[Federal Register Volume 61, Number 191 (Tuesday, October 1, 1996)]
[Rules and Regulations]
[Pages 51241-51242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24712]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 173
[Docket HM-207C, Amdt. No. 173-249]
RIN 2137-AC63
Exemption, Approval, Registration and Reporting Procedures;
Miscellaneous Provisions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; Revision made in response to petition for
reconsideration.
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SUMMARY: In response to a petition for reconsideration, this final rule
deletes a requirement that, when the provisions of an exemption require
that a copy be in a carrier's possession during transportation, the
carrier must maintain a copy of the exemption in the same manner as
required for shipping papers. This amendment will allow the carrier to
use any appropriate method for making the exemption available, unless
otherwise specified by the provisions of the exemption.
EFFECTIVE DATE: The effective date of this final rule and the final
rule published under Docket HM-207C on May 9, 1996 (61 FR 21084) is
October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Kathleen Stokes Molinar, Office of the
Chief Counsel, (202) 366-4400, or Diane LaValle, Office of Hazardous
Materials Standards, (202) 366-8553, RSPA, U.S. Department of
Transportation, 400 7th Street, S.W., Washington, D.C. 20590-0001.
SUPPLEMENTARY INFORMATION: On May 9, 1996, RSPA published a final rule
under docket HM-207C (61 FR 21084) that revised and clarified RSPA's
procedures and requirements for its exemption, approvals, registration,
reporting, preemption, and enforcement procedures and programs. These
revisions and clarifications included addition of a new paragraph (c)
to 49 CFR 173.22a. The last sentence of this paragraph states: ``When
the provisions of the exemption require it to be in the possession of a
carrier during transportation in commerce, the carrier shall maintain
the copy of the exemption in the same manner as required for a shipping
paper.''
On June 3, 1996, United Parcel Service (UPS) filed a petition for
reconsideration, requesting that RSPA delete the last sentence of
paragraph (c) to 49 CFR 173.22a. UPS claimed that the new requirement
is not practicable, is both unreasonable and unnecessary, and was
issued without notice and opportunity for comment.
UPS contended that the requirement would cause major operational
difficulties within its system, especially in ensuring that a copy of
the exemption when detached from the package ``tracks'' with the
package. UPS stated that its daily business operations include
transporting thousands of DOT exemption packages. Typically, UPS
stated, an exemption package may be transported aboard up to five UPS
vehicles, and subjected to as many sorting and transferral operations.
UPS stated that, prior to the publication of HM-207C, when an exemption
contained language mandating that the exemption must be carried by the
carrier, UPS physically attached a copy of the exemption to each
exemption package, thus facilitating the transportation of the
exemption with the package through the myriad of sorting, transfer, and
transportation operations necessary to deliver the package to its
destination. UPS stated that requiring a driver to detach the exemption
from the package, place it with the shipping papers, and transfer it
each time the package was rerouted would render it extremely difficult
to ensure that each exemption document was able to ``track'' its
attendant package to the package's final destination.
UPS further stated that this new requirement would achieve little,
if anything, in terms of improved safety and cannot be justified in
light of the increased administrative and paperwork burdens associated
with the new requirement. Further, UPS claimed that the new requirement
was adopted without proper notice and without affording the public an
opportunity for comment.
RSPA adopted the new requirement in the May 9, 1996 final rule as a
clarification, with the understanding that the provision would impose
no additional costs and that the vast majority of carriers already
conform to the new requirement, as the most practicable way to ensure
that the exemption is available during transportation. RSPA did not
consider that some companies, such as UPS, may use other methods of
ensuring that an exemption is on the transport vehicle and that costs
would be incurred by them in conforming to the new requirement. Based
on the comments presented by UPS, RSPA agrees that there may be
operational burdens imposed on UPS and others which were not considered
in the May 9, 1996 final rule and that the requirement may entail costs
which would exceed its benefits. RSPA notes that if there is a need to
ensure that an exemption is immediately accessible during
transportation, such as where an exemption contains information related
to the safe handling of a shipment, RSPA can specify the manner of
maintaining the exemption in specific provisions in the exemption.
Based on the foregoing, RSPA is deleting the requirement as
requested by UPS. Because this revision is within the scope of the
rulemaking under docket HM-207C, lessens the requirements placed upon a
carrier in the May 9, 1996 final rule, imposes no new regulatory burden
on any person, and does not adversely impact emergency response,
additional public notice and comment are unnecessary. Because the
requirement was to go into effect on October 1, 1996, and to ensure
publication of this amendment in the 1996 Code of Federal Regulations,
there is ``good cause,'' under the Administrative Procedure Act, to
make the amendment effective on the same effective date as the May 9,
1996 final rule, i.e., October 1, 1996, without the usual 30-day delay
following publication.
Regulatory Analyses and Notices
A. 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 was not reviewed by the
Office of Management and Budget (OMB). The rule is not significant
according to the Regulatory Policies and Procedures of the Department
of Transportation (44 FR 11034).
This final rule will not result in any additional costs to persons
subject to the HMR. Therefore, preparation of a regulatory impact
analysis or regulatory evaluation is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous materials transportation law (49 U.S.C. 5101-5127)
contains an express preemption provision that preempts State, local,
and Indian tribe requirements on certain covered subjects. Covered
subjects are:
[[Page 51242]]
(i) the designation, description, and classification of hazardous
material;
(ii) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements respecting the
number, content, and placement of such documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(v) the design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
Title 49 U.S.C. 5125(b)(2) provides that DOT must determine and
publish in the Federal Register the effective date of Federal
preemption. That 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. The effective date of Federal
preemption for this final rule is January 1, 1997. Because RSPA lacks
discretion in this area, preparation of a Federalism assessment is not
warranted.
C. Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This final rule
merely deletes a requirement scheduled to go into effect on October 1,
1996, and it does not impose any new requirements. Thus, there are no
direct or indirect adverse economic impacts for small units of
government, businesses, or other organizations.
D. Paperwork Reduction Act
Information collection requirements applicable to exemptions are
unchanged by this final rule in substance and amount of burden from
those currently approved by the Office of Management and Budget (OMB)
under OMB control number 2137-0051. Under the Paperwork Reduction Act
of 1995, no person is required to respond to a requirement for
collection of information unless the requirement displays a valid OMB
control number.
E. Regulation Identification Number (RIN)
A regulation identification 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 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
1. The authority citation for Part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 173.22a [Amended]
2. In Sec. 173.22a, paragraph (c), as added at 61 FR 21102
effective October 1, 1996, is amended by removing the last sentence.
Issued in Washington, D.C., on September 20, 1996, under
authority delegated in 49 CFR Part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-24712 Filed 9-30-96; 8:45 am]
BILLING CODE 4910-60-P