December 23, 2005

Office of Hazardous Materials Standards
Pipeline and Hazardous Materials Safety Administration
Attention: PHH -1
US Department of Transportation
400 7th St. SW
Washington, DC 20590-0001

Appeal of HM-240 Final Rule (Docket No. PHMSA – 2005-22208)

The Dangerous Goods Advisory Council (DGAC) appeals HM-240 Final Rule in accordance with 49 CFR Part 106.

INTRODUCTION
DGAC is a non-profit educational organization that promotes hazmat transportation safety by providing classroom training, seminars and conferences, and participation in domestic and international regulatory activities in its promotion of not only safe, but also efficient transportation of hazardous materials/dangerous goods in commerce.

STATEMENTS OF CONCERN ON THE FINAL RULE
While noting that the stated purpose of the changes adopted in the final rule (70FR73156) is for “…consistency with the Hazardous Materials Safety and Security Act of 2005,” DGAC regrets that PHMSA did not follow its normal practice of first proposing the regulatory changes stemming from the law in a notice of proposed rulemaking so that PHMSA could take into account practical affects of proposed changes following consideration of comments.

DGAC appeals the final rule because it substantially amends the definition of a “hazmat employer” by removing the word “its” from the present definition of hazmat employer in 49CFR171.8. This change is substantive and controversial and does not qualify for adoption under a [direct] final rule in accordance with 49CFR106.40. Failure to limit the responsibilities of an employer to “its” employees implies the assumption of responsibilities beyond imagination, and implies direct supervision of one hazmat employer over functions performed by other hazmat employers. For example, if a shipper contracts with a carrier to transport hazardous materials, is the shipper the employer of the carrier’s hazmat employees?; Is a vessel operator responsible for the specific functions conducted by the employees of a stevedoring company?; Is a person who purchases cylinders from a manufacturer the employer of the manufacturer and its employees? Common sense dictates that the answer to each of these questions is no.

While we are not certain of the fact, we believe that the Congressional intent in adding the word “uses” [to Section 5102(4)] was to ensure the training of contract employees. If this was the case, the change was unnecessary. Under the existing regulations, a contractor, as the employer of a contract hazmat employee, falls within the current definition a “hazmat employer” and is obligated to provide the required training. Even in the case of sole proprietorships consisting of one individual, that individual is self employed and is both an employee and an employer. When that individual performs a hazmat employee task under contract, he is both a hazmat employee and a hazmat employer subject to the obligation to train.

The final rule is unclear about the continued suitability of “DOT-E” markings beyond October 1, 2007, and creates the potential for substantial additional costs to industry. While DGAC supports the change in name from “exemption” to “special permit”, this nomenclature change has no impact upon the safe transportation of hazardous materials. Therefore, DGAC believes that industry should be afforded ample opportunity for transition to the new term so that industry’s actual costs of transition do not exceed those estimated in the final rule. While DGAC appreciates the accommodation provided for “DOT-E” markings on packagings and shipping papers in §173.23(h), and notes that PHMSA intends to address the continued use of “DOT-E” on a case-by-case basis during the renewal of each special permit, this ad hoc approach creates uncertainty with respect to the continued acceptance of markings permanently affixed or stenciled to reusable packagings. The added costs of remarking could be significant. DGAC believes that this issue should be addressed in the regulation. DGAC recommends that permanent “DOT-E” markings such as stamp markings be authorized for use indefinitely and that a period of 5 years be provided for the transition from stenciled “DOT-E” marks so that re-stenciling with the “DOT-SP” mark can be implemented through normal maintenance schedules for bulk packagings. In addition to providing certainty to the affected industry, it will also provide a clear basis for demonstrating the continued validity of a “DOT-E” marking should the question arise in the course of enforcement activities.

DGAC also takes the opportunity of this appeal to note the following:

1. In Section 171.2(h)(2), “SP” should be displayed after “M”.
2. DGAC believes that the intention of revised §172.203(a) was to allow either the “DOT-E” or “DOT-SP” notation on shipping papers until October 1, 2007 to afford industry the opportunity to adjust electronic systems for preparing shipping papers. The actual text does not accomplish this. The first sentence mandates the DOT-SP notation and, since there is no indication that it is an alternative, the second sentence reads as a new requirement.
3. In §173.22a(c) the word “tendered” is used. The word “tender” is not used in the Hazardous Materials Regulations. In this regard DGAC notes that there is an open appeal to HM-223A filed on August 26, 2005 concerning the use of the word “tenders”. DGAC urges PHMSA to replace the word “tendered” with the word “offered”.

DGAC fails to understand the urgency for issuing HM-240 as a final rule, and regrets that the 30 day period for appealing the final rule extends over the holiday period, making collection and coordination of comments particularly difficult. DGAC also regrets the short period between publication and the effective date of the rule when §106.40 indicates that the effective date of direct final rules will generally be 60 days after the publication of the final rule. Given that there was no opportunity to provide comment on a notice, and the short time available for assembling this appeal to the final rule, DGAC anticipates that there may be other as yet unidentified concerns with the final rule text. To provide industry an appropriate amount of time to fully review and determine the implications of the rule, and for PHMSA to respond to the issues already identified above, DGAC recommends that PHMSA withdraw the final rule and reissue it as a notice of proposed rulemaking.

Sincerely,

Michael Morrissette
President