[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regulations that are outdated or in need of reform.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]
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