[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51236-51238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24714]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 172
[Docket HM-222B; Amdt. No. 172-149]
RIN 2137-AC76
Revision of Miscellaneous Hazardous Materials Regulations;
Regulatory Review; Responses to Petitions for Reconsideration
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; Responses to petitions for reconsideration.
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SUMMARY: RSPA is publishing two letters in which it denied petitions
for reconsideration on provisions of a May 30, 1996, final rule dealing
with reducing the requirements pertaining to training frequency and
emergency response telephone numbers.
DATES: The effective date for the final rule published under Docket HM-
222B on May 30, 1996 (61 FR 27166) remains October 1, 1996.
FOR FURTHER INFORMATION CONTACT: John A. Gale, (202) 366-8553; Office
of Hazardous Materials Standards, or Karin V. Christian, (202) 366-
4400, Office of the Chief Counsel, RSPA, Department of Transportation,
Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION: On May 30, 1996, RSPA published a final rule
under Docket HM-222B (61 FR 27166) which amended the Hazardous
Materials Regulations (HMR) based on its review of the HMR and on
written and oral comments received from the public concerning
regulatory reform. These changes included reducing the requirements
pertaining to training frequency, incident reporting, and emergency
response telephone numbers. RSPA's review of the HMR was based on the
March 4, 1995, memorandum from President Clinton calling for a review
of all agency regulations and elimination or revision of those
regulations that are outdated or in need of reform. The effective date
of the rule was October 1, 1996, but immediate compliance was
authorized.
RSPA has received three petitions for reconsideration in regard to
the amendments made under Docket HM-222B. Two of the petitioners, the
Air Transport Association of America and the Air Line Pilot Association
(ALPA), requested that RSPA reconsider its decision to decrease the
recurrent training requirements from two to three years. The Air
Transport Association and ALPA requested that, for shippers of
hazardous materials by air, the training frequency be increased from
three years to one year. The other petitioner, the American Trucking
Association, requested that RSPA reconsider its decision to grant
exceptions from the 24-hour emergency response telephone number
requirement for limited quantities and specific materials, such as
engines, internal combustion. On September 20, 1996, RSPA denied the
petitions for reconsideration in letters which have been sent to each
petitioner. This document publishes verbatim the letters of denial as
follows:
Response to American Trucking Associations
September 20, 1996.
Mr. Paul Bomgardner,
Hazardous Materials Specialist, American Trucking Associations, 2200
Mill Road, Alexandria, VA 22314-4677
Dear Mr. Bomgardner: This letter responds to your July, 18,
1996, Petition for Reconsideration (Petition) regarding a provision
of the Final Rule issued under Docket HM-222B, published in the
Federal Register on May 30, 1996, at 61 FR 27166. The Petition
requests that the Research and Special Programs Administration
(RSPA) reconsider the decision to amend 49 CFR 172.604 to except
additional materials from the requirement to have a 24-hour
emergency response telephone number.
The final rule in Docket HM-222B excepted the following
materials from the requirement to have a 24-hour emergency response
telephone number: limited quantities of hazardous materials; and
[[Page 51237]]
materials described under the shipping names ``Engines, internal
combustion''; ``Battery powered equipment''; ``Battery powered
vehicle''; ``Wheelchair, electric''; ``Carbon dioxide, solid'';
``Dry ice''; ``Fish meal, stabilized''; ``Fish scrap, stabilized'';
``Castor bean''; ``Castor meal''; ``Castor flake''; ``Castor
pomace''; and ``Refrigerating machine''. This change is effective
October 1, 1996; however, voluntary compliance with this change, and
the other amendments made under Docket HM-222B to the Hazardous
Materials Regulations (HMR), 49 CFR Parts 171-180 was authorized as
of May 30, 1996.
The basis for the Petition was that the exception would create a
``training nightmare'' and possibly promote non-compliance. The
Petition went on to say that drivers and stock workers will have to
memorize the list of materials and proper shipping names listed in
Sec. 172.604 and that this change will causes additional burdensome
training which only tends to add confusion to the regulations and
costs to compliance.
RSPA acknowledges that the exceptions from the 24-hour emergency
response telephone number adopted under Docket HM-222B may cause a
minimal increase in the training costs of carriers of hazardous
materials. However, this cost is far outweighed by the cost savings
to shippers of hazardous materials who do not have to maintain a 24-
hour emergency response telephone number. RSPA notes that many of
the materials, such as ``Engines, internal combustion,'' which have
been excepted from this requirement present a very limited hazard in
transportation. Other materials excepted from this requirement, such
as dry ice, are not subject to the HMR when transported by highway
and are currently being transported without emergency response
information accompanying the shipments. The exceptions provided in
this final rule only apply to the maintenance of a 24-hour telephone
number. Shipments subject to the HMR which are transported by
highway would still be accompanied by shipping papers and emergency
response information. Motor carriers, therefore, will still have
access to appropriate initial actions to mitigate incidents. Based
on the foregoing, RSPA is denying ATA's petition to rescind the
amendment dealing with exceptions from the 24-hour emergency
response telephone number requirement.
Sincerely,
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
Response to Air Transport Association of America and Air Line Pilots
Association
September 20, 1996
Captain Larry Farris,
Chairman, Dangerous Goods Committee, Air Line Pilots Association,
Post Office Box 1189, Herndon, VA 22070
Mr. Frank J. Black,
Director, Cargo Services and Secretary, Air Transport Association of
America, 1301 Pennsylvania Avenue, NW., Washington, DC 20004-1707.
Dear Messrs. Farris and Black: The Research and Special Programs
Administration (RSPA) denies your petitions for reconsideration on
the provisions in RSPA's final rule in Docket HM-222B that decreased
the training frequency for hazmat employees from two to three years.
The final rule in Docket HM-222B decreases the training
frequency for hazmat employees from two to three years (49 CFR
172.704). See 61 FR 27166 (May 30, 1996). This change is effective
October 1, 1996; however, voluntary compliance with this change, and
the other amendments made under Docket HM-222B to the Hazardous
Materials Regulations (HMR), 49 CFR Parts 171-180, was authorized as
of May 30, 1996.
On June 21, 1996, the Air Transport Association of America (ATA)
and on June 28, 1996, the Air Line Pilot's Association (ALPA)
petitioned RSPA to rescind its decision to decrease the recurrent
training requirements from two to three years. The ATA and ALPA
requested that, for shippers of hazardous materials by air, the
training frequency be increased from three years to one year. The
ATA stated that: ``[w]e feel strongly that reducing the training
frequency will adversely affect safety. It is common knowledge that
many unsophisticated shippers do a very poor job of training today.
The extension of time will only make it worse.'' The ATA went on to
say that it is important that training and awareness of the HMR be
properly reinforced at every opportunity. ALPA stated that it
believes that RSPA has compromised public safety by extending the
training cycle to three years and that it has elected wrongly to
divert from the international regulations. ALPA went on to say that
the transportation environment by air is different than other modes
and that it is very important that those persons shipping and/or
offering hazmat have knowledge and current recent awareness of
potential dangers which hazardous materials may pose while being
transported in this environment.
RSPA stated in the preamble to the final rule that one of the
most important regulatory requirements in the HMR is its training
requirements. Proper training increases a hazmat employee's
awareness of safety considerations involved in the loading,
unloading, handling, storing, and transportation of hazardous
materials. An effective training program reduces hazardous materials
incidents resulting from human error and mitigates the effects of
incidents when they occur. In the final rule, RSPA went on to say
that the ``importance of RSPA's training requirements is not
diminished by a decrease in the frequency of training from two to
three years.''
We do not believe that safety has been compromised by decreasing
the training frequency from two to three years. Under the training
requirements in the HMR, any person who performs a function subject
to the HMR may not perform that function unless trained in
accordance with the requirements that apply to that function. In
addition, a hazmat employer must ensure that each hazmat employee is
thoroughly instructed in the requirements that apply to functions
performed by that employee. If RSPA adopts a new regulation, or
changes an existing regulation, that relates to a function performed
by a hazmat employee, that hazmat employee must be instructed in
those new or revised function-specific requirements without regard
to the three year training cycle. It is not necessary to completely
retrain the employee sooner than the required three year cycle. The
only instruction required is that necessary to assure knowledge of
the new or revised regulatory requirement. For example, if a new
requirement is added to the shipping paper requirements, a hazmat
employee must be instructed regarding the new requirement prior to
preparation of a shipping paper or performance of a similar function
affected by the new or revised rule. It is not necessary to test the
hazmat employee or retain records of the instruction provided in the
new or revised requirements until the next scheduled retraining at
or within the three year cycle. Under HM-222B, RSPA revised the
training rules to make it clear that RSPA does not intend that
millions of detailed records be created and retained and associated
testing be conducted each time a hazmat employee is instructed in
regard to a change in the regulations within the three year cycle.
RSPA also does not believe that it was wrong to divert from the
international regulations by decreasing the training frequency from
two to three years. The decrease in training frequency for persons
who offer for transportation and transport hazardous materials in
domestic transportation does not in any way impede international
transportation. A person who complies with the international
requirement to retrain every two years will also satisfy the
domestic requirement to retrain every three years.
The ATA and ALPA petitions exceed the scope of the Docket HM-
222B rulemaking, which involved changing a two-year training cycle
to a three-year training cycle. The petitions also fail to explain
whether or how the proposed air transportation requirement would
apply to shippers that offer for transportation by both air
transportation and one or more other modes of transportation. The
multi-modal impact, as well as cost/benefit ramifications, of this
proposal deserves public notice and comment.
RSPA believes that there are alternatives to a regulatory
requirement that will enhance the safety of hazardous material
transported by air. We are distributing informational brochures to
educate the flying public. We are also preparing a video to better
inform shippers of the requirements for hazardous materials
transported by air. Finally, we will be expanding our training
efforts for shippers, carriers, and Federal enforcement personnel.
In conclusion, neither ATA nor ALPA provided any information
that would warrant changing the frequency of training from three
years to one year. Furthermore, you have not demonstrated that the
benefits of your proposal would outweigh the costs. If you have
additional information, we request that you provide it in a petition
for rulemaking. Our rules on petitions for rulemaking are found in
Sec. 106.31. These rules were amended in a Final Rule published on
June 14, 1996 (61 FR 30175).
[[Page 51238]]
Sincerely,
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
Issued in Washington, DC on September 20, 1996, under the
authority delegated in 49 CFR part 1.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-24714 Filed 9-30-96; 8:45 am]
BILLING CODE 4910-60-P
