{"operation":"document","citation":"79 FR 46748","title":"Hazardous Materials: Reverse Logistics (RRR)","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"proposed","official":true,"published_on":"2014-08-11","effective_on":null,"summary":"PHMSA is proposing to revise the Hazardous Materials Regulations applicable to return shipments of certain hazardous materials by motor vehicle. PHMSA proposes a definition for \"reverse logistics\" for hazardous materials that are intended to be returned to or between a vendor, distributor, manufacturer, or other person for the purpose of returning for credit, recalling product, replacement, or similar reason (for instance, from a retail or wholesale outlet). PHSMA proposes to establish a new section in the regulations to provide an exception for materials that are transported in a manner that meets the definition of \"reverse logistics.\" In this exception, PHMSA proposes to clearly identify the hazardous materials authorized, packaging, hazard communication, and training requirements applicable to reverse logistics shipments. In addition to providing a new reverse logistics exception, this rulemaking also proposes to expand an existing exception for reverse logistics shipments of used automobile batteries that are being shipped from a retail facility to a recycling center.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2014-18741.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2014-18741.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2014-18741","source_url":"https://www.federalregister.gov/documents/2014/08/11/2014-18741/hazardous-materials-reverse-logistics-rrr","body":"Federal Register, Volume 79 Issue 154 (Monday, August 11, 2014) [Federal Register Volume 79, Number 154 (Monday, August 11, 2014)] [Proposed Rules] [Pages 46748-46758] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2014-18741] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171 and 173 [Docket No. PHMSA-2011-0143 (HM-253)] RIN 2137-AE81 Hazardous Materials: Reverse Logistics (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA is proposing to revise the Hazardous Materials Regulations applicable to return shipments of certain hazardous materials by motor vehicle. PHMSA proposes a definition for ``reverse logistics'' for hazardous materials that are intended to be returned to or between a vendor, distributor, manufacturer, or other person for the purpose of returning for credit, recalling product, replacement, or similar reason (for instance, from a retail or wholesale outlet). PHSMA proposes to establish a new section in the regulations to provide an exception for materials that are transported in a manner that meets the definition of ``reverse logistics.'' In this exception, PHMSA proposes to clearly identify the [[Page 46749]] hazardous materials authorized, packaging, hazard communication, and training requirements applicable to reverse logistics shipments. In addition to providing a new reverse logistics exception, this rulemaking also proposes to expand an existing exception for reverse logistics shipments of used automobile batteries that are being shipped from a retail facility to a recycling center. DATES: Comments must be received by October 10, 2014. To the extent possible, PHMSA will consider late-filed comments as a final rule is developed. ADDRESSES: You may submit comments by identification of the docket number (PHMSA-2011-0143 (HM-253)) by any of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590. Hand Delivery: To Docket Operations, Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this notice at the beginning of the comment. All comments received will be posted without change to the Federal Docket Management System (FDMS), including any personal information. Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see ADDRESSES). FOR FURTHER INFORMATION CONTACT: Steven Andrews, Standards and Rulemaking Division, Office Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, at (202) 366-8553. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. ANPRM IV. Review of Proposed Amendments V. Rulemaking Analyses and Notices A. Statutory/Legal Authority for this Rulemaking B. Executive Order 12866, 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis L. National Technology Transfer and Advancement Act VI. List of Subjects I. Executive Summary This notice of proposed rulemaking (NPRM) proposes to create a new section in the Hazardous Materials Regulations (HMR; 49 CFR Parts 171- 180) with provisions tailored to the unique characteristics of reverse logistics. By creating an exception from existing regulations for certain reverse logistics shipments, this NPRM offers opportunities for reduced compliance costs among hazmat shippers and carriers, without any decrease in safety. In addition, PHMSA is also handling a reverse logistics issue related to the transportation of used automobile batteries to recycling centers. This change to the HMR will reduce the burden on the regulated community when consolidating shipments of lead acid batteries for recycling. PHMSA published an ANPRM on July 5, 2012 (77 FR 39662), to request comments from the public on changes to the regulations that would simplify requirements and reduce the burden on retail outlets. In response to PHMSA efforts in the area of reverse logistics, petitions for rulemaking, and comments submitted to the ANPRM, PHMSA is proposing the following changes in this NPRM: Define the term ``reverse logistics''; Establish regulations for the shipment of hazardous material in the reverse logistics supply chain; Establish clear applicability to the training requirements associated with ``reverse logistics'' shipments; Provide authorized packaging for reverse logistics shipments; Establish segregation requirements for reverse logistics shipments; and Allow more flexibility for the transportation of lead acid batteries. There are no quantified costs associated with this proposed rule-- PHMSA estimates that the simplified requirements proposed in this NPRM will create a safer environment for consumer products to be returned to distribution centers. However, we do not expect any significant change in the current level of safety. Benefits have been estimated in the areas of training and shipment preparation. Due to limited data availability, the benefit estimates associated with this NPRM are based on certain key assumptions and are presented as ranges. Annual figures are presented rather than a time-series of future values since no major variations are expected from year to year. Benefits of the Proposed Rule [Reduced compliance costs] ---------------------------------------------------------------------------------------------------------------- Relevant HMR citation Category Amount of annual savings ---------------------------------------------------------------------------------------------------------------- Sec. 173.157.......................... Training....................... $4-8 million. Sec. 173.157.......................... Shipment Preparation........... 0-1 million. Sec. 173.159.......................... Transportation Costs--Battery 1-2 million. Recycling. ---------------------------------------------------------------------------------------------------------------- A complete copy of the regulatory evaluation for this rulemaking is available at http://www.regulations.gov under Docket No. PHMSA-2011- 0143. II. Background Currently, the HMR do not provide any specific exceptions for shipments made in the reverse logistics supply chain. Therefore, a hazardous material that is shipped from a retail outlet back to a distribution facility is subject to the HMR in the same manner as the original shipment to the retail outlet. The retail outlet is fully subject to the shipper's responsibility requirements provided in Sec. 173.22 of the HMR. Key shipper [[Page 46750]] responsibilities include classification, selecting a packaging, closing the packaging, communicating the hazard, and ensuring the employees are properly trained in the functions they perform. In conducting enforcement actions and outreach, we have learned that these requirements are often misunderstood or overlooked. In addition, PHMSA received two petitions requesting that we take action to provide reverse logistics requirements in a single section that is both clear and easily understood. PHMSA's observations and the petitions are described below: PHMSA Observations During investigations conducted by PHMSA field operations staff, we identified several instances where damaged hazardous materials were being shipped from retail outlets back to distribution centers without proper packaging or segregation. In most instances, non-compliant shipments were due to a lack of understanding of the HMR and hazardous materials shipping requirements. Often, returned hazardous materials and packages are damaged or compromised. Very often, the employees at the retail outlets responsible for packing and shipping these materials have little or no hazardous materials training. This may result in inadequate packaging and hazard communication. Below we identify potential problems that can occur in the reverse logistics of hazardous materials: Lack of hazardous materials training by the employees at the retail outlet; Different packaging from the original packaging being used to ship the material; Lack of knowledge regarding the hazards of the material; Potential for hazardous materials to be subject to Environmental Protection Agency (EPA) waste manifest rules; Items that were once classified as consumer commodities that no longer meet that exception; Undeclared hazardous materials shipped within the stream of commerce; Properly-marked and labeled original packaging being improperly re-used to ship returned products that are either not hazardous materials or hazardous materials for which said packaging is not authorized; and Shipments that are not accompanied by appropriate hazardous communication, such as shipping papers, emergency response numbers, placards, labels, markings, and other requirements of the HMR. PHMSA believes that reverse logistics issues involving hazardous materials will continue to rise with the increased consumption of goods in a growing economy. We also believe that it would be beneficial to identify those areas where PHMSA and the regulated community can work together to facilitate the movement of hazardous materials in the reverse logistics supply chain. Based on stakeholder petitions, the regulated industry seems to agree that we can work together to improve the reverse logistics supply chain. Specifically, PHMSA has received two petitions that provide a potential path forward to address the issues that both industry and government face. These petitions are outlined as follows: P-1528 PHMSA received a petition from the Council on the Safe Transportation of Hazardous Articles Inc. (COSTHA) outlining issues related to the return shipment of hazardous materials. In its petition for rulemaking (P-1528), COSTHA proposed that the HMR include a definition for ``reverse logistics'' in Sec. 171.8 and add a new section, Sec. 173.157 to outline the general requirements and exceptions for hazardous materials shipped in the context of reverse logistics. Additionally, in its petition, COSTHA identified an unquantifiable exposure to risk presented through undeclared hazmat from retail outlets. This includes retail operations that unknowingly return articles containing hazardous materials to the product manufacturing that are potentially compromised. COSTHA has indicated that the majority of these hazardous materials are returned to the retail outlet by the customer. COSTHA also noted that equipment powered by internal combustion engines may be returned to retail outlets after being used and may contain residual fuel, posing a hazardous materials risk. P-1561 PHMSA received a petition (P-1561) from the Battery Council International (Battery Council) involving the reverse logistics of used lead acid automobile batteries. In its petition, the Battery Council requests that PHMSA allow the shipment of used batteries from multiple shippers on a single transport vehicle under the exception provided in Sec. 173.159(e). The Battery Council notes in their petition that currently the exception in Sec. 173.159(e) does not clearly allow for shipment of used batteries from multiple shippers for the purposes of recycling. ANPRM On July 5, 2012 (77 FR 39662), PHMSA published an Advanced Notice of Proposed Rulemaking (ANPRM), to request comments on reverse logistics. Specifically, we requested comments on regulatory changes intended to reduce the burden on retail outlets that ship consumer products containing hazardous materials in the reverse logistics supply chain. We targeted questions in the ANPRM to evaluate reverse logistics shipments by highway, rail, and vessel. In response to the ANPRM, we received comments from the following individuals and organizations: 1. NUCON International, Inc. 2. Call 2 Recycle 3. Federal Express (FedEx) 4. Lisa M. Brosseau 5. United Parcel Service (UPS) 6. International Foodservice Distributors Association (IFDA) 7. RSR Corporation 8. American Trucking Associations (ATA) 9. VaporLok Products, LLC. 10. Council on Safe Transportation of Hazardous Articles (COSTHA) 11. PSC Environmental Services 12. Veolia ES Technical Solutions, L.L.C. 13. Healthcare Distribution Management Association (HDMA) 14. PharmaLink, Inc. 15. American Coatings Association, Inc. (ACA) 16. National Electrical Manufacturers Association (NEMA) 17. Hazardous and Medical Waste Program, Army Public Health Command 18. VaporLok Products, LLC. 19. Dangerous Goods Advisory Council (DGAC) 20. Minnesota Pollution Control Agency (MPCA) 21. Nickel City Ventures, Inc. 22. Battery Council International (BCI) 23. The Rechargeable Battery Association (PRBA) 24. The Food Marketing Institute (FMI) 25. MBSource, LLC 26. Association of Hazmat Shippers, Inc. 27. Retail Industry Leaders Association (RILA) 28. Labelmaster 29. Wal-Mart 30. National Association of Chain Drug Stores (NACDS) A large majority of commenters were supportive of PHMSA's efforts to provide an exception to current regulations. However, some commenters did not see a need for relief for hazardous materials in the reverse logistics supply chain. As noted in the [[Page 46751]] comments to the ANPRM, reverse logistics includes such commodities as perfumes, automotive parts, medical supplies, and batteries. Detailed responses to the comments are found below in the Review of Proposed Amendments section of this rulemaking. III. Review of Proposed Amendments PHMSA's reverse logistics initiative is the result of efforts by the Federal government to clarify and streamline regulations and reduce regulatory burden where possible. The overall intent is to provide clear and concise regulatory requirements that maintain a high level of safety. In regard to reverse logistics, PHMSA has considered petitions for rulemaking submitted by the regulated community, input from our field staff, and comments submitted to the July 5, 2012 ANPRM. As a result, PHMSA is proposing to make the following changes in this NPRM: Define the term ``reverse logistics;'' Establish a single section in the regulations for the shipment of hazardous material in the reverse logistics supply chain; Establish training requirements tailored to reverse logistics shipments; Define the authorized packaging for reverse logistics shipments; Establish segregation requirements for reverse logistics shipments; and Allow for more flexibility in the transportation of lead acid batteries. Below we describe each proposal in detail and provide our rationale for the change. A. Definition of ``Reverse Logistics'' and Applicable Hazard Classes In the ANPRM we asked how we should best define the term ``reverse logistics.'' In response, we received proposed definitions for reverse logistics from both COSTHA and Wal-Mart. We relied heavily on the input provided by the commenters to develop a proposed definition for the term. Specifically, we are proposing to add the definition to Sec. 171.8 of the HMR. The proposed definition for reverse logistics is the process of moving goods from their final destination for the purpose of capturing value, recall, replacement, proper disposal, or similar reason. PHMSA notes that as proposed in this NPRM, individual consumers would not be considered hazmat employees under Sec. 171.8 of the HMR and thus would not be directly affected by the new requirements in this rulemaking. However, individual consumers should also be sure to check United States Postal Service (USPS) or other common carrier requirements before shipping hazardous materials. B. Applicability and Hazard Classes In the ANPRM we asked for information on the hazard classes and quantities of hazardous materials that are shipped in the reverse logistics supply chain. Based on that information, we are proposing to limit the exceptions for reverse logistics to shipments made by highway. UPS notes in its comments that the consequences of aviation incidents are too great to allow these shipments by air. PHMSA agrees and is not allowing shipments under the reverse logistics section by air. Further, PHMSA is concerned that allowing shipments by rail or vessel will promote consolidation of multiple reverse logistics shipments. The intent of this exception is to provide a means of safely transporting a consumer product containing a hazardous material from a final destination, such as a retail outlet, to a disposal or repackaging location. It is not our intent for reverse logistics shipments to be consolidated and shipped overseas, for example. PHMSA also received several comments on what hazard classes should be included in a reverse logistics exception. UPS indicates that PHSMA should not include explosives such as Division 1.1, 1.2, and 1.3 that have specific defined packaging and handling instructions. In addition, UPS indicates that PHMSA should not include toxic gases (Class 2.3), dangerous when wet (Division 4.3), Oxidizers (5.1), Organic Peroxides (5.2), and Class 7 materials that require a Radioactive White-I, Yellow-II, or Yellow-III label. Wal-Mart indicates that waiving the fully-regulated hazmat requirements for reverse logistics on Classes 2.1, 2.2, 3, 4.1, 5.1, 6.1, 7, 8 and 9 would significantly reduce the burden and expense incurred in the reverse logistics supply chain. After careful review of the comments in the ANPRM, PHMSA has decided to include consumer products in hazard classes 1.4 (ammunition), 2.1, 2.2, 3, 4.1, 5.1, 5.2, 6.1, 6.2, 8 and 9 in the reverse logistics exception. PHMSA believes that limited quantities of hazardous materials in these hazard classes that are used in consumer products present a risk that is easily managed by the proposed reverse logistics exception. In addition, PHSMA believes, based on comments and petitions, that these hazard classes cover the vast majority of hazardous materials in the reverse logistics supply chain and will effectively reduce an unnecessary burden on retail outlets. C. Training Requirements In the ANPRM we asked to what extent should retail employees who package hazardous materials for shipments back to the distribution centers be subject to the requirements in 49 CFR Part 172, Subpart H. PHMSA also asked if retail employees are currently being trained for the shipment of hazardous materials under 49 CFR Part 172, Subpart H. Most comments indicate that full training is not necessary given the low risk of the materials covered. UPS supported employees meeting the full training requirements but stated that if PHMSA does reduce the training requirements, function specific training of the employees should not be compromised. PHMSA believes the training requirements proposed in this rulemaking will satisfy UPS concerns. Currently under the HMR, any person who meets the definition of a hazardous material employee is subject to the training requirements in Sec. 172.700. PHMSA recognizes that in a retail setting, it is unlikely that employees are meeting the training requirements, as their primary function is not shipping hazardous materials. In comments to the ANPRM, FMI states that any training required under the reverse logistics exception should take into account the small quantities of hazardous materials and minimal danger to the public and safety. Wal- Mart notes that requiring retail employees to meet the full training requirements in Sec. 172.700 requires tens of thousands of employees to be trained on how to package, mark, and label hazardous materials. The RILA notes that due to the seasonal sales nature of the retail industry, the retail industry can experience a very high-turnover in staff making it difficult to cost effectively train all retail staff in accordance with the HMR. In addition, Wal-Mart adds that only a small portion of items returned to retail outlets are classified as hazardous materials and vast majority of those items present little to no safety risk. Wal-Mart also adds that retail employees should be exempt from being trained in the special permit functions of a retail item. UPS sees no reason to provide exceptions from training for employees in retail establishments that routinely stock and sell inventory that is regulated as hazardous materials. However, UPS adds that if PHMSA determines to reduce the required scope of the applicable training regulations, it should take care not to waive function- specific requirements that contribute to safe shipment preparation. UPS indicates that employees should have [[Page 46752]] the full capability to create safe shipments, while understanding the basic packaging requirements, hazard segregation, and hazard communication requirements. PHMSA agrees with most commenters and is not proposing to require retail employees shipping under the proposed reverse logistics section to be fully trained under 49 CFR Part 172, Subpart H. After considering the comments from industry, PHMSA is proposing a relaxed set of training requirements. This NPRM proposes that employees shipping hazardous materials under the reverse logistics section have a minimal amount of hazardous materials training. Key to this training is the employee's knowledge of the types of materials that are being returned to the distribution centers. Further, required training would be clearly specified in the reverse logistics exception. D. Segregation Issues In the ANPRM we asked if hazardous materials are currently being properly segregated as required by Sec. 177.843 of the HMR when being shipped from retail outlets to distribution centers. Generally, commenters indicate that in many cases segregation is not necessary given the low risk associated with the materials covered. UPS noted that while there is no direct evidence that incidents involving segregation issues were necessarily associated with reverse logistics, the incidents resulting from the dangerous combination of incompatible materials underscore the need to segregate hazards in all transportation--including reverse logistics activity. In the comments to the ANPRM, ATA notes that the segregation tables could be revised to allow some hazard classes to be transported together. ATA adds, since reverse logistics would most likely encompass smaller quantities of hazardous materials or hazardous materials that are packed inside another product; the current segregation standards may not be necessary. COSTHA notes that in most cases the materials previously classified as ORM-D are in small quantities and the designation as ORM-D do not identify the hazard class. The Association of Hazmat Shippers indicates that segregation of Class 2 and Class 3 materials is unnecessary under the reverse logistics exception. Wal-Mart adds that the most volatile classes should not be excepted from segregation requirements such as Classes and Divisions 1.1, 1.2, 2.3, 4.2, 5.2, and 6 Inhalation hazards. However, Wal-Mart adds that most of these do not appear in the retail arena, and therefore, are not generally transported in a retail reverse logistics scenario. PHMSA agrees with most commenters and is proposing a section in the NPRM to allow the mixing of various hazard classes provided the packages are not leaking. If the packages are compromised, those products would need to be placed in a leak proof inner packaging for liquids or sift proof inner packaging for solids to prevent leakage if further damage were to occur. Further, for simplicity, we propose to include the reverse logistics segregation requirements in the reverse logistics exception section. E. Packaging In the ANPRM we asked if PHMSA should define specification packages for materials shipped under reverse logistics. PHMSA received multiple comments on the types of packaging that should be required under the reverse logistics exception. In addition, through investigations, PHMSA discovered that currently many shipments of hazardous materials are improperly packaged in the reverse logistics supply chain. In its comments, UPS notes that shipments made under the reverse logistics exception may contain packages with unsecured closures that are subject to leakage. In addition, UPS expresses concern that the outer packaging used in the reverse logistics process may not be designed to contain spills from damaged retail items. UPS indicates that PHMSA should require packages that are used in the reverse logistics supply chain to incorporate an outer packaging and absorbent material capable of fully containing any leakage from the inner packagings. The Association of Hazmat Shippers adds that limited quantity and consumer commodity shipments might track the Canadian limited quantity example in TDG 1.17. Specifically, each package meeting the general packaging requirements, weighing no more than 30 kg, meeting limited quantity inner packaging limits, and marked with ORM-D or the new limited quantity diamond, should be excepted from specification packaging requirements, any other markings, labels, placards, hazmat employee training, unintended release reporting, and security requirements when shipped by road, rail, or vessel when engaged in domestic transportation. Wal-Mart indicates that there is no need for specification packaging for consumer products in the reverse logistics supply chain based on the limited transportation risk they present. Rather, Wal-Mart recommends a common sense requirement that is simple to understand and execute. For instance, inner containers should be securely closed, protected against damage, and secured against movement within the outer package along with a compatible packing material. Outer packaging should be strong outer packaging of good integrity that clearly identifies the content. Wal-Mart also presents a scenario where a fully regulated cylinder of a non-flammable gas is returned to a retail outlet. In these cases, a retail associate cannot determine whether a container is empty, making it impossible for the associate to determine if the cylinder still meets the definition for class 2.2 non-flammable compressed gas. Wal-Mart suggests allowing the shipment of these cylinders as hazmat even if they may not meet the definition of a Class 2 non-flammable gas. Another commenter, RILA suggests that any sturdy, six-sided container will adequately protect the consumer products in the reverse logistics supply chain. Further, RLA suggests the use of orientation arrows and securement. After carefully weighing the comments from the ANPRM, PHMSA is proposing a set of packaging standards under the proposed reverse logistics exception that will ensure consistent and safe packaging requirements for these low hazard items. This includes requiring the use of the original package or a package of equivalent strength or integrity. It also requires that inner packagings be leakproof for liquids and siftproof for solids. Further, for liquids, the outer packaging must contain enough absorbent material to contain a spill from the inner packagings. The exception will also provide that packages be secured against shifting through the use of cages, carts, and bins. F. Battery Recycling This NPRM also addresses an existing exception concerning the reverse logistics shipment of lead acid batteries. As noted in the ANPRM and in the Background section above, PHMSA received a petition from BCI to modify the exception in Sec. 173.159(e) to allow for the pickup of batteries from multiple retail entities for the purposes of recycling. Currently, the HMR include a single shipper provision which prohibits the pickup of batteries from multiple locations. PHMSA received several comments in support of modifying the battery exception in Sec. 173.159(e) to allow for pickup of used automobile batteries from multiple shipper locations. However, RSR Corporation urges PHMSA to keep the single shipper [[Page 46753]] provision in intact. RSR Corporation indicates that the removal of the provision would lead to an increase in incidents involving the transportation of used lead acid batteries. PHMSA does not believe that allowing a battery recycler to pick up batteries from multiple shipping locations will lead to an increase in incidents involving the transportation of used automobile batteries. PHMSA believes that the proposed requirements in Sec. 173.159(e) that batteries shipped under this section must be blocked, braced, or otherwise secured to prevent contact with or damage to batteries will prevent an increase in incidents. In addition, reducing the regulatory burden on lead acid battery recyclers is likely to encourage an even greater rate of recycling among lead acid battery recyclers. Also, as noted by BCI, allowing the collection of lead acid batteries from multiple locations will result in more batteries on a single truck and fewer miles traveled to accomplish battery collection activities. This will lead to a reduction in the number of highway miles traveled, thus reducing the risk of accidents on the highway. PHMSA does not anticipate any negative impacts on safety. Therefore, in this NPRM PHMSA is proposing to revise Sec. 173.159(e)(4) to allow for the pick- up of used automotive batteries from multiple retail locations for the purposes of recycling as long as the pallets are built so they will not cause damage to another pallet during transportation. In addition, PHMSA is requiring an incident report to be filed for any spill that occurs while operating under the expanded battery exception. V. Rulemaking Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This NPRM is published under the authority of the Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101 et seq. Section 5103(b) authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This NPRM provides for regulations for the shipment of consumer products in the reverse logistics supply chain. B. Executive Order 13610, Executive Order 13563, Executive Order 12866, and DOT Regulatory Policies and Procedures This notice of proposed rulemaking is not considered a significant regulatory action under Executive Order 12866 and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).\\1\\ A regulatory evaluation is available for review in the public docket for this rulemaking, and PHMSA seeks comments on the methodology, assumptions, and calculations contained within it. --------------------------------------------------------------------------- \\1\\ See http://www.whitehouse.gov/omb/inforeg_riaguide/ . --------------------------------------------------------------------------- Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. Executive Order 13563, issued January 18, 2011, notes that our nation's current regulatory system must not only protect public health, welfare, safety, and our environment but also promote economic growth, innovation, competitiveness, and job creation.\\2\\ Further, this executive order urges government agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. In addition, federal agencies were asked to periodically review existing significant regulations, retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and modify, streamline, expand, or repeal regulatory requirements in accordance with what has been learned. --------------------------------------------------------------------------- \\2\\ See http://www.whitehouse.gov/the-press-office/2011/01/18/improving-regulation-and-regulatory-review-executive-order . --------------------------------------------------------------------------- Executive Order 13610, issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies.\\3\\ --------------------------------------------------------------------------- \\3\\ See http://www.gpo.gov/fdsys/pkg/FR-2012-05-14/pdf/2012-11798.pdf . --------------------------------------------------------------------------- By building off of each other, these three Executive Orders require agencies to regulate in the ``most cost-effective manner,'' to make a ``reasoned determination that the benefits of the intended regulation justify its costs,'' and to develop regulations that ``impose the least burden on society.'' PHMSA has evaluated the HMR with respect to reverse logistics and identified areas that could be modified to enhance the program and increase flexibility for the regulated community. In this NPRM, the proposed amendments to the HMR will not impose increased compliance costs on the regulated industry. By proposing to add a Sec. 173.157 to the HMR for items shipped in the reverse logistics supply chain, PHMSA will reduce regulatory burden and increase flexibility to industry, while maintaining an equivalent level of safety. There may be a number of retailers who are currently not in compliance with the HMR when shipping hazardous materials in the reverse logistics supply chain. It is not feasible for PHMSA to quantify the number of retail outlets who are in non-compliance. However, PHMSA believes through a simplified regulatory approach and outreach, the proposed standards will create regulatory framework that will assist these retail outlets in complying with the HMR. In addition to providing a new reverse logistics exception, this rulemaking also proposes to expand an existing exception for reverse logistics shipments of used automobile batteries that are being shipped from a retail facility to a recycling center. This change to the HMR will reduce the burden on the regulated community when consolidating shipments of lead acid batteries for recycling. A summary of the regulatory evaluation used to support the proposals presented in this NPRM are discussed below. A complete copy of the regulatory evaluation for this rulemaking is available at http://www.regulations.gov under Docket No. PHMSA-2011-0143. Regulatory Evaluation For the regulatory evaluation of this NPRM, PHMSA assumes that this rulemaking would reduce shipping paper preparation costs for shipments involving relevant quantities of the affected commodity types, through the elimination of requirements to describe the hazardous materials in shipping papers. Similarly, the rule also eliminates the requirement for emergency response information for those shipments that currently require a shipping paper. Packages affected by the proposed rule would no longer require either material-specific markings and labels, or limited-quantity or ORM-D markings. Vehicles carrying packages affected by the proposed rule would no longer require placarding. The training requirements would also be reduced to a level commensurate with the risk posed by these consumer products. In addition, PHMSA is proposing to relax the requirements for recycling used lead [[Page 46754]] acid batteries. The change will reduce the transportation costs associated with recycling of lead acid batteries. A table identifying the benefits associated with this NPRM is provided below: Benefits of the Proposed Rule [Reduced compliance costs] ---------------------------------------------------------------------------------------------------------------- Relevant HMR citation Category Amount of annual savings ---------------------------------------------------------------------------------------------------------------- Sec. 173.157.......................... Training....................... $4-8 million. Sec. 173.157.......................... Shipment Preparation........... $0-1 million. Sec. 173.159.......................... Transportation Costs--Battery $1-2 million. Recycling. ---------------------------------------------------------------------------------------------------------------- PHMSA does not expect any additional cost to the regulated community as a result of the proposed changes. PHMSA welcomes additional comments from the regulated community on any cost or benefits resulting from this proposed action. C. Executive Order 13132 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (``Federalism''), and the President's memorandum on ``Preemption'' published in the Federal Register on May 22, 2009 (74 FR 24693). This proposed rule will preempt State, local, and Indian tribe requirements but does not propose any regulation that 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. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazardous materials transportation law, 49 U.S.C. 5101- 5128, contains an express preemption provision (49 U.S.C. 5125 (b)) that preempts State, local, and Indian tribe requirements on the following subjects: (1) The designation, description, and classification of hazardous materials; (2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials; (3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents; (4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and (5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. This proposed rule addresses all the covered subject areas above. If adopted as final, this rule will preempt any State, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are ``substantively the same'' as the Federal requirements. Furthermore, this proposed rule is necessary to update, clarify, and provide relief from regulatory requirements. Federal hazardous materials transportation law provides at Sec. 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. 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. PHMSA has determined that the effective date of Federal preemption for these requirements will be one year from the date of publication of a final rule in the Federal ","truncated":true,"body_characters":64753}