02-27735. Hazardous Materials: Retention of Shipping Papers

AGENCY:

Research and Special Programs Administration (RSPA), DOT.

ACTION:

Final rule; response to appeals.

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, [phone], 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 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 §§ 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 §§ 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 § 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 §§ 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 § 176.24 of the HMR should be modified to reflect the provisions of § 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.

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 § 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 § 172.201, paragraph (e) as added in the July 12, 2002 final rule, 67 FR 46127, is revised to read as follows:

§ 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 § 172.200(a), 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 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 § 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:

§ 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 § 175.30, paragraph (a)(2) as amended in the July 12, 2002 final rule, 67 FR 46128, is revised to read as follows:

§ 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 § 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 § 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:

§ 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 § 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 § 177.817, paragraph(f) as added in the July 12, 2002 final rule, 67 FR 46128, is revised, to read as follows:

§ 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 § 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.

Issued in Washington, DC, on October 25, 2002, under authority delegated in 49 CFR part 1.

Ellen G. Engleman,

Administrator.