[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Rules and Regulations]
[Pages 38642-38644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18822]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 172
[Docket HM-216; Amdt No. 172-148]
RIN 2137-AC66
Transportation of Hazardous Materials by Rail; Miscellaneous
Amendments; Response to Petitions for Reconsideration
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; Response to petitions for reconsideration.
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SUMMARY: RSPA is publishing a June 28, 1996 letter in which it denied
petitions for reconsideration of a provision in the June 5, 1996 final
rule in this proceeding which allowed rail shippers and carriers to
discontinue use of the RESIDUE placard on June 30, 1996, three months
in advance of the effective date of the June 5 final rule.
DATES: Effective date: The effective date for the final rule published
under
[[Page 38643]]
Docket HM-216 on June 5, 1996 (61 FR 28666) remains October 1, 1996.
Compliance date: Voluntary compliance with the regulations, as
amended in the final rule under Docket HM-216 on June 5, 1996, remains
June 30, 1996.
FOR FURTHER INFORMATION CONTACT: Beth Romo, telephone (202) 366- 8553,
Office of Hazardous Materials Standards, Research and Special Programs
Administration, Washington, DC 20590-0001, or James H. Rader, telephone
(202) 366-0510, Office of Safety Assurance and Compliance, Federal
Railroad Administration, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION: On June 6, 1996, RSPA published a final rule
which amended the Hazardous Materials Regulations to incorporate a
number of changes to rail requirements. The effective date of the rule
is October 1, 1996, but compliance with all of the changes made in the
rule was permitted beginning June 30, 1996. RSPA received several
petitions for reconsideration concerning one provision of the June 5,
1996 final rule allowing rail shippers and carriers to discontinue use
of the RESIDUE placard on June 30, 1996. On June 28, 1996, RSPA denied
the petitions for reconsideration in a letter which has been sent to
each petitioner, each party writing in support of the petitions for
reconsideration, and each party who submitted comments on the original
proposal to discontinue use of the RESIDUE placard. The letter of
denial included a statement of enforcement policy by the Federal
Railroad Administration (FRA). This document publishes verbatim the
letter of denial and FRA enforcement policy as follows:
June 28, 1996
By Facsimile
Mr. Charles Keller, Director, Bureau of Explosives, Association of
American Railroads, 80 F Street, NW., Washington, DC 20001-1564
Mr. Jean Ouellete, Chairman, Dangerous Goods Subcommittee, Railway
Association of Canada, 800 Rene-Levesque Blvd. West, Suite 1105,
Montreal, Quebec H3B 1X9, Canada.
Gentlemen: The Research and Special Programs Administration
(RSPA) denies your petitions for reconsideration--and similar
petitions submitted by the other parties identified below--of the
provision in RSPA's final rule in Docket HM-216 that allows rail
shippers and carriers to discontinue use of the ``RESIDUE'' placard
on June 30, 1996.
The final rule in Docket HM-216 eliminates use of a ``RESIDUE''
placard, currently required only for the transportation of the
residue of a hazardous material in a tank car. 49 C.F.R. 172.510,
172.526. See 61 FR 28666, 28667-68, 28676 (June 5, 1996). This
change is effective on October 1, 1996; however, voluntary
compliance with this change, and the other amendments made in HM-216
to the Hazardous Materials Regulations (HMR), 49 C.F.R. Parts 171-
180, is authorized on June 30, 1996. 61 Fed. Reg. 28666. In the
absence of this June 30 voluntary compliance date, rail shippers and
carriers would be required to continue use of the ``RESIDUE''
placard until September 30, 1996, and then begin using (on tank cars
holding only a residue of a hazardous material) the placard required
for a tank car containing a full load of the applicable hazardous
material with respect to shipments on and after October 1, 1996.
In a June 14, 1996 facsimile memorandum, the Association of
American Railroads (AAR) petitioned RSPA to postpone the June 30,
1996 voluntary compliance date for elimination of the ``RESIDUE''
placard until September 1, 1996. AAR stated that, with the June 30,
1996 voluntary compliance date, shippers could discontinue using the
``RESIDUE'' placard before rail carriers had sufficient time before
June 30 to issue instructions and train their personnel with regard
to this change. AAR cautioned that the lack of time to train rail
carrier personnel would create ``a very real chance that tank cars
will be delayed due to crew confusion, a situation that is not in
the interest of safety.''
Similar petitions for reconsideration were also submitted by the
Burlington Northern Santa Fe Railroad (BNSF), Consolidated Rail
Corporation, the Illinois Central Railroad, and the Norfolk Southern
Corporation (NS). In addition, CSX Transportation Company, the
Kansas City Southern Railway, the Soo Line Railroad, and the Union
Pacific Railroad expressed support for AAR's petition. BNSF and NS
also stated that the June 30 voluntary compliance date did not allow
sufficient time to make changes to their computer programming
systems.
In a June 18, 1996 letter, the Railway Association of Canada
(RAC) asked RSPA to postpone the elimination of the ``RESIDUE''
placard ``until a harmonization of all train marshaling rules in
both the United States and Canada can be achieved'' or, in the
alternative, until September 1, 1996, as requested by AAR. RAC
stated that the June 30 voluntary compliance date did not allow
sufficient time for training personnel and modifying computer
systems. RAC expressed concern that there would be ``delays to
hazardous materials traffic due to confusion by the train crews.''
Requests similar to that of RAC were submitted by the Canadian
National Railroad and the Canadian Fertilizer Institute. The
Canadian Chemical Producers'' Association (CCPA) wrote in support of
RAC's request.
In a June 24, 1996 letter, the Chemical Manufacturers
Association (CMA) expressed ``qualified support for the recent
petitions for reconsideration submitted by'' AAR and CCPA, but
suggested that RSPA not allow shippers to discontinue use of the
``RESIDUE'' placard before October 1, 1996. CMA stated that its
concerns about insufficient time for training rail carrier personnel
and ``confusion and safety concerns among the emergency response
community'' would also exist during a September 1-October 1
``voluntary compliance window.'' CMA also stated its assumption that
RSPA would ``address enforcement-related issues for empty tank cars
placarded as a residue which are in-transit at the time of the
effective date of the rule.''
RSPA does not believe the concerns expressed by these parties
justify postponement of the June 30, 1996 voluntary compliance date.
Between June 30 and October 1, 1996, a tank car containing the
residue of a hazardous material may bear ``RESIDUE'' placards or the
placards that were required to be affixed to the tank car when it
was full. On and after October 1, 1996, the ``RESIDUE'' placard may
no longer be used, and the ``loaded'' car placard is required for a
tank car containing a residue.
From the standpoint of rail operations, train placement of the
car is the only difference between treatment of a tank car fully
loaded with a hazardous material and one containing a residue. 49
C.F.R. Sec. 174.85. The discontinuance of the ``RESIDUE'' placard
simply means that train placement must be done based on the shipping
paper (or electronic data interchange, as discussed in comments
submitted in HM-216, see 61 FR at 28669). RSPA understands that this
is generally the present means of car placement (rather than relying
on the placard). Therefore, the major ``training'' needed is to
inform rail carrier employees that an apparently misplaced tank car
may in fact be properly placed and that the shipping papers will
resolve that fact. Because the HMR's underlying rules on train
placement have not changed, there is no reason to postpone
discontinuance of the ``RESIDUE'' placard until a later proceeding
to consider harmonization of the HMR with Canadian regulations in
this respect.
A fundamental reason for allowing voluntary compliance before
the effective date is to provide time for carriers to train their
employees about this change, during the three-month voluntary
compliance period, rather than requiring adherence to the ``old''
rules until the eve of the effective date. Allowing voluntary
compliance here is consistent with RSPA's past practice in amending
the HMR, including the extensive changes in packaging authorizations
and hazard communications made in Docket No. HM-181. See 55 FR 52402
(Dec. 21, 1990) (voluntary compliance allowed beginning January 1,
1991, eleven days after publication of the final rule).
Both RSPA and the Federal Railroad Administration (FRA) envision
the three-month voluntary compliance period as allowing rail
carriers to ``debug'' their systems, both with respect to operating
personnel and computer programs. Accordingly, FRA has developed a
policy that will consider this as a ``learning'' period. A copy is
attached. This policy should allow rail carriers to modify their
computer programming systems during the three-month transition
period.
For the above reasons, RSPA is denying these petitions for
reconsideration.
[[Page 38644]]
Sincerely,
[signed]
Kelley S. Coyner,
Deputy Administrator.
Attachment
cc: Mr. David E. Edington, Manager, Hazardous Materials, Burlington
Northern Santa Fe Railroad
Mr. J.R. McNally, General Manager, Hazardous Materials Systems,
Consolidated Rail Corporation
Mr. Steve H. Huff, Director Operating Practices, Hazardous
Materials/Special Services, CSX Transportation
Mr. Michael A. De Smedt, Manager Hazardous Materials Transportation,
Illinois Central Railroad
Mr. J.W. Talley, Superintendent of Hazardous Materials Control, The
Kansas City Southern Railway Company
Mr. D.L. Schoendorfer, Manager Hazardous Materials, Norfolk Southern
Corporation, Environmental Protection
Mr. Phillip Marbut, Field Manager Hazardous Materials & Emergency
Response, Soo Line Railroad Company
Pat Student, Manager, Technical Research, Chemical Transportation
Safety, Union Pacific Railroad Company
Mr. Achille P. Ferrusi, Assistant Vice President, Safety &
Regulatory Affairs, Canadian National
Mr. David M. Finlayson, Canadian Chemical Producers' Association
Mr. Jim Farrell, Manager, Technical Affairs, Canadian Fertilizer
Institute
Mr. Frank J. Principi, Associate Director, Distribution Safety &
Economic Programs, Chemical Manufacturers Association.
Explanation of FRA Enforcement Policy
Elimination of the ``Residue'' Placard, Placard Notation, and
Placard Endorsement
On June 5, 1996, the Research and Special Programs
Administration (RSPA) published a final rule in docket HM-216 (61 FR
28665). The final rule amended the Hazardous Materials Regulations
(HMR) to incorporate a number of changes based on petitions from the
railroad and shipping industries and on RSPA's own initiative. In
order to facilitate an early transition form the pre-HM-216
regulations to the new standards, FRA is making this statement of
enforcement policy with respect to the elimination of the placard
notation, endorsement, and RESIDUE placard. This policy statement
does not alter or add to the final rule, but offers guidance to
railroads and shippers concerning the voluntary compliance period.
First, FRA will continue to expect accurate shipping
descriptions during and after the transition period.
Second, FRA will continue to expect that the placard on a rail
shipment of a hazardous material will accurately reflect the class
of the commodity in the car and, if the identification numbers
appear on the placard, that they will be accurate.
Third, FRA will expect shippers to offer tank cars consistently
placarded, for example, if a RESIDUE placard is displayed at one
location, the other three locations will also display RESIDUE
placards.
Fourth, FRA will expect shippers to discontinue use of the
RESIDUE placard after September 30, 1996, although cars offered
before that date may continue their transportation cycle back to the
loading point with RESIDUE placards.
Fifth, FRA expects railroads and shippers to train their
employees about the new requirements to ensure an orderly transition
before October 1, 1996. FRA believes that this phase-in period will
help railroads and shippers ``de-bug'' automated systems such as
electronic data interchange programs before the mandatory deadline.
FRA is aware that some entities are concerned that, during the
voluntary compliance period, a shipping document may carry the
RESIDUE placard notation (e.g., Placarded: Flammable--RESIDUE) while
the car displays the traditional ``loaded'' placard. As noted above,
if the shipping description is accurate and the placards are for the
correct class (and carry the correct UN/NA number as appropriate),
FRA will take no exception. Further, the final rule in this docket
eliminates the requirement for the placard endorsement and notation,
but does not prohibit their use. Shippers and carriers may continue
to use this information, and to display it on shipping and movement
documents, as they wish.
FRA and RSPA are aware of the problems created when regulatory
changes require many companies in different industries to change
their procedures and processes. We intend to be flexible in
achieving full compliance and we urge the shipping and transporting
companies involved to work with each other towards the enhancements
in Docket HM-216. For example, shipping and transportation companies
may mutually agree on a date prior to October 1, 1996 by which they
will implement the changes recently published.
During the transition period for implementing requirements based
on the UN Recommendations (Docket HM-181), RSPA adopted regulations
in Sec. 171.14 (popularly called ``mix & match''), that recognized
the impossibility of bringing everything into phase at one instant.
FRA will enforce the rules promulgated in Docket HM-216 in the same
spirit.
For further information contact James H. Rader (Telephone 202-
366-0510), Hazardous Materials Division; Thomas A. Phemister
(Telephone 202-366-0635), Trial Attorney, Office of Chief Counsel,
FRA, Washington D.C. 20590-0001.
Office of Safety Assurance and Compliance
June 27, 1996
Issued in Washington, DC, on July 18, 1996, under authority
delegated in 49 CFR part 1.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-18822 Filed 7-24-96; 8:45 am]
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