[Federal Register: August 8, 2006 (Volume 71, Number 152)]
[Rules and Regulations]
[Page 44929-44931]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08au06-12]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 171
[Docket No. PHMSA-2005-22208 (HM-240)]
RIN 2137-AE12
Hazardous Materials: Incorporation of Statutorily Mandated
Revisions to the Hazardous Materials Regulations; Correction
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule; correction.
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SUMMARY: On December 9, 2005, PHMSA published a final rule to revise
terminology, definitions, and requirements for consistency with the
Hazardous Materials Safety and Security Reauthorization Act of 2005.
These amendments included revising the definitions of ``hazmat
employee'' and ``hazmat employer''; modifying shipping paper retention
requirements; providing a security plan exception for farmers; and
replacing the term ``Exemption'' with ``Special permit.'' This final
rule corrects an error in the final rule. In addition, we are
clarifying the amendments applicable to shipping paper retention
requirements, the definition of ``hazmat employer,'' and the transition
from ``Exemption'' to ``Special permit.''
DATE: Effective date: August 8, 2006.
FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or Kurt
Eichenlaub, Office of Hazardous Materials Standards, (202) 366-8553,
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On December 9, 2005, the Pipeline and Hazardous Materials Safety
Administration (PHMSA, we) published a final rule under Docket No.
PHMSA-2005-22208 (HM-240) revising the Hazardous Materials Regulations
(HMR; 49 CFR parts 171-180) to reflect amendments made to the Federal
hazardous materials law (Federal hazmat law; 49 U.S.C. 5101 et seq.) by
the Hazardous Materials Safety and Security Reauthorization Act of 2005
(the Act; Title VII of Pub. L. 109-59, 119 Stat. 1144 (August 10,
2005)).
The December 9, 2005 final rule made the following amendments to
the HMR:
Revised the definitions of ``hazmat employee'' and
``hazmat employer'';
Revised shipping paper retention requirements;
Added a security plan exception for farmers;
Revised applicability of the HMR to matter subject to
postal laws and regulations; and
Replaced ``Exemption'' with ``Special permit.''
We received a number of questions from the regulated community
concerning the amendments in the final rule applicable to the revised
definition of ``hazmat employer'', new shipping paper retention
requirements, and the transition from ``Exemption'' to ``Special
permit.'' To ensure our responses to these questions reach a broad
audience, we are addressing them in this final rule.
II. Clarifications
A. Definition of ``Hazmat Employer''
We revised the definition of ``hazmat employer'' in Sec. 171.8 for
consistency with editorial revisions adopted under the Act. The revised
definition is not intended to apply more broadly than the previous
definition. The amendment does not expand the scope of the definition
or revise the training requirements applicable to hazmat employers in
subpart H of part 172 or the operational requirements applicable to
training in parts 173-180 of the HMR.
B. Revision of Shipping Paper Retention Requirements
In accordance with the Act, we revised the HMR to require shippers
to retain a copy of a shipping paper for a period of two years after
the shipping paper is provided to a carrier and to require carriers to
retain a copy of a shipping paper for a period of one year after the
date the shipping paper is received from the shipper. We also specified
that shippers and carriers of a hazardous waste must continue to retain
a shipping paper for 3 years after the material is accepted by the
initial carrier. PHMSA is aware of confusion in the regulated community
regarding the implementation of these provisions. The provisions for
shipping paper retention in this rulemaking became effective on January
9, 2006 (the effective date of the final rule). It was not our
intention to apply the revised shipping paper retention requirements
retroactively to documents retained for shipments made prior to the
effective date of the final rule. Shipments offered or accepted for
transportation prior to January 9, 2006 are not subject to the new
shipping paper retention provisions. For shipments offered or accepted
for transportation prior to January 9, 2006, each person who provides a
shipping paper and each person who receives a shipping paper must
retain a copy of the shipping paper or an electronic image thereof for
375 days after the shipment is accepted by the initial carrier. For
shipments offered or accepted for transportation on or after January 9,
2006, each person who provides a shipping paper must retain a copy of
the shipping paper or an electronic image thereof for two years after
the shipment is accepted by the initial carrier; each person who
receives a shipping paper must retain a copy of the shipping paper or
an electronic image thereof for one year after the shipment is accepted
by the initial carrier.
[[Page 44930]]
C. Conversion of Exemptions to Special Permits
The final rule adopted amendments to replace most of the references
in the HMR to the term ``exemption'' with ``special permit.'' See
Sec. Sec. 171.1, 171.2, 171.6, 171.8, 172.102, 172.203, 172.301,
172.302, 173.22, 173.22a, 173.124, 173.301, 173.403, 175.33, 176.31,
178.3, 179.3, 179.4, 180.3, 180.201, 180.205, 180.209, 180.213, and
180.215. In addition, we adopted the following revisions to the HMR to
address the transition to special permits:
--Current exemptions will be effective until they expire, are
terminated, or become due for renewal. Current exemptions will be
replaced by special permits at the time when a renewal application is
approved by the Associate Administrator. See definition of ``Special
permit'' in Sec. 171.8.
--Packagings and shipping papers prepared in accordance with a new
special permit issued on or after October 1, 2005 must be marked with
``DOT-SP'' and the appropriate special permit number, unless otherwise
specified by the special permit. However, packagings and shipping
papers previously marked ``DOT-E'' in accordance with a current
exemption generally may continue in use so long as the provisions in
the exemption remain valid. See Sec. Sec. 172.203, 172.302, and
173.23.
--An initial special permit will be valid for up to two years before it
expires or becomes due for renewal. A separate person wishing to
transport in the same manner as the applicant for a special permit may
apply for ``party status'' to the special permit. In this situation,
the party applying for party status will be considered a ``new''
special permit holder and will be issued a special permit authorization
letter, authorizing the party to operate as a grantee to the special
permit with an expiration date (up to two years) based on the date of
its application. If renewed, a special permit may be issued an
expiration date of up to four years from the date of issuance. See
Sec. Sec. 107.107, and 107.113.
--The Office of Hazardous Materials Exemptions and Approvals (OHMEA) is
renamed the Office of Hazardous Materials Special Permits and Approvals
(OHMSPA).
--The e-mail address for OHMSPA is revised from Exemptions@rspa.dot.gov
to Specialpermits@dot.gov. See Sec. Sec. 107.105, 107.107, and
107.109.
The provisions of the final rule applicable to the change from
``Exemptions'' to ``Special permits'' have caused some confusion among
current exemption holders concerning the continued use of the ``DOT-E''
exemption marking on packages and shipping papers. The final rule
allows for packagings authorized by an exemption issued prior to
October 1, 2007, to be plainly and durably marked ``DOT-E'' in lieu of
``DOT-SP'' (see Sec. 172.301(c)). This does not mean that all ``DOT-
E'' exemption markings must be changed to ``DOT-SP'' after October 1,
2007. As provided in Sec. 173.23(h), an exemption packaging that is
permanently marked ``DOT-E'' prior to October 1, 2007, may continue in
use with the ``DOT-E'' marking for the life of that exemption
packaging, so long as the terms of the exemption or special permit
remain valid.
As provided in Sec. 172.203(a), a shipping paper for a shipment
made under a special permit must include the notation ``DOT-SP''
followed by the special permit number assigned. As an alternative,
shipping papers for shipments made under an exemption or special permit
issued prior to October 1, 2007, may include the notation ``DOT-E''
instead of ``DOT-SP'' followed by the number assigned. Thus, a shipper
may use either notation for shipments made under an exemption or
special permit issued prior to October 1, 2007.
III. Correction
This final rule corrects an error in the December 9, 2005 final
rule. The final rule revised Sec. 171.1(d)(7) to read: ``Any matter
subject to the postal laws and regulations of the United States, except
in the case of an imminent hazard.'' This final rule is removing that
language from Sec. 171.1(d)(7) and restoring the language previously
in effect. In correcting this error, we confirm that the HMR do not
apply to any matter subject to the postal laws and regulations of the
United States and that the scope of the HMR has not changed.
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under authority of Federal Hazardous
Materials Transportation Law (Federal Hazmat Law; 49 U.S.C. 5101 et
seq.). Section 5103(b) of Federal Hazmat Law authorizes the Secretary
of Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. The amendments in this final rule are being
adopted for consistency with the Hazardous Materials Safety and
Security Reauthorization Act of 2005.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. This rule is not
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). There are no cost impacts
associated with this final rule.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 13132 (``Federalism''). This final rule
does not adopt any regulation that: (1) 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; (2) imposes substantial direct compliance
costs on State and local governments; or (3) preempts state law.
Therefore, preparation of a federalism assessment is not warranted.
D. 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 on Indian tribal governments, and does not preempt
tribal law, the funding and consultation requirements of Executive
Order 13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
I certify this final rule will not have a significant economic
impact on a substantial number of small entities. This rule corrects a
previously issued final rule for consistency with the Hazardous
Materials Safety and Security Reauthorization Act of 2005. There are no
cost impacts associated with this rule.
F. Unfunded Mandates Reform Act of 1995
This rule does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $120.7
million or
[[Page 44931]]
more to either State, local, or tribal governments, in the aggregate,
or to the private sector, and is the least burdensome alternative that
achieves the objective of the rule.
G. Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
H. Environmental Impact Analysis
There are no environmental impacts associated with this final rule.
I. 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.
List of Subjects in 49 CFR Part 171
Applicability, Hazardous materials transportation, Reporting and
recordkeeping requirements.
0
In consideration of the foregoing, amend 49 CFR Chapter I as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53;
Public Law 101-410 section 4 (28 U.S.C. 2461 note); Public Law 104-
134 section 31001.
0
2. In Sec. 171.1, revise paragraph (d)(7) to read as follows:
Sec. 171.1 Applicability of Hazardous Materials Regulations (HMR) to
persons and functions.
* * * * *
(d) * * *
(7) Any matter subject to the postal laws and regulations of the
United States.
* * * * *
Issued in Washington, DC, on August 1, 2006, under authority
delegated in 49 CFR part 1.
Thomas J. Barrett,
Administrator.
[FR Doc. E6-12804 Filed 8-7-06; 8:45 am]
BILLING CODE 4910-60-P