[Federal Register Volume 66, Number 177 (Wednesday, September 12, 2001)]
[Proposed Rules]
[Pages 47443-47446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-22851]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172, 174, 175, 176, and 177

[Docket No. RSPA-01-10568 (HM-207B)]
RIN 2137-AC64


Hazardous Materials: Retention of Shipping Papers

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: RSPA is proposing to amend the Hazardous Materials Regulations 
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.

DATES: Comments must be received by November 13, 2001.

ADDRESSES: You must address comments to the Dockets Management System, 
U.S. Department of Transportation, Room PL 401, 400 Seventh Street SW., 
Washington, DC 20590-0001. You should identify the docket number (RSPA-
01-10568 (HM-207B)) and submit your comments in two copies. If you want 
to confirm that we received your comments, you should include a self-
addressed, stamped postcard. You may submit comments by e-mail by 
accessing the Dockets Management System website at: http://dms.dot.gov. 
Click on ``Electronic Submission'' to obtain instructions for filing a 
document electronically. The Dockets Management System is located on 
the Plaza Level of the Department of Transportation headquarters 
building (Nassif building) at the above address. You may review public 
dockets there between the hours of 9:00 a.m. and 5:00 p.m., Monday 
through Friday, except federal holidays. You may also review comments 
on-line at the DOT Dockets Management System web site at:
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Deborah Boothe of the Office of 
Hazardous Materials Standards, (202) 366-8553, Research and Special 
Programs Administration, U.S. Department of Transportation.

SUPPLEMENTARY INFORMATION:

I. Background

    Any person who offers a hazardous material for transportation in 
commerce must describe the hazardous material on a shipping paper in 
the manner required in 49 CFR part 172, subpart C. A shipping paper 
includes ``a shipping order, bill of lading, manifest or other shipping 
document serving a similar purpose and containing the information 
required by Secs. 172.202, 172.203 and 172.204.'' 49 CFR 171.8 
(definition of ``shipping paper''). A hazardous waste manifest ``may be 
used as the shipping paper'' if it contains all the information 
required by 49 CFR part 172, subpart C. 49 CFR 172.205(h).
    Since 1980, generators and transporters of hazardous waste have 
been required to retain a copy of the hazardous waste manifest ``for 
three years from the date the waste was accepted by the initial 
carrier.'' 49 CFR 172.205(e)(5), adopted in RSPA's May 22, 1980 final 
rule, 45 FR 34560, 34698. See also regulations of the U.S. 
Environmental Protection Agency at 40 CFR 262.40(a), 263.22(a). In 
1994, Congress amended Federal hazardous material transportation 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 Pub. L. 103-311, Title I, 
Sec. 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.''
    RSPA proposes to amend the HMR to conform with Sec. 5110(e). A 
paper copy of the shipping paper must accompany a hazardous material 
during transportation. We propose to add a new Sec. 172.201(e) and 
amend Secs. 174.24, 175.30, 176.24, and 177.817 to require each shipper 
and carrier to retain a copy of the shipping paper, or an electronic 
image thereof, for a period of 375 days after the date a hazardous 
material is offered for transportation by the shipper and accepted by 
the carrier. For purposes of the 375-day retention requirement, an 
electronic image includes an image transmitted by a facsimile (FAX) 
machine, an image on the screen of a computer, or an image generated by 
an optical imaging machine.
    The statute requires that each shipper and carrier of a hazardous 
material retain the shipping paper or electronic image thereof for a 
period of one year after the hazardous material is no longer in 
transportation. However, the shipper may not know the exact date when 
transportation ends, nor will an originating or intermediate carrier 
know when transportation ends if it does not deliver the hazardous 
material to the consignee. Therefore, we are proposing that the 375-day 
retention period begin from the date the shipment is offered and 
accepted by the initial carrier for transportation. This is the same 
date that the three-year retention period for hazardous waste manifests 
starts. (49 CFR 172.205(e)(5)). Well over 95 percent of hazardous 
materials shipments are delivered within 10 days after they are offered 
to a carrier. Thus, for these shipments, our proposal to begin the 375-
day retention period on the date a shipment is offered and accepted by 
the initial carrier is consistent with the statutory requirement for 
retention of shipping documents for one year after transportation ends. 
For the small percentage of shipments that take longer than 10 days to 
deliver, especially those shipments involving interlining and 
international transportation, the shipper and initial and intermediate 
carriers will likely not know the delivery date for the shipment and 
will therefore be uncertain about the retention period if the retention 
period begins with the delivery date. To require shippers and carriers 
to determine an exact delivery

[[Page 47444]]

date would impose an unreasonable recordkeeping and reporting burden 
that was not intended by the statute.
    In order to facilitate compliance with and enforcement of the 
requirement, we propose that the copy be dated. For shippers, the 
shipping paper copy must include the date that the shipment is accepted 
for transportation by the initial carrier. For carriers, the shipping 
paper copy must include the date that the carrier accepts the shipment 
for transportation. The shipping paper may be electronically filed; 
however, it must be made available on paper if requested by an 
authorized federal, state, or local government official.
    The shipping paper copy or its electronic image must be accessible 
at or through the principal place of business of each person required 
to prepare or maintain it during transportation. (For a motor carrier, 
``principal place of business'' has the same meaning as in Sec. 390.5 
of the Federal Motor Carrier Safety Regulations.) In this context, 
``accessible'' means readily and easily obtained, i.e., with the same 
speed of availability as that required to retrieve a paper record from 
a filing cabinet holding records of the business.
    Except for hazardous waste manifests, see 49 CFR 172.205(a), the 
HMR do not require a shipping paper to be in any specific form or 
format. We understand that different types of documents are used by 
offerors of hazardous material to meet the requirement to describe the 
hazardous material on a ``shipping paper.'' Some private motor carriers 
use the same shipping paper for multiple shipments of a hazardous 
material. Typically, these permanent shipping papers are used by 
private motor carriers who transport a single hazardous material on a 
regular basis over an extended period, such as one cargo tank of 
gasoline. We are proposing to permit operators to retain a single copy 
of such permanent shipping papers for the period in which the shipping 
paper is used and 375 days thereafter to meet the shipping paper 
retention requirements in this NPRM provided that the operator also 
retains a record of each shipment made under the shipping paper. The 
record must include shipping name, identification number, quantity 
transported, and date of shipment.

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under Executive Order 12866 and, therefore, was not reviewed by 
the Office of Management and Budget. This proposed rule is not 
considered significant under the regulatory policies and procedures of 
the Department of Transportation (44 FR 11034).
    This proposed 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, and, therefore, 
preparation of a regulatory evaluation is not warranted. This 
determination may be revised based on comments received.

B. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). Federal hazardous material transportation law would 
preempt 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 proposed 
rule, 49 U.S.C. 5125(b)(1)(B), but this proposed rule would 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. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    Federal hazardous materials transportation law provides that, if 
DOT issues a regulation on the preparation, execution, and use of 
shipping documents related to hazardous material, DOT must determine 
and publish in the Federal Register the effective date of federal 
preemption. 49 U.S.C. 5125(b)(2). 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. We propose that 
the effective date of federal preemption be 90 days from publication of 
a final rule in the Federal Register.

C. Executive Order 13175

    This proposed 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 proposed 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 proposed rule 
implements a statutory requirement that has been in effect since 1994. 
Therefore, this proposed rule will not impose additional costs on 
offerors and carriers of hazardous material. I hereby certify that, 
while the proposed rule would apply to a substantial number of small 
entities, there would not be a significant economic impact on those 
small businesses.

E. Unfunded Mandates Reform Act of 1995

    This NPRM 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 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 proposed 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 proposed rule.

List of Subjects

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Markings, Packaging and containers, Reporting and recordkeeping 
requirements.

[[Page 47445]]

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 propose to amend 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 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    2. In Sec. 172.201, the section heading would be revised and a new 
paragraph (e) would be added to read as follows:


Sec. 172.201  Preparation and retention of shipping papers.

* * * * *
    (e) Each person required to describe a hazardous material on a 
shipping paper must retain a copy of the shipping paper, or an 
electronic image thereof, that is accessible at or through its 
principal place of business and must make the shipping paper 
immediately 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. A private motor carrier (as defined 
in Sec. 390.5 of subchapter B of this title) 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 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    4. Section 174.24 would be revised to read as follows:


Sec. 174.24  Shipping papers.

    (a) A person may not accept a hazardous material for transportation 
or transport a hazardous material by rail unless that person receives a 
shipping paper prepared in accordance with part 172 of this subchapter, 
unless the material is excepted from shipping paper requirements as 
provided in Sec. 172.200(b) of this subchapter. Only an initial carrier 
within the United States must receive and retain a copy of the 
shipper's certification as required by Sec. 172.204 of this subchapter.
    (b) Each person receiving a shipping paper required by this section 
must retain a copy of the shipping paper, or an electronic image 
thereof, that is accessible at or through its principal place of 
business and must make the shipping paper immediately 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.

PART 175--CARRIAGE BY AIRCRAFT

    5. The authority citation for part 175 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    6. In Sec. 175.30, paragraph (a)(2) would be revised to read as 
follows:


Sec. 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 Sec. 171.11 of this subchapter. Each person receiving a 
shipping paper required by this section must retain a copy of the 
shipping paper, or an electronic image thereof, that is accessible at 
or through its principal place of business and must make the shipping 
paper immediately 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.

PART 176--CARRIAGE BY VESSEL

    7. The authority citation for part 176 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    8. Section 176.24 would be revised to read as follows:


Sec. 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, unless the material is excepted from shipping paper 
requirements as provided in Sec. 172.200(b) of this subchapter.
    (b) Each person receiving a shipping paper required by this section 
must retain a copy of the shipping paper, or an electronic image 
thereof, that is accessible at or through its principal place of 
business and must make the shipping paper immediately 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.

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    9. The authority citation for part 177 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

[[Page 47446]]

    10. In Sec. 177.817, paragraph (a) would be revised and new 
paragraph (f) would be added, to read as follows:


Sec. 177.817  Shipping papers.

    (a) General requirements. A person may not accept a hazardous 
material for transportation or transport a hazardous material by 
highway unless that person has received a shipping paper prepared in 
accordance with part 172 of this subchapter, unless the material is 
excepted from shipping paper requirements as provided in 
Sec. 172.200(b) of this subchapter.
* * * * *
    (f) Retention of shipping papers. Each person receiving a shipping 
paper required by this section must retain a copy of the shipping 
paper, or an electronic image thereof, that is accessible at or through 
its principal place of business and must make the shipping paper 
immediately 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 private motor carrier (as defined in Sec. 390.5 of 
subchapter B of this title) 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 September 6, 2001, under authority 
delegated in 49 CFR part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 01-22851 Filed 9-11-01; 8:45 am]
BILLING CODE 4910-60-P