[Federal Register Volume 71, Number 152 (Tuesday, August 8, 2006)]
[Rules and Regulations]
[Pages 44929-44931]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12804]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 171

[Docket No. PHMSA-2005-22208 (HM-240)]
RIN 2137-AE12


Hazardous Materials: Incorporation of Statutorily Mandated 
Revisions to the Hazardous Materials Regulations; Correction

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule; correction.

-----------------------------------------------------------------------

SUMMARY: On December 9, 2005, PHMSA published a final rule to revise 
terminology, definitions, and requirements for consistency with the 
Hazardous Materials Safety and Security Reauthorization Act of 2005. 
These amendments included revising the definitions of ``hazmat 
employee'' and ``hazmat employer''; modifying shipping paper retention 
requirements; providing a security plan exception for farmers; and 
replacing the term ``Exemption'' with ``Special permit.'' This final 
rule corrects an error in the final rule. In addition, we are 
clarifying the amendments applicable to shipping paper retention 
requirements, the definition of ``hazmat employer,'' and the transition 
from ``Exemption'' to ``Special permit.''

DATE: Effective date: August 8, 2006.

FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or Kurt 
Eichenlaub, Office of Hazardous Materials Standards, (202) 366-8553, 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 9, 2005, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA, we) published a final rule under Docket No. 
PHMSA-2005-22208 (HM-240) revising the Hazardous Materials Regulations 
(HMR; 49 CFR parts 171-180) to reflect amendments made to the Federal 
hazardous materials law (Federal hazmat law; 49 U.S.C. 5101 et seq.) by 
the Hazardous Materials Safety and Security Reauthorization Act of 2005 
(the Act; Title VII of Pub. L. 109-59, 119 Stat. 1144 (August 10, 
2005)).
    The December 9, 2005 final rule made the following amendments to 
the HMR:
     Revised the definitions of ``hazmat employee'' and 
``hazmat employer'';
     Revised shipping paper retention requirements;
     Added a security plan exception for farmers;
     Revised applicability of the HMR to matter subject to 
postal laws and regulations; and
     Replaced ``Exemption'' with ``Special permit.''
    We received a number of questions from the regulated community 
concerning the amendments in the final rule applicable to the revised 
definition of ``hazmat employer'', new shipping paper retention 
requirements, and the transition from ``Exemption'' to ``Special 
permit.'' To ensure our responses to these questions reach a broad 
audience, we are addressing them in this final rule.

II. Clarifications

A. Definition of ``Hazmat Employer''

    We revised the definition of ``hazmat employer'' in Sec.  171.8 for 
consistency with editorial revisions adopted under the Act. The revised 
definition is not intended to apply more broadly than the previous 
definition. The amendment does not expand the scope of the definition 
or revise the training requirements applicable to hazmat employers in 
subpart H of part 172 or the operational requirements applicable to 
training in parts 173-180 of the HMR.

B. Revision of Shipping Paper Retention Requirements

    In accordance with the Act, we revised the HMR to require shippers 
to retain a copy of a shipping paper for a period of two years after 
the shipping paper is provided to a carrier and to require carriers to 
retain a copy of a shipping paper for a period of one year after the 
date the shipping paper is received from the shipper. We also specified 
that shippers and carriers of a hazardous waste must continue to retain 
a shipping paper for 3 years after the material is accepted by the 
initial carrier. PHMSA is aware of confusion in the regulated community 
regarding the implementation of these provisions. The provisions for 
shipping paper retention in this rulemaking became effective on January 
9, 2006 (the effective date of the final rule). It was not our 
intention to apply the revised shipping paper retention requirements 
retroactively to documents retained for shipments made prior to the 
effective date of the final rule. Shipments offered or accepted for 
transportation prior to January 9, 2006 are not subject to the new 
shipping paper retention provisions. For shipments offered or accepted 
for transportation prior to January 9, 2006, each person who provides a 
shipping paper and each person who receives a shipping paper must 
retain a copy of the shipping paper or an electronic image thereof for 
375 days after the shipment is accepted by the initial carrier. For 
shipments offered or accepted for transportation on or after January 9, 
2006, each person who provides a shipping paper must retain a copy of 
the shipping paper or an electronic image thereof for two years after 
the shipment is accepted by the initial carrier; each person who 
receives a shipping paper must retain a copy of the shipping paper or 
an electronic image thereof for one year after the shipment is accepted 
by the initial carrier.

[[Page 44930]]

C. Conversion of Exemptions to Special Permits

    The final rule adopted amendments to replace most of the references 
in the HMR to the term ``exemption'' with ``special permit.'' See 
Sec. Sec.  171.1, 171.2, 171.6, 171.8, 172.102, 172.203, 172.301, 
172.302, 173.22, 173.22a, 173.124, 173.301, 173.403, 175.33, 176.31, 
178.3, 179.3, 179.4, 180.3, 180.201, 180.205, 180.209, 180.213, and 
180.215. In addition, we adopted the following revisions to the HMR to 
address the transition to special permits:

--Current exemptions will be effective until they expire, are 
terminated, or become due for renewal. Current exemptions will be 
replaced by special permits at the time when a renewal application is 
approved by the Associate Administrator. See definition of ``Special 
permit'' in Sec.  171.8.
--Packagings and shipping papers prepared in accordance with a new 
special permit issued on or after October 1, 2005 must be marked with 
``DOT-SP'' and the appropriate special permit number, unless otherwise 
specified by the special permit. However, packagings and shipping 
papers previously marked ``DOT-E'' in accordance with a current 
exemption generally may continue in use so long as the provisions in 
the exemption remain valid. See Sec. Sec.  172.203, 172.302, and 
173.23.
--An initial special permit will be valid for up to two years before it 
expires or becomes due for renewal. A separate person wishing to 
transport in the same manner as the applicant for a special permit may 
apply for ``party status'' to the special permit. In this situation, 
the party applying for party status will be considered a ``new'' 
special permit holder and will be issued a special permit authorization 
letter, authorizing the party to operate as a grantee to the special 
permit with an expiration date (up to two years) based on the date of 
its application. If renewed, a special permit may be issued an 
expiration date of up to four years from the date of issuance. See 
Sec. Sec.  107.107, and 107.113.
--The Office of Hazardous Materials Exemptions and Approvals (OHMEA) is 
renamed the Office of Hazardous Materials Special Permits and Approvals 
(OHMSPA).
--The e-mail address for OHMSPA is revised from [email protected] 
to [email protected]. See Sec. Sec.  107.105, 107.107, and 
107.109.

    The provisions of the final rule applicable to the change from 
``Exemptions'' to ``Special permits'' have caused some confusion among 
current exemption holders concerning the continued use of the ``DOT-E'' 
exemption marking on packages and shipping papers. The final rule 
allows for packagings authorized by an exemption issued prior to 
October 1, 2007, to be plainly and durably marked ``DOT-E'' in lieu of 
``DOT-SP'' (see Sec.  172.301(c)). This does not mean that all ``DOT-
E'' exemption markings must be changed to ``DOT-SP'' after October 1, 
2007. As provided in Sec.  173.23(h), an exemption packaging that is 
permanently marked ``DOT-E'' prior to October 1, 2007, may continue in 
use with the ``DOT-E'' marking for the life of that exemption 
packaging, so long as the terms of the exemption or special permit 
remain valid.
    As provided in Sec.  172.203(a), a shipping paper for a shipment 
made under a special permit must include the notation ``DOT-SP'' 
followed by the special permit number assigned. As an alternative, 
shipping papers for shipments made under an exemption or special permit 
issued prior to October 1, 2007, may include the notation ``DOT-E'' 
instead of ``DOT-SP'' followed by the number assigned. Thus, a shipper 
may use either notation for shipments made under an exemption or 
special permit issued prior to October 1, 2007.

III. Correction

    This final rule corrects an error in the December 9, 2005 final 
rule. The final rule revised Sec.  171.1(d)(7) to read: ``Any matter 
subject to the postal laws and regulations of the United States, except 
in the case of an imminent hazard.'' This final rule is removing that 
language from Sec.  171.1(d)(7) and restoring the language previously 
in effect. In correcting this error, we confirm that the HMR do not 
apply to any matter subject to the postal laws and regulations of the 
United States and that the scope of the HMR has not changed.

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of Federal Hazardous 
Materials Transportation Law (Federal Hazmat Law; 49 U.S.C. 5101 et 
seq.). Section 5103(b) of Federal Hazmat Law authorizes the Secretary 
of Transportation to prescribe regulations for the safe transportation, 
including security, of hazardous materials in intrastate, interstate, 
and foreign commerce. The amendments in this final rule are being 
adopted for consistency with the Hazardous Materials Safety and 
Security Reauthorization Act of 2005.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This rule is not 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). There are no cost impacts 
associated with this final rule.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria in Executive Order 13132 (``Federalism''). This final rule 
does not adopt any regulation that: (1) Has 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; (2) imposes substantial direct compliance 
costs on State and local governments; or (3) preempts state law. 
Therefore, preparation of a federalism assessment is not warranted.

D. 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 on Indian tribal governments, and does not preempt 
tribal law, the funding and consultation requirements of Executive 
Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    I certify this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule corrects a 
previously issued final rule for consistency with the Hazardous 
Materials Safety and Security Reauthorization Act of 2005. There are no 
cost impacts associated with this rule.

F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $120.7 
million or

[[Page 44931]]

more to either State, local, or tribal governments, in the aggregate, 
or to the private sector, and is the least burdensome alternative that 
achieves the objective of the rule.

G. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

H. Environmental Impact Analysis

    There are no environmental impacts associated with this final rule.

I. 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.

List of Subjects in 49 CFR Part 171

    Applicability, Hazardous materials transportation, Reporting and 
recordkeeping requirements.

0
In consideration of the foregoing, amend 49 CFR Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45 and 1.53; 
Public Law 101-410 section 4 (28 U.S.C. 2461 note); Public Law 104-
134 section 31001.


0
2. In Sec.  171.1, revise paragraph (d)(7) to read as follows:


Sec.  171.1  Applicability of Hazardous Materials Regulations (HMR) to 
persons and functions.

* * * * *
    (d) * * *
    (7) Any matter subject to the postal laws and regulations of the 
United States.
* * * * *

    Issued in Washington, DC, on August 1, 2006, under authority 
delegated in 49 CFR part 1.
Thomas J. Barrett,
Administrator.
[FR Doc. E6-12804 Filed 8-7-06; 8:45 am]
BILLING CODE 4910-60-P