[Federal Register Volume 67, Number 212 (Friday, November 1, 2002)]
[Rules and Regulations]
[Pages 66571-66575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27735]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 172, 174, 175, 176, and 177
[Docket No. RSPA-01-10568 (HM-207B)]
RIN 2137-AC64
Hazardous Materials: Retention of Shipping Papers
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; response to appeals.
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SUMMARY: In this final rule, RSPA is making changes to a final rule
published on July 12, 2002, in which RSPA amended the Hazardous
Materials Regulations (HMR) to require shippers and carriers to retain
a copy of each hazardous material shipping paper, or an electronic
image thereof, for a period of 375 days after the date the hazardous
material is accepted by a carrier. This final rule responds to five
appeals of the July 12, 2002 final rule.
EFFECTIVE DATES: This final rule is effective on November 1, 2002.
Voluntary compliance is authorized as of August 12, 2002.
FOR FURTHER INFORMATION CONTACT: Deborah Boothe of the Office of
Hazardous Materials Standards, (202) 366-8553, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
I. Background
On July 12, 2002, The Research and Special Programs Administration
(RSPA, we) published a final rule under Docket HM-207B (67 FR 46123)
amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171-
180) to require shippers and carriers to retain a copy of each
hazardous material shipping paper, or an electronic image thereof, for
a period of 375 days after the date the hazardous material is accepted
by a carrier. The July 12, 2002 final rule incorporates into the HMR
the requirements in the Federal hazardous material transportation law
(Federal hazmat law) to require that, after a hazardous material ``is
no longer in transportation,'' each offeror and carrier of a hazardous
material must retain the shipping paper ``or electronic image thereof
for a period of 1 year to be accessible through their respective
principal places of business.'' 49 U.S.C. 5110(e), added by Public Law
103-311, Title I, section 115, 108 Stat. 1678 (Aug. 26, 1994). That
section also provides that the offeror and carrier ``shall, upon
request, make the shipping paper available to a Federal, State, or
local government agency at reasonable times and locations.''
The July 12, 2002 final rule requires each person who offers or
transports a hazardous material in commerce to retain a copy of the
shipping paper for 375 days after the date the shipment is accepted by
the initial carrier. To facilitate enforcement of this requirement, the
final rule requires each
[[Page 66572]]
shipping paper copy to include the date of initial acceptance. For rail
shipments, the date of acceptance may be the date on the shipment
waybill or bill of lading. The final rule also requires that copies of
shipping papers must be made immediately available, if requested, to an
authorized government official.
II. Appeals Received in Response to the Final Rule
We received five appeals of the July 12, 2002 final rule from the
following industry associations involved in the transportation of
hazardous materials: (1) American Trucking Associations (ATA), (2)
Dangerous Goods Advisory Council (DGAC), (3) Truckload Carriers
Association (TCA), (4) National Propane Gas Association (NPGA), and (5)
International Vessel Operators Hazardous Materials Association (VOHMA).
The appellants raise two major issues of concern, and they request
clarification or revision of the final rule to provide for easier
compliance. All the appellants expressed concern about the final rule
requirement for shipping papers to be made ``immediately'' available,
upon request, to an authorized official. In addition, VOHMA requests us
to modify the final rule to permit a date on a bill of lading or
waybill to be used as the shipment acceptance date for vessel
shipments.
A. ``Immediately Available''
All appellants request that we remove the words ``immediately
available'' in Sec. Sec. 172.201(e), 174.24(b), 175.30(a)(2),
176.24(b), and 177.817(f), as modified in the July 12, 2002 final rule.
Appellants argue that requiring a copy of a shipping paper, or an
electronic image thereof, to be made immediately available upon request
could be unreasonable and burdensome. Appellants note that we did not
define the term ``immediately''; thus, appellants expressed concern
that enforcement personnel may be unreasonable in the way that they
interpret the requirement. DGAC provides a definition for
``immediately'' as taken from the American Heritage Dictionary of the
English Language. According to DGAC, the dictionary definition ``states
these words `* * * imply no delay whatever, as between request and
response.' * * * The word `immediately' does not appear in 49 U.S.C.
5110(e) * * * In fact, its use appears to conflict with the
congressional intent for Paragraph 5110(e) * * *'' Appellants suggest
that 48 hours is a reasonable time frame to provide an authorized
official with requested documents for review and inspection. According
to appellants, the final rule as written is different from the Federal
Motor Carrier Safety Administrations's (FMCSA) definition of a
``principal place of business'' which allows motor carriers to make
records available for inspection at its principal place of business
within 48 hours (excluding weekends and holidays). Therefore, they
contend that allowing 48 hours as a time frame would more closely
resemble the FMCSA regulations in 49 CFR 390.5 concerning the
definition of a ``principal place of business.''
In response to the appeals, we are revising Sec. Sec. 172.201(e),
174.24(b), 175.30(a)(2), 176.24(b), and 177.817(f) in this final rule
by removing the word ``immediately.'' Persons subject to the shipping
paper retention requirement must make copies available, upon request,
``at reasonable times and locations.'' This change aligns the language
in the regulations with the statutory language establishing the
shipping paper retention requirement in Sec. 5110(d) of Federal hazmat
law. Generally, we expect that the requested documents will be made
available to an inspector some time on the day that he or she is at the
inspection site. However, the words ``at reasonable times and
locations'' also take into account the fact that, in some instances,
the principal place of business may be in a different time zone. VOHMA
notes that ``some of the provisions of [the final rule] do not address
international business considerations. For cargo originating at a
terminal operated by the carrier in the Far East where the shipping
documents are maintained in the carriers files as required by the IMDG
code, there may be a delay of 12 or more hours due to time zones and
international date lines.'' VOHMA, therefore, asks us to amend the
final rule language to account for differences in time zones.
We do not agree with appellants' suggestion to allow 48 hours for
compliance with an authorized official's request for the shipping
document copies. As we stated in the preamble to the July 12, 2002
final rule, electronic capabilities such as facsimile machines and
email permit companies to transmit copies of shipping papers from
shipping locations to a principal place of business very quickly. We
also do not believe that appellants have any basis for their fears
about unreasonable enforcement of this requirement.
B. Shipment Acceptance Date
The July 12, 2002 final rule permits rail carriers to use the date
on the shipment waybill or bill of lading as the date of acceptance
required to be included on shipping papers. VOHMA requests a similar
provision for shipments by vessel: ``The interlining of freight
containers in the intermodal transportation system and similarity in
booking and transfer practices should mean that the acceptability of
the last modified version of the shipping paper should extend to the
water mode as well. The date of the booking for a voyage corresponds to
the date of booking for rail carriage and is currently captured in the
electronic system.'' As we stated in the preamble to the July 12, 2002
final rule, it was not our intention to require shippers and carriers
to implement new systems for preparing and dating shipping
documentation. Shipping paper retention requirements should be
sufficiently flexible to accommodate current transportation practices
concerning acceptance dates for shipments. We understand that air
carrier systems for completing and transmitting shipping documentation
are similar to those for rail and vessel shipments. Therefore, in this
final rule, we are revising Sec. Sec. 172.201, 175.30, and 176.24 to
permit use of the date on a waybill, airbill, or bill of lading for the
date of acceptance required on a shipping paper.
C. Miscellaneous Clarification
VOHMA notes that a shipping paper prepared in accordance with the
International Maritime Organization's Dangerous Goods Code (IMDG Code)
may be used for further transportation within the United States. VOHMA
suggests that Sec. 176.24 of the HMR should be modified to reflect the
provisions of Sec. 171.12 authorizing transportation of shipments
prepared in accordance with the IMDG Code. We agree, and are making the
suggested change in this final rule.
III. 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 Executive Order 12866 and was not reviewed by the Office of
Management and Budget. This final rule is not considered significant
under the regulatory policies and procedures of the Department of
Transportation (44 FR 11034).
This final rule implements a statutory requirement that has been in
effect since 1994. We do not anticipate any additional costs on
offerors and carriers of hazardous materials. Therefore, preparation of
a regulatory evaluation is not warranted.
[[Page 66573]]
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism'').
Federal hazardous materials transportation law preempts any State,
local, or Indian tribe requirement on the preparation, execution, and
use of shipping documents related to hazardous materials that is not
substantively the same as this final rule, 49 U.S.C. 5125(b)(1)(B), but
this final rule does not have 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. The consultation and funding requirements of Executive
Order 13132 do not apply.
Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting state, local, and Indian tribe requirements that are not
substantively the same as Federal requirements on certain subjects.
These 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 material; 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 item 3 above and preempts State, local,
and Indian tribe requirements not meeting the ``substantively the same
as'' standard. This final rule is necessary to assure that the HMR
requirements for retention of shipping papers are consistent with
Federal hazardous materials transportation law.
Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if DOT issues a regulation concerning any of these
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 of this final rule is 90 days from
publication of this final rule in the Federal Register.
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 have tribal implications, does not impose substantial direct
compliance costs, and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to assess the impact of its regulations 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. This final rule
implements a statutory requirement that has been in effect since 1994.
This final rule will not impose additional costs on offerors and
carriers of hazardous material. I hereby certify that, while the final
rule applies to a substantial number of small entities, there will not
be a significant economic impact on those small businesses.
E. Unfunded Mandates Reform Act of 1995
This final rule imposes no mandates and thus does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it displays a valid OMB
control number. No new burdens are proposed under this final rule. RSPA
has a current information collection approval under OMB No. 2137-0034,
``Shipping Papers and Emergency Response Information'' which includes
the shipping paper retention requirement in the burden estimates.
G. 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.
H. Environmental Assessment
This final rule does not affect packaging or hazard communication
requirements for shipments of hazardous materials transported in
commerce. We find that there are no significant environmental impacts
associated with this final rule.
List of Subjects
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Markings, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Railroad
safety.
49 CFR Part 175
Air Carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
In consideration of the foregoing, we are amending 49 CFR Parts
172, 174, 175, 176, and 177, 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 Sec. 172.201, paragraph (e) as added in the July 12, 2002
final rule, 67 FR 46127, is revised to read as follows:
Sec. 172.201 Preparation and retention of shipping papers.
* * * * *
(e) Each person who provides a shipping paper must retain a copy of
the shipping paper required by Sec. 172.200(a), or an electronic image
thereof, that is accessible at or through its principal place of
business and must make the
[[Page 66574]]
shipping paper available, upon request, to an authorized official of a
Federal, State, or local government agency at reasonable times and
locations. For a hazardous waste, the shipping paper copy must be
retained for three years after the material is accepted by the initial
carrier. For all other hazardous materials, the shipping paper copy
must be retained for 375 days after the material is accepted by the
initial carrier. Each shipping paper copy must include the date of
acceptance by the initial carrier, except that, for rail, vessel, or
air shipments, the date on the shipment waybill, airbill, or bill of
lading may be used in place of the date of acceptance by the initial
carrier. A motor carrier (as defined in Sec. 390.5 of Subchapter B of
Chapter III of Subtitle B) that uses a shipping paper without change
for multiple shipments of a single hazardous material (i.e., one having
the same shipping name and identification number) may retain a single
copy of the shipping paper, instead of a copy for each shipment made,
if the carrier also retains a record of each shipment made, to include
shipping name, identification number, quantity transported, and date of
shipment.
PART 174--CARRIAGE BY RAIL
3. The authority citation for part 174 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
4. Section 174.24(b) as added by the July 12, 2002 final rule, 67
FR 46128, is revised to read as follows:
Sec. 174.24 Shipping papers.
* * * * *
(b) Each person receiving a shipping paper required by this section
must retain a copy or an electronic image thereof, that is accessible
at or through its principal place of business and must make the
shipping paper available, upon request, to an authorized official of a
Federal, State, or local government agency at reasonable times and
locations. For a hazardous waste, each shipping paper copy must be
retained for three years after the material is accepted by the initial
carrier. For all other hazardous materials, each shipping paper copy
must be retained for 375 days after the material is accepted by the
initial carrier. Each shipping paper copy must include the date of
acceptance by the initial carrier. The date on the shipping paper may
be the date a shipper notifies the rail carrier that a shipment is
ready for transportation, as indicated on the waybill or bill of
lading, as an alternative to the date the shipment is picked up, or
accepted, by the carrier.
PART 175--CARRIAGE BY AIRCRAFT
5. The authority citation for part 175 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
6. In Sec. 175.30, paragraph (a)(2) as amended in the July 12,
2002 final rule, 67 FR 46128, is revised to read as follows:
Sec. 175.30 Accepting and inspecting shipments.
(a) * * *
(1) * * *
(2) Described and certified on a shipping paper prepared in
duplicate in accordance with part 172 of this subchapter or as
authorized by Sec. 171.11 of this subchapter. Each person receiving a
shipping paper required by this section must retain a copy or an
electronic image thereof, that is accessible at or through its
principal place of business and must make the shipping paper available,
upon request, to an authorized official of a federal, state, or local
government agency at reasonable times and locations.
For a hazardous waste, each shipping paper copy must be retained
for three years after the material is accepted by the initial carrier.
For all other hazardous materials, each shipping paper copy must be
retained for 375 days after the material is accepted by the carrier.
Each shipping paper copy must include the date of acceptance by the
carrier. The date on the shipping paper may be the date a shipper
notifies the air carrier that a shipment is ready for transportation,
as indicated on the airbill or bill of lading, as an alternative to the
date the shipment is picked up or accepted by the carrier. Only an
initial carrier must receive and retain a copy of the shipper's
certification, as required by Sec. 172.204 of this subchapter.
* * * * *
PART 176--CARRIAGE BY VESSEL
7. The authority citation for part 176 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
8. Section 176.24 as amended in the July 12, 2002 final rule, 67 FR
46128,is revised to read as follows:
Sec. 176.24 Shipping papers.
(a) A person may not accept a hazardous material for transportation
or transport a hazardous material by vessel unless that person has
received a shipping paper prepared in accordance with part 172 of this
subchapter, or as authorized by Sec. 171.12 of this subchapter, unless
the material is excepted from shipping paper requirements under this
subchapter.
(b) Each person receiving a shipping paper required by this section
must retain a copy or an electronic image thereof, that is accessible
at or through its principal place of business and must make the
shipping paper available, upon request, to an authorized official of a
Federal, State, or local government agency at reasonable times and
locations. For a hazardous waste, each shipping paper copy must be
retained for three years after the material is accepted by the initial
carrier. For all other hazardous materials, each shipping paper copy
must be retained for 375 days after the material is accepted by the
carrier. Each shipping paper copy must include the date of acceptance
by the carrier. The date on the shipping paper may be the date a
shipper presents a booking for carriage with the carrier as an
alternative to the date the shipment is picked up, accepted, or loaded
on the vessel by the carrier.
PART 177--CARRIAGE BY PUBLIC HIGHWAY
9. The authority citation for part 177 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
10. In Sec. 177.817, paragraph(f) as added in the July 12, 2002
final rule, 67 FR 46128, is revised, to read as follows:
Sec. 177.817 Shipping papers.
* * * * *
(f) Retention of shipping papers. Each person receiving a shipping
paper required by this section must retain a copy or an electronic
image thereof, that is accessible at or through its principal place of
business and must make the shipping paper available, upon request, to
an authorized official of a Federal, State, or local government agency
at reasonable times and locations. For a hazardous waste, the shipping
paper copy must be retained for three years after the material is
accepted by the initial carrier. For all other hazardous materials, the
shipping paper copy must be retained for 375 days after the material is
accepted by the carrier. Each shipping paper copy must include the date
of acceptance by the carrier. A motor carrier (as defined in Sec.
390.5 of Subchapter B of Chapter III of Subtitle B) that uses a
shipping paper without
[[Page 66575]]
change for multiple shipments of a single hazardous material (i.e., one
having the same shipping name and identification number) may retain a
single copy of the shipping paper, instead of a copy for each shipment
made, if the carrier also retains a record of each shipment made, to
include shipping name, identification number, quantity transported, and
date of shipment.
Issued in Washington, DC, on October 25, 2002, under authority
delegated in 49 CFR part 1.
Ellen G. Engleman,
Administrator.
[FR Doc. 02-27735 Filed 10-31-02; 8:45 am]
BILLING CODE 4910-60-P