sec. 172.101, Table 1 is amended by removing,
revising, and adding, in alphanumeric order, the following entries to
read as follows:
Appendix A to Sec. 172.101--List of Hazardous Substances and Reportable
Quantities
* * * * *
Table 1 to Appendix A--Hazardous Substances Other Than Radionuclides
------------------------------------------------------------------------
Reportable quantity (RQ) pounds
Hazardous substance (kilograms)
------------------------------------------------------------------------
[REMOVE]...............................
* * * * *
Dichloromethyl ether................... 1(0.454)
* * * * *
2,4,6-Tribromophenol................... 100
K140................................. 100
K156................................. 1
K157................................. 1
K158................................. 1
K169................................. 10
K170................................. 1
K171................................. 1
K172................................. 1
* * * * *
[REVISE]...............................
* * * * *
Chloromethyl methyl ether.............. 10 (4.54)
* * * * *
Dichloromethyl ether................... 10 (4.54)
* * * * *
Methane, chloromethoxy-................ 10 (4.54)
* * * * *
Methane, oxybis(chloro-................ 10 (4.54)
* * * * *
[ADD]..................................
* * * * *
K156................................. 1 (0.454)
K157................................. 1 (0.454)
K158................................. 1 (0.454)
K169................................. 10 (4.54)
K170................................. 1 (0.454)
K171................................. 1 (0.454)
K172................................. 1 (0.454)
K174................................. 1 (0.454)
K175................................. 1 (0.454)
K176................................. 1 (0.454)
K177................................. 5000 (2270)
K178................................. 1 (0.454)
------------------------------------------------------------------------
* * * * *
Issued in Washington, DC on February 22, 2002, under authority
delegated in 49 CFR part 1.
Ellen G. Engleman,
Administrator, Research and Special Programs Administration.
[FR Doc. 02-5089 Filed 3-4-02; 8:45 am]
BILLING CODE 4910-60-P