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• Publication Date: 09/10/1993
• Publication Type: Proposed Rules
• Fed Register #: 58:47690-47692
• Standard Number: 1910.1201; 1926.60; 1915.100; 1917.29; 1918.100; 1928.21
• Title: Retention of Markings and Placards.

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, 1918, 1926, and 1928

[Docket No. H-022I]

[RIN: 1218-AB42]

Retention of Markings and Placards

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Proposed rule.

SUMMARY: OSHA is hereby proposing a requirement for employers who receive packages, containers, motor vehicles, rail freight cars, aircraft or vessels which contain hazardous materials and which are required to be marked, placarded, or labeled in accordance with regulations issued under the Hazardous Materials Transportation Act, to retain the markings, placards, and labels, and any other information as may be required by such regulations on the packages, containers, motor vehicles, rail freight cars, aircraft or vessels until the hazardous materials have been removed therefrom. This rule is proposed pursuant to section 6(b) of the Occupational Safety and Health Act of 1970 (the Act) and in accordance with section 29 of Public Law 101-615, the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA).

DATES: Written comments on the issues discussed in this notice and requests for informal public hearings must be postmarked by October 12, 1993.

ADDRESSES: Comments and hearing requests must be submitted in quadruplicate to the Docket Officer, Docket No. H-022I, Occupational Safety and Health Administration, Room N-2625, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, telephone: (202) 219-7894, where they will be available for public inspection and copying.

FOR FURTHER INFORMATION CONTACT: Mr. James F. Foster, OSHA Office of Public Affairs, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, telephone (202) 219-8151.

SUPPLEMENTARY INFORMATION: Public Law 101-615, the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA), 104 Stat. 3244, was enacted by Congress on November 17, 1990. Section 29 of HMTUSA reads as follows:

Not later than 18 months after the date of enactment of this Act, the Secretary of Labor, in consultation with the Secretary of Transportation and the Secretary of the Treasury, shall issue under section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)) standards requiring any employer who receives a package, container, motor vehicle, rail freight car, aircraft, or vessel which contains a hazardous material and which is required to be marked, placarded, or labeled in accordance with regulations issued under the Hazardous Materials Transportation Act to retain the markings, placards, and labels, and any other information as may be required by such regulations on the package, container, motor vehicle, rail freight car, aircraft, or vessel, until the hazardous materials have been removed therefrom.

The rule being proposed today is being issued in accordance with the requirements of HMTUSA.

OSHA believes that this rule will impose no significant compliance burdens on industry. It requires only that when hazardous materials are transported in packagings or vehicles which are already required by the Department of Transportation to be marked, placarded, or labeled, and such packagings or vehicles are received by an employer, that employer must assure that the markings, placards, and labels, and any other information required by the DOT regulations to be displayed on the packagings or vehicles, remain thereon until the hazardous materials have been removed so that they no longer pose a health or safety risk.

The Congressional rationale for this requirement was provided in Senate Report No. 101-449, (p. 16), as follows:

In November 1988, six Kansas City firemen were killed when the arson-caused fire they were fighting caused the violent explosion of an unmarked truck-trailer parked at a highway construction site. Because the trailer's hazardous materials placards had been removed, the firemen were unaware of the danger it posed. The Secretaries of Labor, Transportation and the Treasury should cooperate in order to ensure that placards and labels required on hazardous materials and explosives, both in transportation and at stationary facilities, be retained until such materials have been removed to the extent that they no longer pose a safety risk.

Congress was specific in its mandate to OSHA for this rule, and the rule itself is limited to implementing the Congressional mandate. In this proposal, OSHA has slightly elaborated on the statutory language to the extent necessary to ensure that its requirements are clear. This regulation is essentially a continuation of the DOT regulations, so employers may wish to consult those regulations, which are codified at 49 CFR Parts 171 - 180, in regard to complying with this section.

While OSHA does not believe that these provisions require further elaboration, comments and information are invited on the following issues. Any comments received will be considered before issuing the final standard on the retention of markings and placards.

(1) OSHA believes that the proposed standard would have only a minimal cost impact on affected employers and that such costs would be associated with the replacement of placards and labels that have been damaged or lost. OSHA specifically requests information from employers who have had experience with lost or damaged DOT placards and labels to assess more fully the associated costs.

(a) How frequently do incidents of lost or damaged placards and labels occur?
(b) In your experience, when DOT placards and labels have required replacement what have been the associated costs?
(c) How much time is required to replace placards and labels?
(d) What are the unit prices for placards and labels?

(2) The length of time that a container, motor vehicle, rail freight car, aircraft, vessel or similar receptacle which contains hazardous materials remains on a worksite obviously varies. Please describe the average length of time that such containers may be present at your worksite.

(3) The proposed standard requires that DOT placards and labels remain on containers of hazardous materials until the material has been removed so that it no longer poses a safety or health risk.

(a) What problems, if any, may be encountered in achieving this requirement?
(b) If problems may arise, what alternative solutions would you recommend?
(c) What measures do employers take to assure that placards and labels remain on containers of hazardous materials?

(4) Have you had incidences of injury or illness that have resulted from workers handling unlabelled vehicles, containers, etc., covered by the proposed rule? In addition to the issues addressed above, OSHA invites comments on any other concerns that may be pertinent to this proposed regulation.

Because Congress has directed that OSHA issue this regulation for all employers covered by the OSH Act, this notice includes separate but identical standards for general industry (1910.1201), construction (1926.60), shipyards (1915.100), marine terminals (1917.29), and longshoring (1918.100). The general industry standard will also be added to the list of Part 1910 standards which apply to agricultural operations, as a new paragraph (a)(7) of 1928.21.

In preparing this proposed rule, OSHA has consulted with delegated officials of the Secretary of Transportation and the Secretary of the Treasury, as required by HMTUSA.

A 30-day comment period is being provided for those who wish to comment on the issues raised in this notice. In addition, pursuant to 6(b)(3) of the Act, any interested person, on or before the last day of the period provided for the submission of written comments, may file with the Secretary written objections to the proposed rule, stating the grounds therefor and requesting a public hearing on such objections. In accordance with 29 CFR 1911.11, any objections submitted must be accompanied by a summary of the evidence proposed to be adduced at the requested hearing.

Regulatory Flexibility Act

OSHA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Executive Orders 12291, 12612 and 12778

This rule is not a major rule for the purposes of Executive Order 12291. It also does not have federalism implications warranting the preparation of a Federalism Assessment in accordance with Executive Order 12612. This rule has been certified in accordance with Executive Order 12778 regarding Civil Justice Reform.

Paperwork Reduction Act

This rulemaking action imposes no recordkeeping or other paperwork burdens under the Paperwork Reduction Act.

LIST OF INDEX TERMS

Occupational safety and health, hazardous materials transportation, hazardous substances, explosives, chemicals, health, safety.

This document was prepared under the direction of David C. Zeigler, Acting Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, Washington, D.C. 20210.

Accordingly, pursuant to section 29 of the Hazardous Materials Transportation Uniform Safety Act of 1990 (Pub. L. 101-615, 104 Stat. 3277), sections 4 and 6(b) of the Occupational Safety and Health Act (29 U.S.C. 653, 655), Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941), Sec. 107, Contract Work Hours and Safety Standards Act (40 U.S.C. 333), Secretary of Labor's Order No. 1-90 (55 FR 9033), and 29 CFR Part 1911, Parts 1910, 1915, 1917, 1918, 1926, and 1928 of 29 CFR are proposed to be amended as set forth below.

Signed this 2nd day of September, 1993.

David C. Zeigler
Acting Assistant Secretary of Labor

OSHA is proposing to amend Parts 1910, 1915, 1917, 1918, 1926, and 1928 of Title 29 of the Code of Federal Regulations as follows:

PART 1910 - OCCUPATIONAL SAFETY AND HEALTH STANDARDS PART 1915 - OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR SHIPYARD EMPLOYMENT PART 1917 - MARINE TERMINALS PART 1918 - SAFETY AND HEALTH REGULATIONS FOR LONGSHORING PART 1926 - SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION

PART 1910 - [AMENDED]

1. The authority citation for Subpart Z of Part 1910 is revised to read as follows:

Authority: Secs. 4, 6, and 8, Occupational Safety and Health Act, 29 U.S.C. 653, 655, and 657; Secretary of Labor's Orders Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033), as applicable; and 29 CFR Part 1911.

All of Subpart Z issued under section 6(b) of the Occupational Safety and Health Act, 29 U.S.C. 655(b) except those substances listed in the Final Rule Limits columns of Table Z-1-A, which have identical limits listed in the Transitional Limits columns of Table Z-1-A, Table Z-2 or Table Z-3. The latter were issued under Section 6(a) (29 U.S.C. 655(a)). Section 1910.1000, the Transitional Limits columns of Table Z- 1-A, Table Z-2, and Table Z-3 also issued under 5 U.S.C. 533. Section 1910.1000, the Transitional Limits columns of Table Z-1- A, Table Z-2 and Table Z-3 not issued under 29 CFR Part 1911 except for the arsenic, benzene, cotton dust, and formaldehyde listings.

Section 1910.1001 also issued under Sec. 107 of Contract Work Hours and Safety Standards Act, 40 U.S.C. 333.

Section 1910.1002 not issued under 29 U.S.C. 655 or 29 CFR Part 1911; also issued under 5 U.S.C. 553.

Section 1910.1025 also issued under 5 U.S.C. 553. Section 1910.1043 also issued under 5 U.S.C. 551 et seq. Section 1910.1201 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3244 (49 U.S.C. 1801-1819 and 5 U.S.C. 553).

Sections 1910.1200, 1910.1499 and 1910.1500 also issued under 5 U.S.C. 553.

PART 1915 - [AMENDED]

2. The authority citation for part 1915 is revised to read as follows:

AUTHORITY: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033) as applicable; and 29 CFR part 1911.

Section 1915.99 also issued under 5 U.S.C. 553. Section 1915.100 also issued under Section 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3244 (49 U.S.C. 1801-1819 and 5 U.S.C. 553).

PART 1917 - [AMENDED]

3. The authority citation for part 1917 is revised to read as follows:

AUTHORITY: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033) as applicable; 29 CFR Part 1911.

Section 1917.28 also issued under 5 U.S.C. 553. Section 1917.129 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3277) and 5 U.S.C. 553.

PART 1918 - [AMENDED]

4. The authority citation for part 1918 is revised to read as follows:

AUTHORITY: Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033) as applicable.

Section 1918.90 also issued under 5 U.S.C. 553 and 29 CFR Part 1911.

Section 1918.100 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3244 (49 U.S.C. 1801-1819, 5 U.S.C. 553, and 29 U.S.C. Part 1911).

PART 1926 - [AMENDED]

5. The authority citation for subpart D of part 1926 is revised to read as follows:

AUTHORITY: Sec. 107, Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 333); secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736) or 1-90 (55 FR 9033) as applicable.

Section 1926.59 also issued under 5 U.S.C. 553 and 29 CFR Part 1911.

Section 1926.60 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3277), 5 U.S.C. 553, and 29 U.S.C. Part 1911. PARTS 1910, 1915, 1917, 1918, AND 1926 - [AMENDED]

6. Parts 1910, 1915, subpart F; 1917, subpart B; 1918, subpart I and 1926, subpart D of Title 29 of the Code of Federal Regulations are amended by adding identical sections as 1910.1201, 1915.100, 1917.29, 1918.100 and 1926.60 to read as follows:

****.*** Retention of markings and placards.

(a) Any employer who receives a package, container, motor vehicle, rail freight car, aircraft, or vessel which contains a hazardous material and which is required to be marked, placarded, or labeled in accordance with regulations issued under the Hazardous Materials Transportation Act, codified at 49 CFR Parts 171 - 180, shall retain the markings, placards, and labels, and any other information as may be required by such regulations on the package, container, motor vehicle, rail freight car, aircraft, vessel, or similar receptacle in accordance with the following:

(1) Such markings, placards and labels shall be retained on the package, container, motor vehicle, rail freight car, aircraft, vessel, or similar receptacle until the hazardous materials have been removed therefrom so that they no longer pose a health or safety risk.

(2) Such markings, placards and labels shall be maintained in a manner that ensures that the legend is readily visible.

(b) For the purposes of this section, the term "hazardous material" has the same definition as in the Hazardous Materials Regulations of the U.S. Department of Transportation at 49 CFR 171.8.

PART 1928 - OCCUPATIONAL SAFETY AND HEALTH STANDARDS

FOR AGRICULTURE

7. The authority citation for Part 1928 is revised to read as follows:

AUTHORITY: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable; 29 CFR Part 1911.

Section 1928.21 also issued under Sec. 29, Hazardous Materials Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 3244 (49 U.S.C. 1801-1819 and 5 U.S.C. 553).

PART 1928 - [AMENDED]

8. Section 1928.21 is proposed to be amended by adding a new paragraph (a)(7) to the list of part 1910 standards applicable to agriculture as follows:

1928.21 Applicable standards in 29 CFR Part 1910. (a) * * * (7) Retention of markings and placards -- 1910.1201.

* * * * *

[FR Doc. 93-21869 Filed 9-9-93; 8:45 am]


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