[Federal Register Volume 68, Number 210 (Thursday, October 30, 2003)]
[Rules and Regulations]
[Pages 61906-61942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27057]
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Part III
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 171, 173, 174, et al.
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage; Final Rule
Federal Register / Vol. 68, No. 210 / Thursday, October 30, 2003 /
Rules and Regulations
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173, 174, 175, 176, 177, and 178
[Docket No. RSPA-98-4952 (HM-223)]
RIN 2137-AC68
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: RSPA is clarifying the applicability of the Hazardous
Materials Regulations (HMR) to specific functions and activities,
including hazardous materials loading and unloading operations and
storage of hazardous materials during transportation. We are also
listing in the HMR pre-transportation functions to which the HMR apply.
Pre-transportation functions are functions performed to prepare
hazardous materials for transportation in commerce by persons who offer
a hazardous material for transportation or cause a hazardous material
to be transported. Transportation functions are functions performed as
part of the actual movement of hazardous materials in commerce,
including loading, unloading, and storage of hazardous materials that
is incidental to that movement. For purposes of applicability of the
HMR, ``transportation in commerce'' begins when a carrier takes
possession of a hazardous material and continues until the carrier
delivers the package containing the hazardous material to its
destination as indicated on shipping papers or other shipping
documentation.
DATES: This final rule is effective October 1, 2004.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of
Hazardous Materials Standards, Research and Special Programs
Administration; or Donna O'Berry (202) 366-4400, Office of the Chief
Counsel, Research and Special Programs Administration.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
II. Summary of Final Rule
III. Analysis of Comments
A. Packaging Specifications
B. Pre-Transportation Functions
C. Transportation that is ``in Commerce''
D. Transportation Functions Subject to the HMR
E. State/Local Requirements and Preemption
F. OSHA, EPA, and ATF Programs and Regulations
IV. Revisions to Sec. 174.67
V. Section-by-Section Review
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Executive Order 13132
C. Executive Order 13175
D. Regulatory Flexibility Act
E. Paperwork Reduction Act
F. Regulation Identifier Number (RIN)
G. Unfunded Mandates Reform Act
H. Environmental Assessment
I. Privacy Act Statement
I. Background
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) are
promulgated under the mandate in section 5103(b) of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq., as amended by section 1711 of the Homeland Security Act of 2002,
Pub. L. 107-296) that the Secretary of Transportation ``prescribe
regulations for the safe transportation, including security, of
hazardous material in intrastate, interstate, and foreign commerce.''
Section 5103(b)(1)(B) provides that the HMR ``shall govern safety
aspects, including security, of the transportation of hazardous
material the Secretary considers appropriate.''
``Transportation'' is defined as ``the movement of property and
loading, unloading, or storage incidental to the movement.'' 49 U.S.C.
5102(12). ``Commerce'' is defined as ``trade or transportation in the
jurisdiction of the United States between a place in a State and a
place outside of the State; or that affects trade or transportation
between a place in a State and a place outside of the State.'' 49
U.S.C. 5102(1). Neither the statute nor the HMR define the terms
``loading incidental to movement,'' ``unloading incidental to
movement,'' or ``storage incidental to movement.'' The legislative
history of the statute does not clarify this matter.
On June 14, 2001, the Research and Special Programs Administration
(RSPA, we) issued a notice of proposed rulemaking (NPRM; 66 FR 32420)
proposing to clarify the applicability of the HMR to specific functions
and activities, including hazardous materials loading and unloading
operations and storage of hazardous materials during transportation.
The proposals in the NPRM were based on previously issued
administrative determinations as to the applicability of the HMR,
including informal letters of interpretation, formal interpretations
published in the Federal Register, inconsistency rulings, and
preemption determinations. In the NPRM, we proposed to key the
definition of ``transportation in commerce'' to a carrier's possession
of a hazardous materials shipment. As we stated in the NPRM, we believe
this approach is most consistent with the intent of Federal hazmat law
and with other Federal statutes governing the regulation of hazardous
materials at fixed facilities.
As we explained in the NPRM, using this approach, the HMR would
continue to apply, as they do now, to certain activities performed by
offerors to prepare a hazardous material for transportation. We
proposed a new term to describe these activities--``pre-transportation
functions.'' These are functions that affect the safe movement of
hazardous materials during transportation. ``Transportation in
commerce'' would begin when a carrier takes physical possession of a
hazardous materials package or shipment for purposes of transporting it
and would continue until delivery of the package to its consignee or
destination as evidenced by the shipping documentation under which the
hazardous material is moving, such as shipping papers, bills of lading,
freight orders, or similar documentation. The HMR would apply to all
carrier activities after the carrier takes possession of the hazardous
material from an offeror for purposes of transporting it until the
package is delivered to its destination, including loading and
unloading activities conducted by carrier personnel. We proposed that,
for purposes of the HMR, such activities would be considered loading or
unloading ``incidental to movement.'' In addition, the HMR would apply
to storage of a hazardous materials package by any party between the
time that a carrier takes possession of the hazardous material for
purposes of transporting it until the package is delivered to its
intended destination, as evidenced by the shipping documentation under
which the package is moving. Except for rail cars stored on leased
track, we proposed that such storage would be considered storage
``incidental to movement.'' We proposed and requested comment on two
alternatives for applying the HMR to rail cars stored on leased track
in certain circumstances.
In addition, the NPRM described the statutory authorities and
associated regulatory programs of the Department of Labor's
Occupational Safety and Health Administration (OSHA) and the
Environmental Protection Agency (EPA) and explained their applicability
to
[[Page 61907]]
operations at fixed facilities involving hazardous materials. The NPRM
indicated that facilities at which functions regulated by the HMR occur
might also be subject to applicable OSHA and/or EPA regulations.
Finally, the NPRM discussed the preemption provisions of Federal hazmat
law and indicated that facilities at which functions regulated by the
HMR occur may also be subject to laws and regulations of state, local,
or tribal governments.
II. Summary of Final Rule
This final rule amends the HMR to incorporate the following new
definitions and provisions:
[sbull] We are defining a new term--``pre-transportation
function''--to mean a function performed by any person that is required
to assure the safe transportation of a hazardous material in commerce.
When performed by shipper personnel, loading of packaged or
containerized hazardous material onto a transport vehicle, aircraft, or
vessel and filling a bulk packaging with hazardous material in the
absence of a carrier for the purpose of transporting it is a pre-
transportation function as that term is defined in this final rule.
Pre-transportation functions must be performed in accordance with
requirements in the HMR.
[sbull] We are defining ``transportation'' to mean the movement of
property and loading, unloading, or storage incidental to the movement.
This definition is consistent with the definition of ``transportation''
in Federal hazmat law. Transportation in commerce begins when a carrier
takes physical possession of a hazardous material for the purpose of
transporting it and continues until delivery of the package to its
consignee or destination as evidenced by the shipping documentation
under which the hazardous material is moving, such as shipping papers,
bills of lading, freight orders, or similar documentation.
[sbull] We are defining ``movement'' to mean the physical transfer
of a hazardous material from one geographic location to another by rail
car, aircraft, motor vehicle, or vessel.
[sbull] We are defining ``loading incidental to movement'' to mean
the loading by carrier personnel or in the presence of carrier
personnel of packaged or containerized hazardous material onto a
transport vehicle, aircraft, or vessel for the purpose of transporting
it. For a bulk packaging, ``loading incidental to movement'' means the
filling of the packaging with a hazardous material by carrier personnel
or in the presence of carrier personnel for the purpose of transporting
it. Loading incidental to movement is regulated under the HMR. Note,
however, that, as discussed elsewhere in this preamble, OSHA shares
jurisdiction for certain aspects of the loading operation.
[sbull] We are defining ``unloading incidental to movement'' to
mean the removal of a packaged or containerized hazardous material from
a transport vehicle, aircraft, or vessel or the emptying of a hazardous
material from a bulk packaging after a hazardous material has been
delivered to a consignee and prior to the delivering carrier's
departure from the consignee facility or premises. Unloading incidental
to movement is subject to regulation under the HMR. Note, however,
that, as discussed elsewhere in this preamble, OSHA shares jurisdiction
for certain aspects of the unloading operation. Unloading by a
consignee after the delivering carrier has departed the facility is not
unloading incidental to movement and not regulated under the HMR.
[sbull] We are defining ``storage incidental to movement'' to mean
storage by any person of a transport vehicle, freight container, or
package containing a hazardous material between the time that a carrier
takes physical possession of the hazardous material for the purpose of
transporting it until the package containing the hazardous material is
physically delivered to the destination indicated on a shipping
document. However, in the case of railroad shipments, even if a
shipment has been delivered to the destination shown on the shipping
document, if the track is under the control of a railroad carrier or
track is used for purposes other than moving cars shipped to or from
the lessee, storage on the track is storage incidental to movement. We
have revised the definition of ``private track or private siding'' to
make this clear. Storage at a shipper facility prior to a carrier
exercising control over or taking possession of the hazardous material
or storage at a consignee facility after a carrier has delivered the
hazardous material is not storage incidental to movement and is not
regulated under the HMR.
[sbull] We are amending Sec. 171.1 of the HMR to list regulated
and non-regulated functions. Regulated functions include: (1)
Activities related to the design, manufacture, and qualification of
packaging represented as qualified for use in the transportation of
hazardous materials; (2) pre-transportation functions; and (3)
transportation functions (movement of a hazardous material and loading,
unloading, and storage incidental to the movement). Non-regulated
functions include: (1) Rail and motor vehicle movements of a hazardous
material solely within a contiguous facility where public access is
restricted; (2) transportation of a hazardous material in a transport
vehicle or conveyance operated by a Federal, state, or local government
employee solely for government purposes; (3) transportation of a
hazardous material by an individual for non-commercial purposes in a
private motor vehicle; and (4) any matter subject to U.S. postal laws
and regulations.
[sbull] We are amending Sec. 171.1 of the HMR to indicate that
facilities at which functions are performed in accordance with the HMR
may be subject to applicable standards and regulations of other Federal
agencies or to applicable state or local government laws and
regulations (except to the extent that such non-Federal requirements
may be preempted under Federal hazmat law). Federal hazmat law does not
preempt other Federal statutes nor does it preempt regulations issued
by other Federal agencies to implement statutorily authorized programs.
This final rule is intended to clarify the applicability of the HMR to
specific functions and activities. It is not appropriate for DOT to
attempt to clarify the applicability of other Federal agencies'
statutes or regulations to particular functions or activities. However,
it is important to note that facilities at which pre-transportation or
transportation functions are performed must comply with OSHA and state
or local regulations applicable to physical structures--for example,
noise and air quality control standards, emergency preparedness, fire
codes, and local zoning requirements. Facilities may also have to
comply with applicable state and local regulations for hazardous
materials handling and storage operations. Facilities at which pre-
transportation or transportation functions are performed may also be
subject to EPA and other OSHA regulations. For example, facilities may
be subject to EPA's risk management; community right-to-know; hazardous
waste tracking and disposal; and spill prevention, control and
countermeasure requirements, and OSHA's process safety management and
emergency preparedness requirements. Similarly, facilities at which
pre-transportation functions are performed may also be subject to
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) concerning the handling of explosives. Questions as to the
applicability of EPA, OSHA, or ATF regulations to particular facilities
or
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operations should be directed to the appropriate EPA, OSHA, or ATF
office.
The provisions of this final rule are explained in more detail in
the following preamble discussion.
III. Analysis of Comments
We received more than 120 comments on the NPRM. Commenters included
representatives of individual shippers and carriers, industry trade
associations, state and local governments, and the National
Transportation Safety Board (NTSB). Most commenters express support for
the goals of this rulemaking, but oppose many of the specific proposals
in the NPRM. Generally, industry commenters express concern that the
NPRM appears to contradict one of the major goals of Federal hazmat
law--establishment of uniform national regulations for the safe
transportation in commerce of hazardous materials. On the other hand,
commenters representing state and local governments generally support
the NPRM proposals. The comments are discussed in detail below.
Several commenters submitted comments that are outside of the scope
of this rulemaking. For example, one commenter wants us to eliminate
any regulation that allows shippers to prepare and load any hazardous
material into a non-bulk fiber drum. This commenter also suggests that
we develop a uniform hazardous materials shipping paper or bill of
lading. Several other commenters recommend revisions to the current
training requirements in Subpart H of Part 172. Other commenters
suggest that we should provide special handling provisions applicable
to the transportation and recycling of lead batteries. Because these
comments are beyond the scope of this rulemaking, they are not
addressed in this final rule.
A. Packaging Specifications
The NPRM proposed that Federal hazmat law and the HMR would
continue to apply, as they do currently, to persons who manufacture,
mark, maintain, recondition, repair, or test packagings or components
thereof that are represented, marked, certified, or sold as qualified
for use in the transportation of hazardous materials in commerce.
Packaging integrity is critical to safe transportation of hazardous
materials; therefore, it is imperative that DOT exercise jurisdiction
over packaging requirements to the exclusion of state and local
governments. Further, uniformity of packaging specifications assures
the safe and efficient movement of hazardous materials across state
lines and international boundaries. Thus, consistent with the
preemption provisions of Federal hazmat law, the Secretary's regulatory
jurisdiction in this area must preempt state and local law. The NPRM
noted that a packaging marked to certify that it conforms to HMR
requirements must be maintained in accordance with applicable
specification requirements whether or not it is in transportation in
commerce at any particular time.
Commenters generally support this aspect of the NPRM. Commenters
agree that the packaging requirements ``directly affect packaging
integrity and are specifically delineated in the enabling statute.''
(American Chemistry Council)
Three commenters express concern that the requirement to maintain a
certified packaging in accordance with applicable specification
requirements whether or not it is in transportation will impose a
significant compliance burden. The commenters ``purchase many
containers, such as steel drums, which arrive with DOT or UN
specification markings, but are used for purposes other than the
transport of hazardous materials. Since DOT or UN specification
markings are permanently affixed to such containers, and cannot be
easily removed or covered, this requirement would require considerable
effort to establish a separate supply chain * * *'' (Detroit Edison)
Another commenter states, ``Containers are used in facilities for a
number of things from interim storage to waste receptacles. A facility
should not be required to maintain the certification for a package if
it is in any other use than for transportation.'' (Nuclear Energy
Institute)
The specification markings on DOT or UN specification packagings
certify that the packaging has been designed, tested, and maintained in
conformance with all applicable HMR requirements. The NPRM proposed no
change in the current applicability of the HMR to packagings that are
represented, marked, certified, or sold as qualified for use in the
transportation of hazardous materials in commerce. We recognize that
many entities use DOT or UN specification packagings for temporary or
permanent storage of hazardous materials. However, because a packaging
that is used for storage one day may be used for transportation the
next, it is critical to transportation safety that packagings
represented as meeting DOT or UN specification requirements in fact do
so.
A DOT or UN specification packaging that does not conform to the
marked standard must be clearly identified by the manufacturer or
distributor as not conforming to the marked standard. Under the
notification provisions of Sec. 178.2(c) of the HMR, the manufacturer
and each subsequent distributor of a non-conforming packaging must
inform customers of all regulatory requirements not met at the time of
transfer. For example, the manufacturer of a drum for which both
conforming and non-conforming covers are offered may indicate as part
of the notification requirement that, when fitted with the non-
conforming cover, the drum does not conform to the marked standard.
Covers must be marked or there must be a sufficient description in the
notification for the user to readily distinguish between the conforming
and non-conforming cover. In such cases, non-applicable standard
markings should be covered, removed, or obliterated. We realize that
this may not be practical, particularly for packagings with embossed
markings. Provided sufficient information is provided to enable the
user to identify packagings that do not meet all applicable regulatory
requirements, the appearance of standard markings is not prohibited.
Persons who offer hazardous materials for transportation must
assure that the packaging used for such transportation conforms to all
applicable regulatory requirements. In the case of specification
packagings, persons who offer hazardous materials for transportation
must assure that the packaging conforms to the applicable specification
in all respects and that it has been properly maintained and repaired.
If a packaging shows evidence of damage such that its effectiveness as
a container may be substantially reduced or if the packaging has been
subjected to conditions or operating practices that could reduce its
effectiveness, it must be inspected and repaired, in accordance with
applicable requirements, before it can be filled with a hazardous
material and offered for transportation.
In this final rule, we are reiterating that the HMR apply, as they
do currently, to persons who manufacture, mark, maintain, recondition,
repair, or test packagings or components thereof that are represented,
marked, certified, or sold as qualified for use in the transportation
of hazardous materials in commerce.
B. Pre-Transportation Functions
In the NPRM, we proposed a new term--``pre-transportation
function''--for activities performed prior to the transportation of a
hazardous material and to which the HMR apply. As defined in the NPRM,
a pre-
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transportation function is performed to prepare a hazardous material
and its accompanying shipping documentation for transportation and is
required to assure its safe transportation in commerce. Thus, pre-
transportation functions include activities such as determining a
material's hazard class, selecting a packaging, marking and labeling a
package, preparing shipping papers and emergency response information,
and selecting and affixing placards. Preparation of a hazardous
material for transportation also includes filling and closing the
packaging. As defined in the NPRM, pre-transportation functions
include: (1) Determining the hazard class of a hazardous material; (2)
selecting a hazardous materials packaging; (3) filling a hazardous
materials packaging; (4) securing a closure on a filled hazardous
materials package or container or on one containing a residue of a
hazardous material; (5) marking a package to indicate that it contains
a hazardous material; (6) labeling a package to indicate that it
contains a hazardous material; (7) preparing a hazardous materials
shipping paper; (8) providing and maintaining hazardous materials
emergency response information; (9) reviewing a hazardous materials
shipping paper to verify compliance with the HMR or international
equivalents; (10) for persons importing a hazardous material in to the
United States, providing the shipper and the forwarding agent at the
place of entry into the United States with information as to the
requirements of the HMR that apply to the shipment of the material
while in the United States; (11) certifying that a hazardous material
is in proper condition for transportation in conformance with the
requirements of the HMR; (12) blocking and bracing a hazardous
materials package in a freight container or transport vehicle; (13)
segregating a hazardous materials package in a freight container or
transport vehicle from incompatible cargo; and (14) selecting,
providing, or affixing placards for a transport vehicle to indicate
that it is carrying hazardous materials.
These functions usually occur before transportation in commerce
begins--that is, before a carrier takes possession of the hazardous
material. However, most commenters agree that pre-transportation
functions have a direct bearing on the safety of a hazardous materials
shipment in commerce and, thus, should be subject to the HMR. Further,
commenters agree that regulation of these functions must be uniformly
applied and enforced if a hazardous materials shipment is to move
smoothly, efficiently, and safely from its point of origin to its
destination. As we explained in the NPRM, Congress recognized the
importance of national uniformity in these areas by creating a specific
preemption provision in section 5125(b) of Federal hazmat law
applicable to state, local, and Indian tribe requirements on: (1) The
designation, description, and classification of hazardous material; (2)
the packing, repacking, handling, labeling, marking, and placarding of
hazardous material; (3) the preparation, execution, and use of shipping
documents related to hazardous material 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,
manufacturing, fabricating, marking, maintenance, reconditioning,
repairing, or testing of a packaging or container represented, marked,
certified, or sold as qualified for use in transporting hazardous
material.
Certain functions may be considered both pre-transportation and
transportation functions, particularly those that involve loading of
hazardous materials into packagings or onto transport vehicles. In the
NPRM, we identified loading functions as pre-transportation functions,
including: (1) Filling of a packaging (both bulk and non-bulk); (2)
securing closures on a filled hazardous materials package (both bulk
and non-bulk) or on one containing a residue of a hazardous material;
(3) blocking and bracing hazardous materials in a freight container or
transport vehicle; or (4) segregating hazardous materials packages in a
freight container or transport vehicle from incompatible cargo. The
NPRM also identified loading of packaged or containerized material onto
a transport vehicle or loading of hazardous materials into a bulk
packaging as loading incidental to movement. Commenters expressed
confusion about this aspect of the NPRM.
It was our intention in the NPRM to clarify that loading functions,
as listed above, are regulated under the HMR when performed by any
person, whether shipper or carrier. If a shipper performs a loading
function prior to the carrier's arrival at the shipper facility, that
function is a pre-transportation function and is subject to all
applicable regulatory requirements. Because carrier possession of a
hazardous material is key to our definition of ``transportation'' for
purposes of the HMR, loading functions that are performed by carrier
personnel or by shipper personnel in the presence of the carrier are
considered loading incidental to movement and are, thus, transportation
functions. Irrespective of the person performing the function or the
designation as a pre-transportation or transportation function, loading
is regulated under the HMR.
For consistency with our treatment of non-bulk packagings, in the
NPRM and this final rule we include filling and closing of a bulk
packaging as a pre-transportation function in the same way that filling
and closing a non-bulk packaging is a pre-transportation function.
Filling and closing a hazardous materials packaging, whether bulk or
non-bulk, is part of the process of preparing the hazardous material
for transportation. As stated above, any person who performs a pre-
transportation function must perform that function in accordance with
the HMR. Thus, any person who fills and closes a bulk or non-bulk
packaging must assure that the packaging is filled and closures are
secured in accordance with all applicable regulatory requirements. Such
person may be a shipper or a carrier. If a shipper performs the
function, it is a pre-transportation function. If a carrier performs
the function or if the function is performed in the presence of the
carrier, then it is a transportation function.
Similarly, blocking and bracing and segregation of packages in a
transport vehicle are functions frequently performed by carrier
personnel. However, shipper personnel may also perform such functions,
particularly when loading hazardous materials packages into freight
containers. These are regulated functions under the HMR, whether
performed by shipper or carrier personnel.
In this final rule, we modified the definitions of ``pre-
transportation function'' and ``loading incidental to movement'' to
reflect commenters'' suggestions and concerns. ``Pre-transportation
function'' is defined in this final rule as a function specified in the
HMR that is performed prior to the movement of hazardous materials in
commerce and is required to assure the safe transportation of a
hazardous material in commerce. The list of examples of pre-
transportation functions includes filling a hazardous materials
packaging, including a bulk packaging; blocking and bracing a hazardous
materials package in a freight container or transport vehicle; and
segregating a hazardous materials package in a freight container or
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transport vehicle from incompatible cargo.
``Loading incidental to movement'' is defined in this final rule to
mean loading of packaged or containerized hazardous material by carrier
personnel or in the presence of carrier personnel onto a transport
vehicle, aircraft, or vessel for the purpose of transporting it,
including blocking and bracing a hazardous materials package in a
freight container or transport vehicle, and segregating a hazardous
materials package in a freight container or transport vehicle from
incompatible cargo. For a bulk packaging, ``loading incidental to
movement'' means filling of a bulk packaging by carrier personnel or in
the presence of carrier personnel for the purpose of transporting it. A
shipper who loads hazardous materials into a cargo tank or rail tank
car is subject to HMR requirements applicable to such loading in the
same way that a carrier performing the same function is subject to
applicable HMR requirements. When a shipper performs such loading
functions in the absence of the carrier, they are pre-transportation
functions. When a carrier performs such loading functions or the
shipper performs the functions with the carrier present, the functions
meet the definition for ``loading incidental to movement.'' We also
modified the description of pre-transportation functions in Sec.
171.1(b) to indicate that such functions may be performed by shipper or
carrier personnel. It is important to note in this context that, even
where the HMR specify requirements for loading a packaging or
container, OSHA requirements may also apply. As discussed elsewhere in
this preamble, OSHA regulations may specify operational procedures for
hazardous materials loading operations. Persons who perform loading
operations generally will have to comply with both the HMR and OSHA
requirements. Similarly, EPA requirements for environmental protection
that relate to loading operations--such as requirements for secondary
containment or vapor recovery--may also apply.
One commenter suggests that the ``discussion of `pre-transportation
functions' in [the NPRM], which concludes that such activities are not
`incidental' to the movement of hazardous materials, is statutorily
nonsensical and unsupported by the words of the statute. * * * The
statute contains no authorization for ``pre-transportation functions.''
It only contains authorization for the agency to regulate the
`movement' of goods; or loading, unloading or storage `incidental' to
movement; or (in Section 5103(b)(iii)) a few named activities connected
with the manufacture and repair of packaging or containers (not at
issue here). * * * If DOT insists that the named `pre-transportation'
functions do not fall into the statutory category of `movement'
(because the carrier has not taken possession of the material * * *),
then they must fall into the statutory category of loading, unloading,
or storage `incidental' to the movement of such goods.'' (National
Industrial Transportation League) The commenter appears to have misread
Federal hazmat law. Federal hazmat law authorizes the Secretary of
Transportation to establish regulations for the safe and secure
transportation of hazardous materials in commerce. The regulations
apply to persons who: (1) Transport hazardous materials in commerce;
(2) cause hazardous materials to be transported in commerce; or (3)
manufacture, mark, maintain, recondition, repair, or test packagings or
containers (or components thereof) that are represented, marked,
certified, or sold as qualified for use in the transportation of
hazardous materials in commerce. 49 U.S.C. 5103(b)(1)(A); emphasis
added. In addition, the Secretary is authorized to regulate any aspect
of hazardous materials transportation that the Secretary considers
appropriate. 49 U.S.C. 5103(b)(1)(B); emphasis added. Federal hazmat
law thus clearly recognizes the critical safety impact of activities
performed in advance of transportation by persons who cause the
transportation of hazardous materials in commerce. Such activities need
not be considered ``loading, unloading, or storage incidental to
movement'' to be subject to regulations promulgated under the authority
of Federal hazmat law.
One commenter recommends that the definition of the term ``pre-
transportation function'' should be ``explicit, complete, and self-
contained. Although the proposed definition includes descriptions of
specific functions, the enumerated functions are not exclusive. * * * A
definitive list would go a significant way to provide clarity and
certainty in this gray area of federal jurisdiction.'' (Utility Solid
Waste Activities Group) We disagree that a definitive list is
necessary. As adopted in this final rule, the term ``pre-transportation
function'' is defined to mean a function that is required to assure the
safe transportation of a hazardous material in commerce. The list of
examples provided in the definition includes functions currently
regulated under the HMR. An all-inclusive listing of pre-transportation
functions would limit our flexibility should we determine that
additional pre-transportation functions should be regulated or discover
that we inadvertently omitted functions or activities from the
definition.
A number of commenters address the specific functions we proposed
to include in the definition for ``pre-transportation function.''
Several commenters state that blocking and bracing of packages in a
transport vehicle, segregation of materials in a transport vehicle, and
providing and affixing placards to a transport vehicle should not be
considered pre-transportation functions because ``the carrier, not the
shipper, typically performs these functions.'' (FedEx Ground Package
Systems, Inc.) We do not agree that carrier personnel usually perform
these functions. In fact, both shippers and carriers may perform these
functions. Shippers frequently use their own personnel to load trailers
or freight containers. Further, it is usually the shipper who provides
placards to the carrier when placarding is required by the HMR.
However, the commenters are correct that carriers may perform some or
all of these functions, as well. Commenters are also correct that the
definition of ``pre-transportation function'' should not be dependent
on the person performing the function. The definition is intended to
delineate functions and activities that are regulated under the HMR
because, while they generally occur before transportation in commerce
begins, they directly affect transportation safety.
As one commenter points out, ``In reality, after taking possession
of a hazardous material, carriers also perform activities that RSPA
classifies in the Proposed Rule as `pre-transportation functions.' In
any final rule, RSPA should clarify that `pre-transportation functions'
are not solely performed prior to a carrier's possession of a hazardous
material, and that carriers may perform `pre-transportation' functions
after taking possession of a hazardous material.'' (United Parcel
Service, Inc.) We agree. As we stated in the preamble to the NPRM, any
person who performs a pre-transportation function must perform that
function in accordance with HMR requirements. Such persons may include
shippers, carriers, freight forwarders, non-vessel operating common
carriers, freight brokers, and other entities. In this final rule, we
modified the definition of ``pre-transportation function'' to clarify
that the HMR requirements apply to any person who performs or is
responsible
[[Page 61911]]
for performing a pre-transportation function.
Several commenters address the statement in the preamble to the
NPRM, reiterated above, that any person who performs a pre-
transportation function must perform that function in accordance with
HMR requirements. In this context, the NPRM noted that the HMR apply to
persons who offer hazardous materials for transportation in commerce or
cause hazardous materials to be transported in commerce. As examples of
persons who cause hazardous materials to be transported in commerce,
the NPRM listed freight forwarders, non-vessel operating common
carriers, freight brokers, and other entities that perform pre-
transportation functions. One commenter states, ``Since in more than
70% of `third party shipments' the third party has no physical
involvement with the shipments, making them liable on these shipments
for compliance with hazmat regulations, makes them a guarantor of
compliance, when they have no ability to effectuate compliance.''
(Gallagher and Howarth, P.C.) This commenter is concerned that this
detail in the NPRM creates an uninsurable liability for third parties
who ``simply arranged the transportation of the shipment.''
Another commenter ``believes that the proposed regulation of `pre-
transportation functions' as drafted would be unfair, and possibly
unenforceable as well. * * * [B]rokers, freight forwarders and [non-
vessel operating common carriers] seldom deal with the freight
physically at the dock, and they must rely heavily on information
received from shippers as to the contents. Intermediaries have the
responsibility to select the carrier, and they may issue a house bill
of lading or freight receipt to the shipper, but they do not ordinarily
take responsibility for preparing the underlying carrier's shipment
documentation, or for making the physical arrangements to classify,
placard, brace and pack the cargo. As long as either the shipper or the
underlying carrier is performing those functions, it would be unfair
and unworkable for DOT to hold the intermediary liable for any errors
made by parties over which they have no operational control.''
(Transportation Intermediaries Association)
We agree. We did not mean to suggest that third-party
intermediaries would be held responsible for errors made by the
shippers and carriers with whom they work unless the third-party knew
or should have known about the error. A third-party intermediary who
prepares a shipping paper for a hazardous materials shipment and signs
the shipper certification is, in effect, assuming responsibility for
compliance with the regulations for all aspects of that shipment about
which he knew or should have known. For example, if a freight forwarder
or consolidator prepares a new shipping paper for a consolidated load
that includes hazardous materials, the shipping paper must conform to
all applicable HMR requirements. We realize that the shipping paper
will be based on information provided by the original shipper. A third-
party intermediary would not be held responsible for errors made by the
shipper in its initial shipping documentation, such as incorrect
classification of a material. However, using the information available,
a third-party intermediary is responsible for completing a shipping
paper in accordance with HMR requirements. As another example, a third-
party intermediary may handle a package that contains a hazardous
material. If the shipping documentation prepared by the original
shipper indicates that the material is a flammable liquid, but the
package label indicates a CORROSIVE hazard, the third-party
intermediary must resolve the discrepancy before the package may be
transported. In such a situation, the third-party intermediary knew or
should have known that the shipment he was handling did not conform to
applicable regulatory requirements. Further, as is currently the case,
a third-party intermediary who performs a pre-transportation function
must perform that function in conformance with the HMR. For example, if
a third-party intermediary consolidates a number of packages into a
freight container, he must assure that the packages are loaded into the
freight container as required by applicable regulations, including
those related to blocking and bracing of cargo or segregation of
incompatible materials.
In the NPRM, we proposed to define ``offer a hazardous material''
to mean the performance of a pre-transportation function under the HMR.
In this way, we intended to clarify that, consistent with Federal
hazmat law, the HMR apply to functions performed to prepare hazardous
materials for transportation in commerce as well as to the actual
transportation of hazardous materials in commerce. In addition, we
proposed to define ``pre-transportation function'' to mean tendering a
hazardous material to a carrier for transportation in commerce, causing
a hazardous material to be transported in commerce, or performing a
function in the HMR that is required to assure the safe transportation
of a hazardous material in commerce. Further, in Sec. 171.2, we
proposed that no person may offer or accept a hazardous material for
transportation unless the hazardous material is properly classed,
described, packaged, marked labeled, and in condition for shipment as
required under the HMR.
Several commenters note that under our proposed definitions, a
shipper would offer a hazardous material when performing pre-
transportation functions that Sec. 171.2 requires the shipper to
perform prior to offering a hazardous material for transportation.
``RSPA could not have intended such an anomalous and circular result,
and accordingly should either revise or withdraw its proposed
definition of `Offer a hazardous material.' '' (United Parcel Service,
Inc.) Commenters are correct. We did not intend such an anomalous and
circular result. In this final rule, we revised the definition of
``pre-transportation function'' to mean a function specified in the HMR
that is required to ensure the safe transportation of a hazardous
material in commerce. We agree with commenters that the proposed
definition for ``offer a hazardous material'' is confusing and
difficult to apply. Therefore, in this final rule we do not include a
definition for ``offer a hazardous material.''
Several commenters express confusion as to precisely when a person
performing pre-transportation functions is responsible for
demonstrating compliance with the HMR's pre-transportation
requirements. ``Most [facilities at which hazardous materials are
tendered for shipment] have multilevel check systems designed to ensure
that the freight conforms to applicable HMR requirements. The
[facility's hazmat employees] can make final changes to documentation,
labels, etc., up until the time that the product is loaded and shipping
documents are signed.'' (International Warehouse Logistics Association)
We agree with commenters that this point needs clarification. However,
the point at which non-compliance with a pre-transportation function
becomes enforceable will depend on the facts applicable to a specific
instance. As a general rule, we would expect an offeror to be able to
demonstrate compliance with all applicable pre-transportation
requirements at the time the hazardous material is staged for loading
and the consignor or his agent signs the shipping paper. The offeror's
signature (or that of his agent as permitted by Sec. 172.205(d)(1)) on
the shipping paper is its certification that the hazardous
[[Page 61912]]
material is prepared for transportation in accordance with HMR
requirements.
Even in the absence of a signed shipping paper, a shipper may be
responsible for assuring compliance with specific pre-transportation
requirements if other factors indicate that a particular pre-
transportation activity has been completed. For example, if a shipper
has loaded a trailer with improperly packaged hazardous materials and
requested that a carrier pick it up for transport, it is fairly clear
that the shipper does not intend to make further changes to the
packages, even if a shipping paper has not yet been executed.
We will continue to exercise our statutory authority to inspect for
compliance with the HMR requirements applicable to pre-transportation
functions. We will also continue to exercise our authority to take
appropriate enforcement action when we discover that a pre-
transportation function has been performed in a manner that does not
comply with the HMR, even if transportation of the hazardous material
in commerce has not yet begun (i.e., the carrier has not yet taken
possession of the material) or has not been performed at all (i.e.,
undeclared shipments offered for transportation). This approach is
consistent with our authority under Sec. 5103 of Federal hazmat law to
regulate activities that affect the safe and secure transportation of
hazardous materials in commerce. Also, as stated above, this approach
is consistent with Congress' intent that the HMR requirements
applicable to the activities we propose to define as ``pre-
transportation functions'' be applied and enforced in a manner that
promotes uniformity in those areas.
Several commenters note that the NPRM included two inconsistent
descriptions of pre-transportation functions. In proposed Sec. 171.2,
we listed 14 activities; in proposed Sec. 171.8, we inadvertently
omitted one listed activity. In this final rule, we corrected the
regulatory text to make the two sections consistent.
The NPRM proposed to include as a ``pre-transportation function''
the providing of timely and complete information as to the HMR
requirements that will apply to the transportation of the material
within the United States to the shipper and the forwarding agent at the
place of entry into the United States. Two commenters suggest a
revision to remove the phrase ``and the forwarding agent at the place
of entry into the United States'' for consistency with applicable
Customs requirements. ``The shipper, to be in compliance with
applicable international and United States regulations, is required to
provide the requisite hazmat information to the carrier and/or
forwarding agents prior to the introduction of the material into
international transportation and commerce. Classification, product
description (selection of shipping name), package selection, testing,
marking, labeling and creation of applicable shipping papers should all
occur before the material reaches the `place of entry into the United
States.' Further, communications with the involved freight forwarder
may or may not involve the importer. The party responsible for
obtaining the transportation generally has this relationship. Removal
of this phrase from the regulation will continue to meet the safety and
communications requirements intended while providing the flexibility of
clearance now permitted under Customs rules.'' (E.I. DuPont de Nemours
and Company) We agree and have made the suggested revision in this
final rule.
In this final rule, we are adopting the definition for ``pre-
transportation function'' as proposed in the NPRM, with the revisions
suggested by commenters and discussed above.
C. Transportation That Is ``in Commerce''
In the NPRM, we proposed several definitions to clarify the
applicability of the HMR to transportation functions and the persons
who perform them. Federal hazmat law requires the Secretary of
Transportation to establish regulations for the safe and secure
transportation of hazardous materials in intrastate, interstate, and
foreign commerce. As noted above, the law defines ``transportation''
and ``commerce'' separately. Further, Federal hazmat law authorizes the
Secretary of Transportation to apply these regulations to persons who
transport hazardous materials in commerce or cause hazardous materials
to be transported in commerce.
The NPRM proposed to include in the HMR a section specifically
stating that noncommercial transportation of hazardous materials is not
subject to the HMR. Consistent with numerous letters of interpretation
issued over the past several decades (see NPRM discussion at 66 FR
32431-32432), the NPRM proposal included a list of activities that are
not part of transportation of a hazardous material in commerce and,
therefore, not subject to regulation under the HMR. The list included:
(1) Transportation by private individuals in private motor vehicles for
personal use; (2) transportation by government employees for government
purposes; and (3) rail and motor vehicle movements of hazardous
material occurring solely within a contiguous facility boundary where
public access is restricted.
Commenters generally agree that transportation of hazardous
materials by private individuals in private motor vehicles for personal
use is not transportation in commerce and is thus outside the scope of
authority delineated in Federal hazmat law. Similarly, most commenters
agree that government entities transporting hazardous materials for
non-commercial purposes are not ``persons'' subject to Federal hazmat
law. (See 49 U.S.C. 5102(9).)
One commenter disagrees that transportation of hazardous materials
by government entities for government purposes should be excluded from
regulation under the HMR. ``[We do] not see why hazardous materials
being moved `* * * in motor vehicles, aircraft or vessels operated by
federal, state or local government employees * * *' pose any less of a
threat to the people of the United States than those of private
operators.'' (E.I. DuPont de Nemours and Company) Our authority to
regulate the transportation of hazardous materials is restricted by
Federal hazmat law. As stated above, Federal hazmat law specifically
excludes government entities from regulation when moving hazardous
materials for a non-commercial purpose. Thus, application of the HMR to
such movements is outside the scope of the Secretary's regulatory
authority under the law.
One commenter expresses confusion about movements of hazardous
materials that occur entirely within a contiguous facility boundary
where public access is restricted. The commenter formulates the
following scenario: ``Once the shipper personnel have loaded the
hazardous material into the cargo tank, it is then returned to the
central staging area [within the contiguous facility boundary]. If the
carrier moves the loaded cargo tank from the loading point back to the
central staging area then the HMRs would apply; however, if [company]
personnel move the loaded cargo tank from the loading area back to the
central staging area then the HMR would not apply.'' (Dow) The
commenter is not correct. As described in the NPRM (66 FR 32431) and
adopted in this final rule, movement of hazardous materials that occurs
entirely within a contiguous facility boundary where public access is
restricted is not commercial transportation and therefore is not
[[Page 61913]]
subject to HMR requirements, even if the movement is conducted by a
common or contract carrier. Thus, for example, movement of hazardous
materials between Warehouse A and Warehouse B that occurs solely within
the contiguous boundaries of a facility is not movement in commerce;
shipping paper, UN specification packaging, labeling, marking, and
other HMR requirements do not apply to these types of movements.
As we discussed in the preamble to the NPRM (66 FR 32432), we have
indicated in letters of interpretation that use of a red traffic signal
or road closure to deny public access to a public highway utilized for
movements of hazardous materials between areas of the same facility
makes the portion of the highway to which access is restricted private.
Movements of hazardous materials in such circumstances are not subject
to the HMR. The same conditions apply to rail transportation of
hazardous materials that utilizes private railroad tracks that cross a
public highway. In a letter of interpretation, we have said that the
HMR apply to transportation on private tracks that are not part of the
general system of rail transportation if the private tracks cross a
public highway and access to the tracks is not controlled or restricted
(May 4, 1998 RSPA letter to Amoco Chemicals). However, if warning
lights or a gate restricts access to the tracks during the hazardous
materials movement, then the HMR do not apply.
Another commenter requests clarification of the status under the
HMR of emergency vehicles, such as aircraft rescue and firefighting
vehicles, that are owned by a private company and respond to
emergencies on company property. The commenter notes that, although
these emergency vehicles generally operate on company property, they
also have official county identification numbers as emergency vehicles
and may be dispatched to respond to incidents in the community in the
same way that a public agency would respond.
Emergency vehicles owned by a company are not regulated under the
HMR when they operate solely within the contiguous boundaries of a
facility to respond to emergencies at the facility. Further, such
emergency vehicles are not subject to HMR requirements when they leave
company property to respond to emergencies because they are acting
under the authority of the local government, which treats them as a
government-operated vehicle for community emergency response.
Similarly, because such vehicles operate under local government
authority, they are not subject to HMR requirements when they leave
company property for maintenance, offsite training, or other purposes.
The NPRM included transportation activities of state-chartered and
-funded universities as noncommercial transportation, unless the
university transports hazardous materials in furtherance of a
commercial enterprise. One commenter suggests that ``[t]he definition
of ``in commerce'' should be expanded to include state entities which
are engaged in private enterprises of any percentage. If a state entity
chooses to allow private enterprises to use its facilities and to co-
mingle their hazardous [materials] with that of the state entity, the
state entity has taken itself out of the `in commerce' exception.''
(The Frickey Law Firm) We disagree. A state entity need not treat all
transportation activities as commercial transportation merely because
some of its transportation of hazardous materials is in furtherance of
a commercial enterprise.
This commenter also asks for clarification concerning whether the
use of contractor personnel by a state-chartered and -funded university
to perform functions regulated under the HMR triggers coverage by the
HMR. ``[T]he use of outside contractors by a state entity * * * should
be clearly defined as falling within the HMR.'' (The Frickey Law Firm)
We agree. The NPRM (66 FR 32431) and this final rule specifically state
that the HMR apply to contractor personnel who perform regulated
activities related to: (1) Packaging manufacturing, maintenance, and
requalification; (2) pre-transportation functions; and (3)
transportation functions (see Sec. 171.1(a), (b), and (c)).
One commenter requests clarification of the statements in the NRPM
on the applicability of the HMR to movements of hazardous materials
within an airport facility. ``Proposed Sec. 171.1(d)(4) appears to
imply that movement [of hazardous materials] by or aboard ramp vehicles
[at an airport]--either containerized cargo on dollies or
uncontainerized packages on carts, or ramp vehicles making ramp
transfers of packages--could require the issuance of shipping papers to
those on-airport drivers. At the time that hazardous materials are
staged for flight, they are fully prepared for pickup prior to air
transportation and delivery subsequent to air transportation. All
hazard communications and notifications are in place for ground
handlers and flight crew. Any requirement for additional shipping
papers for the on-airport drivers of these incidental ramp vehicles
would impose an unjustified cost and obstructive delay of airport
operations.'' (Air Transport Association) This commenter suggests that
the NPRM proposed to ``abandon'' our past policy of excluding intra-
facility movements of hazardous materials from regulation under the HMR
because the language of Sec. 171.1(d)(4) included the phrase ``other
than at a transportation facility'' when describing movements of
hazardous materials within a contiguous facility boundary.
The NPRM (66 FR 32431) cited letters of interpretation that
clarified that the HMR do not apply to intra-facility movements of
hazardous materials that take place entirely on private property or
where public access is denied or restricted. Such movements are not
``in commerce'' and, therefore, are not subject to regulation under the
HMR. At an airport, such movements include transfers of hazardous
materials used for aircraft maintenance and refueling operations from
one location to another within the airport's boundaries.
As the NPRM noted, baggage or packages offered to airlines for
transportation are subject to HMR requirements during that portion of
transportation that takes place in the airport and thereafter. Thus,
for example, the prohibitions in the HMR applicable to hazardous
materials that may not be carried in baggage on board an aircraft apply
to baggage that is brought to an airport and transported through the
airport to an airplane. Similarly, requirements for hazardous materials
offered as cargo to an airline apply when the airline accepts the
package for transportation and during its movement at the airport prior
to loading onto an airplane. This statement should not be interpreted
to mean that an airline must complete a separate shipping paper each
time cargo is transferred through the airport to or from an airplane.
Rather, our intention is to make clear that requirements for
appropriate packaging, marking, labeling, emergency response
information, shipping documentation, and the like continue to apply
while the cargo is moving on airport property. The NPRM did not propose
an abandonment of our long-standing interpretation of the meaning of
``transportation that is in commerce,'' Rather, the NPRM, and this
final rule, reiterate this long-standing interpretation and make it
explicit in the HMR. We agree that the phrase ``other than at a
transportation facility'' as used in the NPRM is misleading and have
removed it in this final rule.
Note that for rail transportation, certain intra-facility movements
may be
[[Page 61914]]
subject to HMR requirements. For example, movements within railyards to
assemble rail cars containing hazardous materials into trains are
subject to applicable HMR requirements. In addition, facilities at
which rail cars containing hazardous materials are received, stored, or
handled during transportation must maintain emergency response
information applicable to the hazardous materials in accordance with
Sec. 172.602 of the HMR.
The NPRM proposed to except from coverage under the HMR ``any
matter subject to the postal laws and regulations.'' One commener
opposes this exception. ``RSPA does not provide a reason for this
exemption or indicate what precautions are in place or are being
implemented to justify this position. The fact that all items
transported by the U.S. Postal Service (USPS) will enter the
transportation system at some point and will be transported by
commercial carriers should be of utmost interest and concern to RSPA.''
(National Transportation Safety Board) The exception for matter covered
by postal laws and regulations is based on Federal hazmat law, which
explicitly excludes the U.S. Postal Service from the definition of
``persons'' to whom Federal hazmat law and the regulations issued
thereunder apply. 49 U.S.C. 5102. The statute also explicitly excludes
from its application ``any matter that is subject to the postal laws
and regulations of the United States under this chapter or title 18 or
39.'' 49 U.S.C. 5126.
In the NPRM, we proposed to define ``commerce'' to mean trade or
transportation in the jurisdiction of the United States between a place
in a state and a place outside of the state; or that affects trade or
transportation between a place in a state and a place outside of the
state. Several commenters disagree with this proposed definition,
noting that it appears to exclude intrastate commerce. ``Congressional
instructions to the Secretary * * * indicate that the Secretary `* * *
shall issue regulations for the safe transport of hazardous materials
in intrastate, interstate, and foreign commerce.' [49 U.S.C.
5103(b)(1)] The definition of the term `commerce' * * * should reflect
this instruction and be enlarged to include hazardous materials
movements within a state as well as those in interstate commerce. Such
a change would reflect current practice and is * * * consistent with
current understanding * * *'' (E.I. Dupont de Nemours and Company) We
agree. The definition proposed in the NPRM is consistent with the
definition of ``commerce'' in Sec. Sec. 5102 and 5103 of Federal
hazmat law. However, the language in Sec. 5103(b) is more explicit
concerning the Secretary's authority to regulate intrastate commerce.
In this final rule, we revised the definition of ``commerce'' as
suggested by commenters to clearly include intrastate transportation as
specified in Sec. 5103 of Federal hazmat law.
D. Transportation Functions Subject to the HMR
The NPRM proposed that, for purposes of applicability of the HMR,
transportation in commerce begins when a carrier takes physical
possession of a hazardous material for the purpose of transporting it
and continues until the package containing the hazardous material is
delivered to the destination indicated on the shipping documentation
under which the hazardous material is moving. This proposal was based
on our conclusion that the key word in the definition of
``transportation'' in Federal hazmat law is ``movement.'' We proposed
to define ``movement'' to mean ``the physical transfer of a hazardous
material from one geographic location to another by rail car, aircraft,
motor vehicle, or vessel.'' Because a carrier ``moves'' a hazardous
material, transportation in commerce necessarily involves activities
performed by a carrier in connection with the movement of a hazardous
material. Thus, under the NPRM proposal, all loading, unloading, and
storage functions performed by a carrier in the course of transporting
a hazardous material in commerce would be subject to the HMR.
A number of commenters support this demarcation of the beginning
and end points of transportation in commerce. ``We believe that the
definition of `in transportation' must be a simple one which is applied
uniformly to all types of containers under all types of circumstances.
Transportation in commerce should begin when a carrier accepts and
exercises control over a hazardous material for purposes of
transporting it and ends when the carrier relinquishes control of the
shipment.'' (Monsanto Company; see also Arkansas Department of
Environmental Quality, Contra Costa Health Services, Environmental
Technology Council, International Brotherhood of Teamsters,
International Warehouse Logistics Association, County of Los Angeles
Fire Department, and National Propane Gas Association) However, many
commenters disagree with the NPRM approach. Most of these commenters
state that a definition of ``transportation in commerce'' should
include all loading and unloading operations involving hazardous
materials and suggest broadening the proposed definition accordingly.
In making the case for a broader definition for ``transportation in
commerce,'' several commenters suggest that we have misread Federal
hazmat law. ``[Federal hazmat law] defines transportation as the
`movement of property and loading, unloading, or storage incidental to
the movement.' 49 U.S.C. 5102(12). The grammatical construction of the
definition makes clear that the term `storage' is modified by the
phrase `incidental to the movement,' while the terms `loading' and
`unloading' stand by themselves. As such, RSPA has jurisdiction over
all loading and unloading of hazardous materials that are transported,
while RSPA's jurisdiction over storage activities is limited to those
storage activities that are incidental to the movement/transportation
of the materials.'' (American Trucking Associations) We disagree. If
Congress had intended DOT's statutory authority to include all loading
and unloading of hazardous materials that are transported, Federal
hazmat law would have defined ``transportation'' to mean ``the
movement, loading, and unloading of property, and storage incidental to
the movement.'' There is no legislative history on this point. However,
it is clear that Congress intended the phrase ``incidental to the
movement'' to modify the terms ``loading,'' ``unloading,'' and
``storage.'' This language and our interpretation of it are
longstanding, dating back to the Hazardous Materials Transportation Act
of 1975. Congress has had a number of opportunities to change the
language and our interpretation in subsequent authorization
legislation, but has not elected to do so. The fact that Congress
continued to incorporate the language at issue in the Hazardous
Materials Uniform Safety Act of 1990 and the recodification of Federal
hazmat law in 1994 indicates that our position regarding this language
is correct.
Many commenters suggest a broader definition for ``transportation
in commerce.'' These commenters say that `` `[t]ransportation in
commerce' should begin when a hazardous material first begins to flow
into a bulk package or when a non-bulk package is loaded onto a
transport conveyance (truck trailer, railcar, ocean or intermodal
container) and continue until that material is removed from the bulk
package or the non-bulk packages are removed from the transportation
conveyance. * * * [B]ulk packages should remain in `transportation in
commerce' and subject to the HMR so long as any
[[Page 61915]]
residue of hazardous material remains.'' (American Chemistry Council)
Other commenters suggest that DOT or UN specification bulk packagings
should be regarded as ``instruments of commerce'' and should be ``under
DOT's jurisdiction at all times and in all places.'' (Dangerous Goods
Advisory Council)
We disagree. As we stated in the NPRM, in clarifying the
applicability of the HMR, we must consider how such clarification will
affect other Federal and non-Federal programs that govern hazardous
materials operations at fixed facilities. We must, therefore, look to
Congressional and agency intent as expressed in the body of statutes
and regulations exercising Federal jurisdiction over hazardous
materials where transportation and non-transportation activities
intersect. The Occupational Safety and Health Act (OSH Act), which
provides the statutory authority for regulatory programs administered
by OSHA, the authorizing statutes for the regulatory programs
administered by EPA, and the Organized Crime Control Act of 1970, which
provides the statutory basis for ATF programs applicable to the safety
and security of explosives, express different statutory purposes. We
must interpret and implement Federal hazmat law in a way that fulfils
its statutory purpose and is consistent with the statutory purposes of
the OSH Act, the Organized Crime Control Act, and EPA's statutes.
A broad definition of ``transportation in commerce'' that
encompasses all activities that occur beginning when a bulk packaging
is filled and continuing until no residue of hazardous material remains
or that considers DOT or UN specification bulk packagings to be
``instruments of commerce'' would result in DOT regulation of long-term
storage operations at both shipper and consignee facilities. This would
have the effect of limiting and, perhaps, precluding regulation of
hazardous materials stored at fixed facilities by other Federal and
non-Federal government agencies. Federal and non-Federal programs for
worker and environmental protection and the safety and security of
explosives, established under the OSH Act, EPA's authorizing statutes,
and the Organized Crime Control Act, could be adversely affected. Such
an outcome clearly would be contrary to the intent of Congress as
expressed in these laws and Federal hazmat law.
Commenters also suggest that broadening the proposed definition of
``transportation in commerce'' in the NPRM supports one of the primary
purposes of Federal hazmat law--to promote nationally uniform
regulations applicable to hazardous materials transportation. ``It has
long been recognized that safety is enhanced dramatically when there
are national, uniform standards governing the conduct at issue.
Management efforts to track, implement, and report on different local,
state, and Federal regulations only bring confusion and therefore,
decrease the level of safety to our society and the environment.''
(National Paint and Paint Coatings Association, Inc.) Many commenters
suggest that the proposed definition in the NPRM, which keys
transportation in commerce to carrier control and possession of a
hazardous material, will make it ``unmanageable to comply with the
separate requirements of various Federal, state, and local authorities.
This will invite state and local government to create different and
perhaps conflicting rules regarding the loading and unloading of
hazardous materials destined for or emerging from transportation and
performed by persons other than the carrier's driver. Furthermore, this
proposal would provide for local and state jurisdictions to set forth
hazardous materials regulations without guidance or oversight by DOT.''
(American Chemistry Council) Another commenter suggests that ``if [a
company] has multiple facilities within the United States then arguably
each facility may be subject to differing state and local laws and
regulations, thus precluding [the company] from implementing a
consistent, best practices safety program. Uniformity is essential in
the handling and transport of hazardous materials.'' (Dow)
Commenters misunderstand the reason for nationally uniform
regulations applicable to the transportation of hazardous materials. As
commenters note, nationally uniform regulations facilitate
transportation by eliminating the necessity to comply with conflicting
sets of regulations as hazardous materials move across jurisdictional
boundaries. Further, as commenters also agree, nationally uniform
regulations enhance transportation safety by reducing confusion and
simplifying the task of compliance. ``Uniformity, clarity and
consistency are essential when addressing the movement, loading,
unloading, and storage of hazardous materials in intrastate and
interstate commerce.'' (Dow) We agree. However, there is no
transportation safety rationale for nationally uniform regulations
applicable to fixed facility operations other than activities defined
in this final rule as pre-transportation or transportation functions.
The employees at a fixed facility do not cross jurisdictional lines and
so are not faced with the possibility of complying with different sets
of possibly conflicting regulatory requirements. Further, Congress
recognized that non-transportation operations involving hazardous
materials at fixed facilities need not be governed by one set of
nationally uniform regulations in both the OSH Act and the various
statutes that authorize EPA's programs by explicitly permitting non-
Federal entities to impose requirements for worker or environmental
protection at fixed facilities that are more stringent than Federal
requirements. As we stated in the NPRM, Congress expressly recognized
that state and local governments have a legitimate role in the
regulation of hazardous materials at fixed facilities, and this role
should be accommodated to the extent possible within the context of a
nationally uniform hazardous materials transportation safety regulatory
program. Our definitions for pre-transportation and transportation
functions, as proposed in the NPRM and adopted with modifications in
this final rule, provide a set of nationally uniform regulations
governing functions that affect the safe transportation of hazardous
materials in commerce and governing the actual transportation in
commerce of hazardous materials. At the same time, the definitions
adopted in this final rule permit other Federal agencies, states, and
local governments to exercise their legitimate regulatory roles at
fixed facilities.
A number of commenters assert that, in the NPRM, RSPA proposed to
``withdraw'' from the regulation of loading, unloading, and storage
incidental to movement in a way that is inconsistent with our
Congressional mandate. `` * * * Congress has directed DOT to take a
broad approach to the regulation of hazardous materials transportation.
RSPA's proposal to adopt a narrow definition of `transportation in
commerce' and withdraw from its regulation of loading, unloading, and,
to a significant extent, incidental storage is inconsistent with its
Congressional mandate.'' (Association of American Railroads) A careful
reading of the NPRM indicates that this is not, in fact, the case.
As we stated in the NPRM, the regulatory clarifications we proposed
are based on long-standing administrative decisions and regulatory
interpretations, which were cited in the NPRM (66 FR 32432-32436) and
[[Page 61916]]
included in the docket. Under the NPRM and this final rule, the HMR
apply to the loading of packaged or containerized hazardous materials
into transport vehicles or freight containers and the filling of bulk
packagings, such as cargo tanks and rail tank cars, in the same manner
that the HMR currently apply to such operations. Similarly, under the
NPRM and this final rule, the HMR apply to incidental storage of
hazardous materials in the same manner as currently. The only changes
proposed in the NPRM to the current applicability of the HMR involve
certain rail storage and unloading operations. Rail issues are
discussed in more detail below.
Loading incidental to movement. The NPRM proposed that, for
purposes of applicability of the HMR, loading incidental to movement is
loading associated with such movement. Thus, the NPRM proposed to
define ``loading incidental to movement'' to mean loading of a
hazardous material onto a transport vehicle, aircraft, or vessel or
into a bulk packaging for purposes of transporting it when performed by
a person employed by or under contract to a for-hire carrier. For
private carriers, the NPRM proposed to define ``loading incidental to
movement'' to mean loading of a hazardous material onto a transport
vehicle, aircraft, or vessel or into a bulk packaging for purposes of
transporting it when performed by the driver of the motor vehicle into
which the hazardous material is being loaded immediately prior to
movement in commerce of the hazardous material.
Many commenters express concern about the proposed definition for
``loading incidental to movement.'' Much of this concern relates to the
way that the NPRM attempted to divide loading activities into pre-
transportation and transportation activities. Thus, one commenter
suggests that ``[n]o other federal agency has similar rules governing
the mechanics of loading * * * hazardous materials * * * For example,
DOT regulates the blocking and bracing of packages in vehicles. If DOT
walks away from the function of loading * * * by non-carrier personnel,
no other federal agency has rules to fill the void on a safety concern
so fundamental as blocking and bracing freight.'' (Institute of Makers
of Explosives) As discussed under ``Pre-Transportation Functions''
above, blocking and bracing and segregation of hazardous materials in a
transport vehicle or freight container are and will continue to be
regulated functions under the HMR, irrespective of the entity that
performs the function. This final rule modifies the proposed
definitions for ``pre-transportation functions'' and ``loading
incidental to movement'' to clarify this point.
Commenters are also concerned that, under the NPRM proposal for
defining ``loading incidental to movement,'' it appeared that the HMR
would not apply to the loading of bulk packagings for transportation in
commerce. Commenters appear to have misunderstood this aspect of the
NPRM. Loading or, more accurately, filling of a bulk packaging, such as
a cargo tank or rail tank car, for purposes of transporting it is now
and will continue to be a regulated function under the HMR whether the
function is performed by shipper or carrier personnel. To eliminate
confusion on this point, this final rule clarifies that filling of a
bulk packaging and securing its closures is a pre-transportation
function subject to HMR requirements. The final rule also clarifies
that for a bulk packaging, ``loading incidental to movement'' means
filling of and securing the closures on a bulk packaging by carrier
personnel or in the presence of carrier personnel for the purpose of
transporting it. Thus, filling, or loading, of a bulk packaging for the
purpose of transporting it is regulated under the HMR as a pre-
transportation function if a shipper performs such filling or as a
transportation function if a carrier performs such filling.
Irrespective of the entity performing the function, filling, or
loading, of a bulk packaging is regulated under the HMR.
It is important to note, however, that, even where the HMR specify
requirements for loading a packaging or container, OSHA requirements
may also apply. For example, the HMR specify filling limits for most
hazmat packagings, including bulk packagings. Further, the HMR specify
valving, piping, hose, and similar requirements as part of the
specification packaging requirements for authorized transportation of
hazardous materials. OSHA regulations cover operational procedures for
loading operations with which a facility must comply and include
requirements for facility equipment used for such loading operations.
Persons who perform loading operations generally will have to comply
with both the HMR and OSHA requirements. Similarly, EPA requirements
for environmental protection that relate to loading operations--such as
requirements for secondary containment or vapor recovery--may also
apply.
Unloading incidental to movement. The NPRM proposed that, for
purposes of applicability of the HMR, unloading incidental to movement
is unloading associated with such movement. Thus, the NPRM proposed to
define ``unloading incidental to movement'' to mean unloading of a
hazardous material from a transport vehicle, aircraft, or vessel or
from a bulk packaging when performed by a person employed by or under
contract to a for-hire carrier. For private carriers, the NPRM proposed
to define ``unloading incidental to movement'' to mean unloading
performed by the driver of the motor vehicle from which the hazardous
material is being unloaded immediately after movement in commerce is
completed. Under the proposed definition, hazardous materials unloading
operations performed by consignees would not be subject to HMR
requirements because they occur after movement of the hazardous
materials in commerce is completed.
The preamble to the NPRM noted that, for the most part, our
proposed definition of unloading incidental to movement is consistent
with current HMR requirements, letters of interpretation, and
administrative decisions we have issued to clarify the applicability of
the HMR to unloading operations (66 FR 32433). As the preamble
discussed, the proposals in the NPRM applicable to rail tank car
unloading operations represent a change from current practice and
interpretation. Currently, the tank car unloading requirements in Part
174 of the HMR apply to all unloading operations. However, we suggested
in the preamble to the NPRM that rail tank car unloading operations
performed by consignee personnel generally should be considered part of
a manufacturing process rather than part of transportation.
Most commenters disagree with our proposed definition. ``This is a
significant change from current policy. No other federal agency has
similar rules covering this issue and cannot fill this void.''
(National Association of Chemical Distributors) Other commenters assert
that the NPRM represents an effort by RSPA to relinquish its regulatory
authority. ``The Department of Transportation's proposal to relinquish
its regulatory authority over `post-transportation' functions such as
storage during movement and unloading yet retaining its regulatory
authority over `pre-transportation' functions and `transportation in
commerce' functions will jeopardize transportation safety as well as
adversely impact the cost of hazardous materials transportation.'' (Air
Products and Chemicals, Inc.) Other commenters express concern about
the ``transfer'' of regulatory authority from DOT to OSHA or EPA.
``This proposed rule (HM-223)
[[Page 61917]]
transfers some of the oversight responsibilities concerning the * * *
unloading * * * of hazardous materials from the U.S. Department of
Transportation * * * to other federal agencies, such as the
Environmental Protection Agency * * * and the Occupational Safety and
Health Administration * * *. [We] are concerned that this transfer of
authority and jurisdiction * * * could result in regulatory gaps and
confusion about which agency is responsible for enforcing these
regulations. Also in question is the ability of other federal agencies
to assume additional oversight responsibilities and whether these
agencies would have the personnel, resources, or expertise to
effectively monitor compliance with regulations * * *'' (American Road
and Transportation Builders Association) Similarly, ``[We are]
specifically concerned about the lack of expertise that personnel from
[other Federal agencies] have in rail tank car design, cargo tank
design, and the operational parameters associated with bulk container *
* * unloading. [We are] not convinced that, if RSPA relinquishes its
regulatory authority over hazardous materials * * * unloading
operations, other federal and state agencies will be able to
effectively exercise the necessary safety oversight of these very
specific areas of transportation.'' (National Transportation Safety
Board)
The NPRM proposals concerning the definition of ``unloading
incidental to movement'' do not represent an effort on our part to
relinquish or abdicate our authority or transfer our authority to other
Federal agencies. As we stated in the NPRM, generally our proposals
concerning unloading incidental to movement are consistent with current
HMR requirements, letters of interpretation and administrative
decisions we have issued to clarify the applicability of the HMR to
unloading operations from transport vehicles and bulk packagings other
than rail tank cars. Further, except for rail tank car unloading, we
have never promulgated regulations applicable to ``post transportation
functions'' at consignee facilities. The HMR are promulgated under the
mandate in 49 U.S.C. 5103(b) that the Secretary ``prescribe regulations
for the safe transportation of hazardous material in intrastate,
interstate, and foreign commerce.'' (Emphasis added.) Section
5103(b)(1)(B) provides that the HMR ``shall govern safety aspects of
the transportation of hazardous material the Secretary considers
appropriate.'' (Emphasis added.)
Congress recognized that post-transportation activities should be
regulated by Federal agencies, such as OSHA, EPA, and ATF, that
generally have authority to regulate non-transportation activities at
fixed facilities. For example, Congress directed that OSHA, and not
DOT, issue regulations to require labels and placards affixed to
hazardous materials packages in accordance with the HMR to remain on
the packages after delivery until they are emptied. (See section 29,
Public law 101-615, 1990.)
Commenters are correct that the NPRM proposals applicable to
unloading of rail tank cars are a change from current practice and
interpretation. As stated in the NPRM, the proposals applicable to rail
tank car unloading operations stem from changes in the way rail tank
cars are used in manufacturing processes and are consistent with RSPA's
current regulation of cargo tank unloading operations.
Despite commenters' opposition, we continue to believe that the
unloading of a rail tank car directly into a manufacturing process is
more properly considered part of a manufacturing operation, not a
transportation operation. The rail tank car has been delivered to the
consignee by the rail carrier; in many cases, the rail tank car sits
for several days, weeks, or even months prior to commencement of the
unloading operation. Commenters assert that, because the vessel being
unloaded is a DOT or UN specification packaging, all operations related
to that vessel should be subject to regulation under the HMR. This
position is difficult to support. DOT or UN specification packagings
are used for many purposes besides transportation. For example,
firefighters' equipment includes DOT specification cylinders as part of
self-contained breathing apparatus. The DOT cylinder itself remains
subject to DOT requirements for repair and maintenance. However, no one
would assert that DOT should develop regulations for firefighters' use
of self-contained breathing apparatus merely because that apparatus
incorporates a DOT specification packaging. Similarly, it is difficult
to argue that manufacturing operations should be subject to regulation
under the HMR merely because such operations may incorporate a DOT or
UN specification packaging as part of the process. OSHA is the Federal
agency charged by the Congress with workplace safety oversight. OSHA
has detailed requirements for process safety management that apply to
all aspects of the manufacturing process, including rail tank car
unloading into a process. The OSHA process safety management standard
is considerably more comprehensive than the current regulations in
Sec. 174.67 of the HMR that apply to rail tank car unloading
operations. Overlaying the requirements in Sec. 174.67 with the OSHA
process safety management standard creates a duplicative and redundant
regulatory regime that is confusing, potentially costly, and
unnecessary.
Other commenters assert that the applicability of the HMR should be
determined based on the function, not on the status of the person
performing the function. ``[A]n individual's employment or occupation
should [not] dictate whether the HMR is applicable to the functions
being performed. Each entity performing these functions should be
subject to the same operational requirements, including training. Thus,
the HMR should be applicable to these functions regardless of the
status of the person who is performing the action.'' (American
Chemistry Council) Similarly, a commenter suggests that limiting the
applicability of the HMR to loading and unloading activities performed
by a carrier ``has no rational basis in fact. From a safety
perspective, there is no difference between an unloading activity
performed by a carrier and that same activity performed by the
consignee's employee. * * * If RSPA is concerned about unloading that
occurs long after the hazardous materials have been delivered to the
consignee, then RSPA should address that narrow issue, rather than
create an artificial jurisdiction test that is dependent upon the
identity of whom is conducting the regulated activity.'' (American
Trucking Associations)
We agree with commenters who suggest that the function being
performed should dictate whether the HMR should apply to that function.
As should be apparent by the discussion of this issue in the NPRM and
this final rule, our determination as to whether the HMR should apply
to the unloading of rail tank cars into manufacturing processes is
based on our analysis of the function being performed. Unloading of a
bulk packaging directly into a manufacturing process is not a
transportation function; such unloading is a manufacturing function and
should be treated as such for purposes of applicability of the HMR.
Indeed, unloading of a bulk packaging after a carrier has delivered it
to a consignee, detached its motive power, and departed the consignee's
premises should not be regulated differently from unloading of a non-
bulk packaging after a carrier has delivered it to a consignee and
departed the consignee's premises.
[[Page 61918]]
No commenter suggests that the act of emptying a non-bulk packaging
when performed by a consignee after delivery should be regulated under
the HMR. Such action clearly occurs after transportation is completed.
The same is true of the act of emptying a bulk packaging after a
carrier has delivered it to the consignee and departed the consignee's
premises.
Commenters suggest that the proposed definition for ``unloading
incidental to movement'' could result in confusion and ambiguity. ``In
simple situations where only one person is involved, the `who is
unloading' test may work quite well. Unfortunately, the reality of
handling hazardous liquids is that both the consignee and the carrier
are involved in the unloading because both parties have a strong
interest in the safe handling of the materials. Even where the carrier
is physically initiating and monitoring the unloading, the consignee is
likely to be inspecting the receiving tanks, assuring scrubbers are
functioning properly, monitoring pressures, checking for leaks and the
like. * * * With this sharing of responsibilities, who is performing
the unloading for the purposes of the Proposed Rule? Even if the
carrier is primarily responsible for the unloading, the consignee
arguably is performing unloading activities as well. This creates an
ambiguity with respect to whether a particular unloading scenario is or
is not transportation in commerce.'' (Unimin Corporation) Another
commenter has a similar concern. ``If more than one person is involved
in the loading or unloading of hazardous materials, a determination by
U.S. DOT should be made about who is primarily responsible for the
loading or unloading, which would, therefore, determine whether that
particular situation is or is not transportation in commerce as defined
by the proposed rule. HM-223 also does not address which standard
applies to loading or unloading operations that are done jointly by
carrier and facility personnel. Multiple agencies enforcing different
aspects of the loading, unloading and storage of hazardous materials
could result in many differing interpretations of the same situation.''
(American Road and Transportation Builders Association)
We agree that the proposed definition could create some confusion
when both carrier and consignee personnel are present and participating
in an unloading operation. In this final rule, therefore, we are
modifying the definition for ``unloading incidental to movement'' to
specify that if carrier personnel are present during the unloading of
packaged hazardous materials from a transport vehicle or the unloading
of a bulk package, such as a cargo tank or a rail tank car, into a
storage tank or manufacturing process, then the unloading operation is
considered to be incidental to the movement of the hazardous material
and is subject to regulation under the HMR. This approach is consistent
with our long-standing policy concerning hazardous materials incident
reporting. Under Sec. Sec. 171.15 and 171.16 of the HMR, carriers are
required to report incidents that occur during the course of
transportation. A carrier must report a loading or unloading incident
in conformance with Sec. Sec. 171.15 and 171.16 if carrier personnel
are present at the time the incident occurs, even if carrier personnel
are not participating in the loading or unloading operation. This is
also consistent with current HMR requirements concerning unloading of
cargo tanks in Sec. 177.834(i)(2).
Note that, as with loading operations, even where the HMR specify
requirements for unloading a packaging or container, OSHA requirements
may also apply. For example, the HMR specify valving, piping, hose, and
similar requirements as part of the specification packaging
requirements for authorized transportation of hazardous materials and
include periodic testing and maintenance requirements. In addition, for
unloading operations involving liquefied compressed gases in cargo
tanks, the HMR require an operator to develop and maintain operating
procedures for emergency discharge control equipment and emergency
shutdown of the unloading operation. OSHA regulations cover operational
procedures for unloading operations with which a facility must comply
and include requirements for facility equipment used for such unloading
operations. Persons who perform unloading operations generally will
have to comply with both the HMR and OSHA requirements. Similarly, EPA
requirements for environmental protection that relate to unloading
operations--such as requirements for secondary containment or vapor
recovery--may also apply.
A commenter suggests that if the HMR are not applicable ``to the
unloading of tank cars at a consignee facility, * * * other agencies
are going to get involved in the construction, test, inspection,
marking, labeling, securement rules and regulations. How does RSPA plan
to enforce the HMR in part, if not in whole, on an operation that is
not subject to the HMR?'' (Farmland) This commenter appears to
misunderstand the implications of the NPRM proposal concerning rail
tank car unloading. The NPRM proposed to exclude from regulation under
the HMR rail tank car unloading operations performed by consignee
personnel after delivery of the rail tank car to the consignee's
premises and departure of the rail carrier. However, other aspects of
the HMR continue to apply to a rail tank car. For example, HMR
requirements applicable to rail tank car construction, inspection, and
maintenance continue to apply to a rail tank car even if the unloading
operation involving such tank car is not subject to the HMR and,
indeed, even if the rail tank car does not contain a hazardous
material. Similarly, HMR requirements concerning rail tank car marking
continue to apply to a rail tank car.
In addition, as proposed in the NPRM, requirements related to the
protection of train and engine crews operating within a shipper or
consignee facility, such as posting warning signs, setting hand brakes,
and blocking the wheels of hazardous materials tank cars placed for
unloading would continue to apply, not because the tank car is being
unloaded incidental to movement but because unloading of a tank car has
the potential to affect the safety of rail carrier personnel. These
requirements apply whether or not the carrier is present during the
unloading operation.
In summary, the fact that a non-transportation function involving a
rail tank car is not regulated under the HMR does not negate the
design, construction, and maintenance standards for the rail tank car,
nor does it negate HMR requirements governing pre-transportation and
transportation functions applicable to the rail tank car. Further,
design, construction, and maintenance regulations may be enforced at
any time, irrespective of whether the tank car is involved in the
transportation of hazardous materials, so long as the tank car is
marked to certify that it has been constructed and maintained in
accordance with HMR requirements.
Commenters representing intermodal transfer facilities express
concern about the NPRM proposals for consignee unloading of rail tank
cars. As explained by commenters, ``[m]anufacturers of hazardous and
non-hazardous commodities contract with [intermodal transfer
facilities] to terminalize their products in rail tank cars and, under
their direction, transload said product into cargo tanks then deliver
to the end user, the consignee. [The intermodal transfer facility] at
no time takes title to any of the products that [it] handle[s], this is
clearly stated in * * * terminal contracts. [The intermodal transfer
[[Page 61919]]
facility] appears as the consignee on the waybill only for the purpose
of communicating to the carrier (the railroad) that the rail tank car
is to arrive at one of our terminals.'' (ACCU Chem Conversion, Inc.)
Another commenter states that the NPRM proposals ``could spell the
death knell for intermodal facilities where hazardous materials are
transferred in bulk because states and localities would be free to
impose unreasonable requirements making the operation of transfer
facilities impractical.'' (Association of American Railroads) These
commenters suggest that intermodal transfer operations should be
considered transportation functions and, thus, urge us to retain the
rail tank car unloading requirements currently in Sec. 174.67 of the
HMR.
We agree that a transloading operation at an intermodal transfer
facility--that is, the act of directly transferring hazardous materials
from one bulk packaging to another--is a function that should be
regulated under the HMR. Transloading is a pre-transportation function
in that it involves selection, preparation, and closing of packagings
for the transportation of hazardous materials. The transfer of
hazardous materials from one bulk packaging into another is a filling,
or loading, operation as defined in this final rule. During
transloading, the filling, or loading, of one bulk packaging occurs
simultaneously with the emptying, or unloading, of a second bulk
packaging. Further, a transloading operation at an intermodal transfer
facility is a continuation of the movement of a hazardous material
begun when a carrier takes possession of the hazardous material for the
purpose of transporting it. Therefore, in this final rule, we are
revising the definitions proposed in the NPRM for ``pre-transportation
functions'' and ``loading incidental to movement'' and ``unloading
incidental to movement'' to include transloading operations. We are
also defining a new term--``transloading''--to mean the transfer of a
hazardous material from one HMR-authorized bulk packaging to another
for purposes of continuing the movement of the hazardous material in
commerce.
Further, we agree that the rail tank car unloading regulations
currently in Sec. 174.67 of the HMR should be retained and applied to
transloading of a hazardous material from a rail tank car to a cargo
tank or other bulk hazardous materials packaging. Under Docket HM-212,
we had proposed to revise the rail tank car unloading requirements to
clarify and update them and account for technological advances. On
March 27, 2000, we published a notice withdrawing the HM-212 NPRM. We
withdrew the proposals in the HM-212 NPRM related to cargo tank
unloading because we addressed cargo tank unloading in a final rule
issued under Docket HM-225A (64 FR 28030). We announced that we would
address the issues raised in the HM-212 NPRM concerning the proposed
rewrite of rail tank car unloading requirements in the HM-223
rulemaking. Indeed, a number of commenters to the HM-212 NPRM suggested
that it should be broadened to address issues related to the definition
of the term ``in transportation'' and clarification of the respective
roles of OSHA and RSPA with respect to the transfer of hazardous
materials. In this final rule, we are incorporating revisions proposed
in HM-212. See the discussion below for specific revisions to this
section.
Note that, for purposes of the HMR, ``transloading'' does not
include operations that involve the transfer of a hazardous material
from one packaging to another for purposes of mixing, blending, or
otherwise altering the hazardous materials. Further, ``transloading''
does not include movement of product to or from a bulk storage tank.
For purposes of the HMR, ``transloading'' is a pure transfer from one
bulk packaging to another at an intermodal transfer facility;
operations conducted at a shipper facility before a hazardous material
is offered for transportation or at a consignee facility after
transportation is complete are not ``transloading'' and are not subject
to regulation under the HMR. Note also that, while the HMR apply to
transloading operations at fixed facilities, regulations of other
Federal or non-Federal entities may also apply to such facilities (see
discussion below).
Storage incidental to movement. In the NPRM, we proposed to define
``storage incidental to movement'' to mean temporary storage of a
transport vehicle, freight container, or package containing a hazardous
material between the time that a carrier takes physical possession of
the hazardous material to transport it in commerce until the package
containing the hazardous material is delivered to its destination, as
indicated on shipping documentation. As proposed in the NPRM, storage
incidental to movement would include temporary storage at a carrier
facility where the package containing the hazardous material is to be
transferred from one transport vehicle to another or from one
transportation mode to another. Storage incidental to movement would
also include the period during which a transport vehicle carrying
hazardous materials is parked temporarily at an en route point such as
a safe haven, rail yard, marine terminal, or at a truck stop, motel,
restaurant, rest area, or similar location. As proposed in the NPRM and
consistent with current policy, neither storage of a hazardous material
at an offeror facility prior to its acceptance by a carrier nor storage
of a hazardous material at a consignee facility after it has been
delivered by a carrier would be subject to the HMR.
Some commenters support the NPRM proposal for defining storage
incidental to movement. ``Storage of a hazardous material at an offeror
facility prior to its acceptance by a carrier or storage of a hazardous
material at a consignee facility after a carrier has delivered it
should not be subject to the HMR. These areas should be under the
jurisdiction of other agencies, such as OSHA and the local fire and
building authorities.'' (Monsanto) Similarly, some commenters agree
that ``when a hazardous material is transported to and held at a
storage facility at the request of the consignee, as indicated on the
shipping papers, transportation ends when the carrier delivers it to
the storage facility and the storage facility signs for the material.''
(International Warehouse Logistics Association)
Other commenters, however, oppose the NPRM proposals applicable to
storage incidental to movement. As discussed above, a number of
commenters suggest that the HMR should apply from the time that a
hazardous material is packaged until the time that the package is
delivered to the consignee; for bulk packagings, these commenters
suggest that the HMR should apply until the bulk package is emptied at
the consignee facility. These commenters assert that broad application
of the HMR to storage at both consignee and consignor facilities
assures uniform, national regulation of hazardous materials in
commerce. Some commenters also assert that the NPRM proposals
applicable to storage of hazardous materials represent an effort by
RSPA to ``relinquish'' its authority to regulate ``post-
transportation'' activities involving hazardous materials.
We disagree. As we stated in the NPRM, the proposals applicable to
storage of hazardous materials during transportation are generally
consistent with previous administrative determinations and letters of
interpretation concerning the applicability of the HMR to hazardous
materials stored incidental to movement (66 FR 32434-32435). The
proposals do not represent an effort on our part to relinquish
previously exercised regulatory authority. Rather, the
[[Page 61920]]
proposals clarify and make explicit in the HMR long-standing
administrative and policy determinations concerning the applicability
of the HMR to hazardous materials storage.
One commenter notes that the proposed definition of ``storage
incidental to movement'' appears to include only storage of a material
that is in the custody and control of a carrier from the time that the
carrier picks up the shipment until it is delivered to the destination
indicated on shipping documentation. ``RSPA should * * * move or revise
the section on `Storage incidental to movement of hazardous materials'
so that it covers storage by any person incidental to movement.''
(Firestone) We agree. There are situations during transportation when a
shipment is out of the direct possession and control of the carrier
while it is being stored incidental to its movement in commerce. In
this final rule, we modified the definition of ``storage incidental to
movement'' to include storage by any person between the time that a
carrier takes physical possession of a hazardous material for the
purpose of transporting it until the package containing the hazardous
material is delivered to the destination indicated on shipping papers
or other documentation. Note that, as stated in the NPRM, for a
hazardous material that is consigned by an offeror to a storage
facility rather than an end user, the material is no longer in
transportation in commerce once it has been delivered to the storage
facility.
The temporary holding of a package containing hazardous materials
at a motor carrier terminal for consolidation with other packages is
clearly within the meaning of storage incidental to movement of a
hazardous material in commerce as defined in this final rule. Further,
for through shipments, storage incidental to movement in commerce also
includes the temporary holding of a package, freight container, rail
car, or other instrument of containment of a hazardous material at a
marine terminal pending the arrival of a vessel onto which it will be
loaded or prior to its inland movement by rail or highway. Similarly,
the holding of a freight container or trailer at a carrier's intermodal
container transfer facility is within the meaning of storage incidental
to movement of a hazardous material in commerce as defined in this
final rule. Storage incidental to movement of hazardous materials in
commerce is subject to requirements in the HMR.
The NPRM stated that storage of a hazardous material at a transfer
facility where a hazardous material is repackaged prior to re-shipment
is not storage incidental to movement as we proposed to define it.
Consistent with previous administrative determinations and
interpretations, as cited in the NPRM (66 FR 32432), we proposed that
movement of a hazardous material would end at the facility to which the
hazardous material was consigned for repackaging. A number of
commenters express concern about this aspect of our proposed definition
for ``storage incidental to movement.'' ``The preamble to the proposed
rule appears to contemplate that the Hazardous Materials Regulations
would not apply to the storage of hazardous materials `intended' for
repackaging at transfer facilities. Storage activities at transfer
facilities, which are incidental to transportation, should not be
exempt from RSPA regulation. To do otherwise will at best create
confusion as to whether RSPA or Environmental Protection Agency
regulations apply, and at worst a dangerous regulatory void.''
(National Private Truck Council) Another commenter notes that ``[T]here
would be nothing materially different between the packages in storage
that are destined for repackaging and those that are not. Storage is
storage is storage. Second, it flies in the face of federal law
intended to promote intermodal movement in order `to achieve national
goals for improved air quality, energy conservation [and] international
competitiveness.' Third, it is contrary to established precedent.
Intermodal movements of hazardous materials are critical to commerce.
Previously, RSPA recognized this fact in preemption proceedings.''
(Institute of Makers of Explosives) Commenters ask that we clarify what
we mean by the term ``repackaging'' and explain why storage of
hazardous materials prior to repackaging is not included in our
definition of ``storage incidental to movement.'' ``[We] recommend a
detailed definition of the term `repackaging' in order to reduce
uncertainty about RSPA's intent concerning this activity. * * * Is it
RSPA's intent to assert, as it has in the past, that repackaging is a
``covered subject'' under [Federal hazmat law] and that state
regulations pertaining to repackaging that are not substantively the
same as corresponding federal regulations are subject to preemption?''
(Northeast Waste Management Officials Association)
As the commenters suggest, the act of repackaging a hazardous
material for transportation is a covered subject under Federal hazmat
law. 49 U.S.C. 5125(b). Repackaging is a pre-transportation function as
that term is defined in this final rule. Persons who repackage a
hazardous material must comply with all applicable HMR requirements
concerning the selection and preparation of a hazardous materials
package. Because the act of repackaging a hazardous material is a
covered subject under Federal hazmat law, non-federal requirements that
are not substantively the same as the HMR requirements applicable to
repackaging are preempted.
The fact that repackaging is a regulated activity under the HMR
does not mean that every activity associated with repackaging is also
regulated under the HMR. For example, transportation of a hazardous
material consigned to a facility for repackaging, as indicated on
shipping papers or other documentation, ends when the hazardous
material is delivered to the facility. Subsequent storage of the
hazardous material prior to its repackaging is not storage incidental
to movement as that term is defined in this final rule and is not
regulated under the HMR. Similarly, storage of the hazardous material
after it has been repackaged but prior to the time a carrier accepts it
for transportation is not storage incidental to movement as that term
is defined in this NPRM and is not regulated under the HMR. Moreover,
the facility at which repackaging occurs may be subject to OSHA and/or
EPA regulations governing worker safety and environmental protection
and to non-federal regulations applicable to community right-to-know,
fire protection, worker protection, building codes, zoning
requirements, and the like.
Many commenters address the NPRM proposals concerning storage of
rail cars on leased track. The NPRM proposed two alternatives for
applying the HMR to such storage. First, storage on leased track could
be considered storage by a consignee after movement in transportation
of the rail car has been completed, as indicated by the destination on
shipping documentation. In such situations, the rail carrier would be
viewed as performing a warehousing function on behalf of the consignee,
not a transportation function. Alternatively, storage of rail cars on
leased track (other than leased track immediately adjacent to the
shipper or consignee facility and exclusively for the shipper or
consignee's use) could be considered storage incidental to movement
because the cars have not been physically delivered to the consignee,
and the carrier retains physical possession of the shipment.
[[Page 61921]]
Commenters who support the first alternative agree that ``rail cars
stored on leased track should not be considered ``storage incidental to
movement'' in commerce subject to applicable HMR requirements. Rail
cars stored on leased track * * * would then be subject to local
regulations, including Federal Risk Management Program (RMP) * * *
regulations. * * * This information would assist the local emergency
response agencies [to] assess the threat and security of leased
tracking.'' (Contra Costa Health Services)
Commenters who support the second alternative assert that
``[e]stablishment of a system where rail cars on the general railroad
system do not have to comply with RSPA's regulations addressing
shipping papers, securement, and placarding would undermine safety. * *
* Furthermore, rail cars on leased track are not always stationary.
They are moved. Surely the public interest requires RSPA to apply its
hazardous materials regulations to rail cars containing hazardous
materials moving on railroad tracks.'' (Association of American
Railroads) Commenters also state that ``[t]here could be severe
consequences to railroads and their customers were RSPA to conclude
that hazardous materials cars on leased track were outside the scope of
RSPA's regulations. States and localities could impose unreasonable
secondary containment and other requirements making the placement of
tank cars on leased track infeasible. There may be inadequate capacity
to handle these cars in any other manner, thus dramatically affecting
the ability of railroads to transport these cars to destination and the
ability of the railroads' customers to continue their operations.''
(Association of American Railroads) Commenters also suggest that
``storage of rail cars on leased track should be considered
``incidental'' because the cars have not been delivered to the ultimate
consignee.'' (Farmland) As well, commenters state that rail card
``stored on leased track should be considered in transportation. * * *
Interim storage locations are not the ultimate destination of the
shipments, and the railroad maintains effective custody and control of
the shipments.'' (Monsanto)
After consideration of the comments received on this issue and in
consultation with the Federal Railroad Administration (FRA), we
conclude that rail cars stored temporarily on leased track, except for
leased track that is outside the control and responsibility of the rail
carrier and used exclusively for the movement of cars shipped to or
from the lessee, is storage incidental to movement and subject to
regulation under the HMR. This determination is consistent with
previously articulated interpretations (as discussed in the NPRM, 66 FR
32435), with current FRA policies, and with the definitions adopted in
this final rule. See specifically the discussion of the ``general
railroad system of transportation'' under the section entitled ``THE
EXTENT AND EXERCISE OF FRA'S SAFETY JURISDICTION'' in Appendix A to 49
CFR Part 209.
The concepts embodied by the term ``leased track'' are often taken
out of context. As currently set forth in Sec. 171.8 of the HMR,
``private track or private siding'' is defined to mean:
Track located outside of a carrier's right-of-way, yard, or
terminals where the carrier does not own the rails, ties, roadbed,
or right-of-way and includes track or a portion of track which is
devoted to the purpose of its user either by lease or written
agreement, in which case the lease or written agreement is
considered equivalent to ownership.
The key term in the definition is ``Devoted to the purpose of its
user,'' a phrase equivalent to the idea of ``exclusive use'' or
``ownership.'' Either track is used by a railroad, or it is devoted to
the exclusive use of another entity. The key to defining ``private
track'' is not the existence of a lease or even a deed of title, but
the devotion of that track to the sole purpose of some person other
than the railroad. Track may be leased for many purposes for the
convenience of the lessee. Many of these leases do not exclude the
railroad from using the track for its transportation purposes in
addition to the lessee's purposes. Where the railroad has not ceded its
care, custody, and control of the track to the lessee, such track
remains railroad track and not private track. Where the lessee (in a
transportation context, usually a shipper or receiver of rail cars)
assumes the care, custody, and control of the track, the track is
``devoted'' to the purposes of its user and is private track. Rail cars
containing hazardous materials that are stored on private track are not
stored incidental to movement and are not subject to the HMR; rail cars
containing hazardous materials that are stored on railroad track are
stored incidental to movement and are subject to the HMR. As explained
below, to avoid future misinterpretation, in this final rule we are
amending the definition in Sec. 171.8 of ``private track or private
siding.''
As noted above, to conclude that a rail car is stored incidental to
movement, we must determine whether the railroad carrier actually
exercises ownership or control over the cars and trackage; the facial
legal status of the cars and trackage, as expressed in a lease or
written agreement between the parties, is not determinative. Private
track may be located directly adjacent to a shipper or consignee
facility or within a facility some distance from either the shipper or
ultimate consignee. The lessee may have exclusive use of the leased
track, or the track also may be used for movement of rail cars other
than those of the shipper or consignee. Notwithstanding the terms of
any written agreement between the lessee and the rail carrier, if the
general system railroad controls the track, then the track is not
``private'' track for purposes of the HMR.
Railroads often agree to store cars along the route to their
ultimate destinations due to fluctuation in seasonal demand for the
commodities and limited track space at a consignee's facility. Examples
are liquefied petroleum gas, often held at locations distant from its
end user pending the demand for the product in cold weather, and
anhydrous ammonia, often held until the agricultural cycle requires
forwarding to a consignee. In these situations, tank cars may be
consigned to interim storage locations on track that is leased for
business purposes not relevant to the safety of the cars or the
products they contain. These interim storage locations are not the
ultimate destination of the shipments, and, in almost all such cases,
the railroad maintains effective custody and control of them, which in
this final rule is the primary consideration for determining the
applicability of the HMR to transportation functions. However, the fact
that a hazardous material is in a tank car does not necessarily mean
that a railroad is responsible for it. If an entity elects to
accumulate hundreds of cars of liquefied petroleum gas or anhydrous
ammonia on its own property in order to have supplies readily available
when needed, this business decision removes the car from transportation
for purposes of the HMR.
Under the Federal Railroad Safety Act (FRSA) and other rail safety
laws, FRA has treated leased track as being outside the general
railroad system and, sthus, outside the scope of FRA's rail safety
regulations only if such track is ``immediately adjacent'' to a plant
facility and the ``lease provides for, and actual practice entails,
exclusive use of that trackage by the plant railroad * * *'' 49 CFR
part 209, Appendix A. Regardless of the terms of a lease or other
written agreement, cars on railroad tracks in railroad yards or sidings
distant from the consignee are still on the general railroad system and
are ordinarily within the care, custody, and control of the railroad.
Even if a shipper or consignee leases such track,
[[Page 61922]]
it is rarely for the exclusive use of the shipper's or consignee's
cars, and, even if so restricted, the track is not ordinarily in any
practical sense controlled by the distant shipper or consignee.
Further, the risks associated with rail transportation of hazardous
materials exist whenever a rail car loaded with hazardous materials is
on the general railroad system. However, where cars are stored on
private track--that is, on track the use of which by actual practice is
restricted to movements of the lessee's cars and over which the
railroad exerts no control and has no responsibility for the cars on
that trackage--custody and control of the rail cars shifts to the
lessee, and the storage is not subject to the HMR.
FRA's discussion of plant railroad trackage in Appendix A to 49 CFR
part 209 is in accord with the definition in Sec. 171.8 of the HMR of
``private track or private siding'' as modified in this final rule. In
this final rule, we are also modifying the definitions proposed in the
NPRM to clarify that storage of rail cars containing hazardous
materials is storage incidental to movement and subject to regulation
under the HMR, except for storage of rail cars on private track. Note
that rail cars containing hazardous materials that are stored
temporarily on railroad track that does not meet the definition of
``private track or siding'' are subject to all applicable HMR
requirements during such storage. For example, rail cars must at all
times be accompanied by appropriate shipping documentation, including
emergency response information and an emergency response telephone
number in accordance with Subparts C and G of Part 172. Further,
placards required by Subpart F of Part 172 must remain on the rail cars
throughout the time they are stored on public track. In addition, tank
cars stored on railroad track that does not meet the revised definition
of ``private track or siding'' are subject to the requirements for
security plans in Subpart I of Part 172. The security plan must include
an assessment of possible transportation security risks and appropriate
measures to address the assessed risks. Specific measures put into
place by the plan may vary commensurate with the level of threat at a
particular time. At a minimum, a security plan must include elements
related to personnel security, unauthorized access, and en route
security.
As we noted in the NPRM, continuing the current policy that rail
cars stored on railroad track are stored incidental to movement may
necessitate separate rulemaking to address related safety and emergency
response issues. For example, we are considering whether the Sec.
174.14 requirements concerning expedited movement should apply to such
incidental storage. Further, we are considering how to assure that
emergency response information relevant to the specific hazardous
materials stored in rail cars on leased track is available as needed to
assist local officials to plan for and respond to incidents involving
such rail cars.
Several commenters asked us to clarify the applicability of the HMR
to the storage of hazardous wastes subject to Resource Conservation and
Recovery Act (RCRA) requirements. ``Under the Resource Conservation and
Recovery Act (RCRA), EPA storage requirements do not kick in for up to
ten days if hazardous waste is packaged according to the HMR. In
adopting the so-called `ten-day' rule, `EPA believe[d] that
transporters who hold hazardous waste for a short period of time in the
course of transportation should not be considered to be storing
hazardous wastes and should not be required to obtain an RCRA permit or
[to] comply[] with the substantive requirements for storage for the
holding of wastes which is incidental to normal transportation
practices.' '' (Institute of Makers of Explosives) Commenters are
concerned as to ``how the proposed rule will apply to RCRA 10-day
transfer facilities where hazardous wastes are temporarily stored en
route to their destination. EPA allows transporters to store hazardous
wastes for up to 10 days at transfer facilities without the need to
obtain RCRA permits. These hazardous wastes are considered to be in
transit from a customer to a [treatment, storage, or disposal (TSD)]
facility. We assume that DOT's basic interpretation that a hazardous
material is in transportation until it is `delivered to its destination
as indicated on the shipping paper' means that hazardous wastes held at
a 10-day transfer facility are in `storage incident to transportation,'
provided the shipping paper indicates that a TSD facility is the
wastes' destination.'' (Environmental Technology Council) Commenters
are also concerned that the proposed definition for ``storage
incidental to movement'' in the NPRM is inconsistent with current
policy and practice. In accordance with EPA regulations, the ten-day
storage provision applies to facilities at which hazardous wastes may
be repackaged during the ten-day storage period. The NPRM discussion of
issues related to ``storage incidental to movement'' indicated that
storage of a hazardous material at a carrier facility where a hazardous
material is repackaged prior to reshipment is not storage incidental to
transportation as we proposed to define it.
The EPA regulations addressing the transportation of hazardous
wastes include a provision addressing storage at hazardous waste
``transfer facilities.'' See 40 CFR 263.12. EPA regulations define a
``transfer facility'' to mean a ``transportation related facility * * *
where shipments of hazardous waste are held during the normal course of
transportation.'' See 40 CFR 260.10. These facilities normally conduct
transfers of waste containers between transport vehicles and/or modes
of transportation, and the transfer activities conducted there may
include activities which today's rule describes as consolidation of
packages, intermodal container transfers, through shipments, or
repackaging. These are activities that are common to hazardous waste
transfer facilities, and thus there is considerable similarity or
overlap between the activities that occur at RCRA transfer facilities
and the activities discussed in today's rule as storage incidental to
movement.
The substantive EPA regulation addressing hazardous waste transfer
facilities states that a transporter may store hazardous wastes at a
transfer facility without a RCRA storage permit for up to 10 days,
provided that the waste is stored in DOT approved packages. 40 CFR
263.12. This provision is intended only to provide transporters who
store hazardous wastes in the normal course of transportation at
transfer facilities with an exemption from the requirement to obtain a
RCRA storage permit for their temporary storage activities, and to
exempt them from the various substantive requirements that would
otherwise apply to RCRA-permitted treatment, storage, or disposal
facilities under 40 CFR part 264 or 265.
A transfer facility under RCRA regulations is strictly an
intermediate, temporary storage facility operated by a transporter.
Under EPA policies, a RCRA transfer facility cannot be the destination
facility named on the manifest for the receipt and management of the
waste. Rather, the transfer facility storage and transfer activities
occur while the hazardous waste shipment is considered to be under the
custody and control of one of the hazardous waste transporters
identified on the manifest. The manifest shows any changes of custody
among transporter companies, but it does not record waste receipts and
transfers at transfer facilities. As long as the transportation-related
facility meets the criteria established by EPA regulation
[[Page 61923]]
for ``transfer facilities'' (i.e., storage in the normal course of
transportation, storage in DOT approved packages, and storage not
exceeding 10 days), then the storage and related transfer activities
are allowed under RCRA regulations, and the transfer facility qualifies
for the exemption from RCRA permitting.
The transfer facility permitting exemption described in EPA
regulations is available to RCRA transfer facilities regardless of
whether they conduct through-shipment transfers, intermodal container
transfers, consolidation activities, or repackaging activities. Nothing
in today's rule discussing storage of hazardous materials at transfer
facilities and repackaging activities is intended to affect in any way
whether a hazardous waste transfer facility is eligible for the
permitting exemption for 10-day storage at RCRA transfer facilities
regulated under 40 CFR 263.12.
Moreover, since a RCRA transfer facility cannot be the destination
facility on the hazardous waste manifest, the discussion in today's
rule--indicating that transportation under the HMR ends upon delivery
of hazardous materials to a transfer facility to which materials have
been consigned for repackaging--is simply not applicable to RCRA
transfer facilities. This rule's policy on consignment of materials to
a transfer facility is limited to those instances where the consignment
to the facility for repackaging is indicated specifically on the
shipping paper or other documentation, i.e., where the facility that
will engage in repackaging is shown by the shipping paper to be the
destination for that movement. A RCRA transfer facility conducting
repackaging activities for hazardous waste shipments will not appear as
the destination to which a hazardous waste shipment is being consigned.
Therefore, our interpretation addressing consignments for repackaging
is not applicable to a RCRA transfer facility. Instead, the more
general policy on storage incidental to movement under the HMR applies
continuously to the holding of hazardous wastes at RCRA transfer
facilities. In other words, for the entire period of time that
hazardous wastes are transported to, arrive at, and are held by a RCRA
transfer facility, transportation under the HMR continues until the
hazardous waste is delivered to the permitted facility named as the
destination facility on the hazardous waste manifest.
However, our interpretation that transportation under the HMR ends
upon delivery to a consignment facility conducting repackaging applies
fully to a RCRA permitted facility that receives a hazardous waste
shipment as the destination facility on a hazardous waste manifest, and
then conducts repackaging activities. Many waste management firms with
RCRA permits have integrated transportation and waste treatment,
storage, and disposal operations. It is not uncommon for such a waste
management firm to pick up small waste shipments from numerous
generator sites, and then transport them to one of its permitted sites
for storage and consolidation or repackaging. The permitted storage
facility is listed on the manifest as the destination facility for the
waste shipment, and so cannot be considered to be a ``transfer
facility'' under RCRA regulations. However, if such a facility receives
a waste shipment that is consigned to it under the manifest for
repackaging, this shipment would fall within the policy in today's rule
on consignments for repackaging. Transportation under the HMR would end
upon delivery to the destination facility on the manifest. The
repackaging of the waste would then give rise to the start of pre-
transportation functions aimed at preparing the repackaged waste
shipment for its transportation to another destination facility under a
new hazardous waste manifest.
E. State/Local Requirements and Preemption
One of the primary purposes of Federal hazmat law is to assure a
nationally uniform set of regulations applicable to the transportation
of hazardous materials in commerce. Thus, the preemption provisions of
Federal hazmat law generally preclude non-Federal governments from
imposing requirements applicable to hazardous materials transportation
if:
(1) Complying with the non-Federal regulation and complying with
Federal hazmat law or the HMR or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland
Security is not possible (dual compliance test; 49 U.S.C. 5125(a)(1));
or
(2) The non-Federal requirement is an obstacle to carrying out
Federal hazmat law, the HMR, or a hazardous materials transportation
security regulation or directive issued by the Secretary of Homeland
Security (obstacle test; 49 U.S.C. 5125(a)(2)).
Further, Federal hazmat law preempts a non-Federal requirement
applicable to any one of several specified covered subjects if it is
not substantively the same as Federal hazmat law, the HMR, or a
hazardous materials transportation security regulation or directive
issued by the Secretary of Homeland Security (covered subjects test; 49
U.S.C. 5125(b)).
The HMR are not minimum requirements that other jurisdictions may
exceed if local conditions warrant; rather, the HMR are national
standards and must be uniformly applied across jurisdictional lines.
However, another Federal law may authorize non-Federal requirements. 49
U.S.C. 5125(a) and (b). Also, RSPA may waive preemption of a non-
Federal requirement if it: (1) provides the public with at least as
much protection as requirements of Federal hazmat law and the HMR, and
(2) does not impose an unreasonable burden on commerce. 49 U.S.C.
5125(e).
Commenters generally support the strong preemption provisions in
Federal hazmat law and credit preemption of inconsistent state and
local hazardous materials transportation requirements for contributing
to the strong hazardous materials transportation safety record. As
discussed above in this preamble, many commenters are concerned that
the NPRM undermines national regulatory uniformity and opens the door
to inconsistent and conflicting regulation of hazardous materials by
state, local, and tribal governments. We do not agree that the NPRM's
proposals for defining the parameters of the applicability of the HMR
undermine the preemption provisions of Federal hazmat law. As noted
several times herein and in the preamble to the NPRM, the proposals are
generally consistent with current provisions in the HMR and with
current policies outlined in letters of interpretation, preemption
determinations, and other administrative decisions. The fact that
numerous commenters are apparently unfamiliar with these current
requirements merely highlights the need to clarify the applicability of
the HMR in the HMR itself, which is the precise purpose of this final
rule. This final rule clarifies for the regulated industry and for
state, local, and tribal governments those areas where non-Federal
regulation is likely to be preempted and those areas where non-Federal
agencies may impose regulations.
Several commenters suggest revisions to the language proposed in
the NPRM in Sec. 171.1(f) to clarify where and to what functions non-
Federal requirements may apply. For example, one commenter suggests
that this section reference the preemption standards in subsection C of
49 CFR part 107 rather than repeat the standard in the HMR. We believe
that such repetition in the HMR is helpful; however, we have revised
this section to indicate that procedures for preemption
[[Page 61924]]
determinations can be found in Part 107.
The preemption provisions of Federal hazmat law effectively
preclude state, local, and tribal governments from regulating pre-
transportation functions, as defined in this final rule, in a manner
that differs from the Federal requirements if the non-Federal
requirement is not authorized under another Federal law and the non-
Federal requirement fails the dual compliance, obstacle, or covered
subject test. Examples of such pre-transportation functions include:
(1) Determining the hazard class of a hazardous material; (2) selecting
a hazardous materials packaging; (3) filling a hazardous materials
packaging; (4) transloading a hazardous material at an intermodal
transfer facility from one HMR-authorized bulk packaging to another
HMR-authorized bulk packaging for the purpose of continuing the
movement of the hazardous material in commerce; (5) securing a closure
on a filled hazardous materials package or container or on one
containing a residue of a hazardous material; (6) marking a package to
indicate that it contains a hazardous material; (7) labeling a package
to indicate that it contains a hazardous material; (8) preparing a
shipping paper; (9) providing and maintaining emergency response
information; (10) reviewing a shipping paper to verify compliance with
the HMR or international equivalents; (11) for persons importing a
hazardous material in to the United States, providing the shipper with
information as to the requirements of the HMR that apply to the
shipment of the material while in the United States; (12) certifying
that a hazardous material is in proper condition for transportation in
conformance with the requirements of the HMR; (13) blocking and bracing
a hazardous materials package in a freight container or transport
vehicle; (14) segregating a hazardous materials package in a freight
container or transport vehicle from incompatible cargo; and (15)
selecting or providing placards for a transport vehicle to indicate
that it is carrying hazardous materials. We have not attempted, in this
final rule, to identify every function that is a pre-transportation
function--that is, a function performed in advance of transportation in
commerce to prepare a shipment for transportation in commerce or that
affects the safety of the shipment in transportation in commerce.
State, local, or Indian tribe regulation of pre-transportation
functions not specifically identified in this final rule may also be
preempted under Federal hazmat law.
Unless the Secretary waives preemption, the preemption provisions
of Federal hazmat law effectively preclude state, local, and tribal
governments from regulating transportation functions, as defined in
this final rule, in a manner that differs from the Federal requirements
if the non-Federal requirement is not authorized by another Federal law
and the non-Federal requirement fails the dual compliance, obstacle, or
covered subject test. Examples of such transportation functions
include: (1) Movements of hazardous materials in commerce--that is, the
physical transfer of a hazardous material from one geographic location
to another by rail car, aircraft, motor vehicle, or vessel; (2) loading
of a hazardous material onto a transport vehicle, aircraft, or vessel
or into a bulk packaging; (3) unloading of a hazardous material from a
transport vehicle, aircraft, or vessel or from a bulk packaging when
carrier personnel are present; and (4) storage of a hazardous material
between the time that a carrier takes possession of the material until
it is delivered to its destination as indicated on shipping
documentation.
State, local, and tribal governments may impose regulations on
hazardous materials-related functions that are not covered by the HMR
or Federal hazmat law, except where RSPA has specifically determined
that regulation of a hazardous materials-related function is not
necessary. For example, hazardous materials that are not being
transported in commerce as defined in this final rule are subject to
applicable non-Federal community right-to-know, fire protection, worker
protection, environmental protection, building code, and zoning
requirements. Moreover, although the HMR apply to pre-transportation
functions as defined in this final rule, the facilities within which
pre-transportation functions are performed could be subject to non-
Federal regulations that do not affect the performance of the pre-
transportation function--again, fire protection, worker protection,
environmental protection, building code, and zoning requirements may
apply. Thus, state and local regulations applicable to hazardous
materials stored at a consignee's facility or at a manufacturing
facility awaiting use in a manufacturing process would not be preempted
(PD-9(R), 60 FR 8787, February 15, 1995). Similarly, the HMR do not
apply to regulation of consignee storage tanks; therefore, state or
local requirements as to the types of storage tanks into which a
hazardous material may be unloaded from a tank car are not preempted
(PD-9(R), 60 FR 8788, February 15, 1995). Further, local fire code
requirements that do not apply to the transportation of hazardous
materials in commerce are not preempted (PD-14(R), 63 FR 67506,
December 7, 1998).
The above discussion is intended as general guidance only. We will
continue to make preemption determinations applicable to specific non-
Federal requirements on a case-by-case basis, using the obstacle, dual
compliance, and covered subjects tests provided in Federal hazmat law.
F. OSHA, EPA, and ATF Programs and Regulations
OSHA. On December 29, 1970, Congress enacted the Occupational
Safety and Health Act of 1970 (OSH Act) for the purpose of assuring
safe and healthy workplaces. Under the OSH Act, every employer engaged
in a business affecting commerce has a general duty to furnish each of
its employees a workplace free from recognized hazards causing, or
likely to cause, death or serious physical harm. In addition, employers
are required to comply with all safety and health standards issued
under the OSH Act that are applicable to working conditions involved in
their businesses.
OSHA has promulgated a number of standards that address the
handling of hazardous materials at fixed facilities. These include
standards governing process safety management of highly hazardous
chemicals and requirements for handling and storage of specific
hazardous materials, such as compressed gases, flammable and
combustible liquids, explosives and blasting agents, liquefied
petroleum gases, and anhydrous ammonia. OSHA standards also address
hazard communication requirements at fixed facilities, including
container labeling, retention of transportation placards, and other
forms of warning, material safety data sheets, and employee training.
(29 CFR 1910.1200) In addition, facilities that handle and store
hazardous materials must comply with OSHA standards that address more
general types of workplace hazards, such as walking and working
surfaces, means of egress, noise, air quality, environmental control,
personal protective equipment, and fire protection.
EPA. EPA's mission is to protect human health and the natural
environment from pollution. More than a dozen major statutes or laws
form the legal basis for EPA's programs. Several of these statutes
establish programs covering facilities that handle hazardous materials.
They include:
[[Page 61925]]
[sbull] The Emergency Planning and Community Right-to-Know Act
(EPCRA; 42 U.S.C. 11011 et seq.) requires facilities to provide
information concerning the hazardous materials they have on site to
states, local planners, fire departments, and, through them, to the
public. This information provides the foundation for both community
emergency response plans and public-industry dialogues on risks and
risk reduction. EPCRA also requires facilities to report releases of
certain hazardous materials to state and local emergency responders.
[sbull] The Clean Air Act (42 U.S.C. 7401 et seq.) establishes a
general duty for facility owners or operators to identify hazards that
may result from accidental releases of extremely hazardous substances,
design and maintain a safe facility as needed to prevent such releases,
and minimize the consequences of releases that do occur. EPA has
promulgated a list of substances that, in the event of an accidental
release, are known to cause or may be reasonably expected to cause
death, injury, or serious adverse effects to human health or the
environment. EPA also has established a threshold quantity for each
listed chemical. Stationary sources that have more than a threshold
quantity of a regulated substance in a process are subject to the
accident prevention regulations promulgated by EPA, including the
requirement to develop risk management plans.
[sbull] The Resource Conservation and Recovery Act (RCRA; 42 U.S.C.
321 et seq.) gave EPA the authority to control hazardous waste from
``cradle to grave.'' This includes the generation, transportation,
treatment, storage, and disposal of hazardous waste. RCRA requires
hazardous waste transportation regulations to be consistent with
transportation regulations issued under Federal hazmat law.
[sbull] The Clean Water Act (33 U.S.C. 1251 et seq.) establishes
authority for the Spill Prevention, Control, and Countermeasure (SPCC)
program for non-transportation-related facilities. The SPCC regulations
are designed to prevent the discharge of oil from non-transportation-
related onshore and offshore facilities into or onto the navigable
waters of the United States or adjoining shorelines.
EPA is also authorized to regulate hazardous materials, and its
statutes do not expressly preclude EPA from regulating hazardous
materials activities regulated by RSPA, although EPCRA does exempt
``transportation, including the storage incident to such
transportation'' from many of its requirements. While most of EPA's
programs focus on fixed facilities, EPA also regulates transportation
of hazardous wastes under RCRA, as noted above. Moreover, loading,
unloading, and storage of hazardous materials generally occur at fixed
facilities. Recognizing the potential for regulatory overlap, EPA has
taken into account RSPA regulation of hazardous materials in deciding
whether and how to regulate. Consequently, the decisions RSPA makes in
this rulemaking may affect some EPA programs. The nature and extent of
that effect will depend on EPA's interpretation and implementation of
its statutes and regulations, some of which we describe further below.
ATF. Congress enacted Title XI of the Organized Crime Control Act
of 1970 to protect interstate and foreign commerce against interference
and interruption by reducing the hazard to persons and property arising
from misuse and unsafe or insecure storage of explosive materials.
Chapter 40 of the 1970 Act is entitled Importation, Manufacture,
Distribution and Storage of Explosive Materials. ATF has been delegated
the authority to enforce Chapter 40. ATF has promulgated regulations
contained in 27 CFR part 555 to implement its provisions.
For example, Sec. 555.30 contains requirements for licensees,
permittees, carriers of explosives materials, and other persons to
report the theft or loss of explosive materials within 24 hours of
discovery. ATF regulations also contain detailed provisions governing
the storage of explosive materials. These storage regulations address
numerous issues including: (1) A requirement to inspect storage
facilities at least every seven days (section 555.204); (2) where
magazines may be located (section 555.206); (3) construction
requirements of magazines, including locking mechanisms (sections
555.207-211); and (4) quantity restrictions and restrictions on the
items that may be stored together (section 555.213).
Relationship of Federal hazmat law to other statutes and
regulations. Federal hazmat law does not preempt other Federal statutes
nor does it preempt regulations issued by other Federal agencies to
implement statutorily authorized programs. The provisions of this final
rule are intended only to clarify the applicability of the HMR to
specific functions and activities. It is not appropriate for DOT to
attempt to clarify the applicability of other Federal agencies'
statutes or regulations to particular functions or activities. However,
it is important to note that facilities at which pre-transportation or
transportation functions are performed must comply with applicable OSHA
standards and state or local regulations applicable to physical
structures--for example, noise and air quality control standards,
emergency preparedness, fire codes, and local zoning requirements.
Facilities must also comply with applicable state and local regulations
for hazardous materials handling and storage operations and with state
and local regulations that address environmental protection.
Facilities at which pre-transportation or transportation functions
are performed may be subject to EPA regulations and additional OSHA
standards applicable to hazardous materials at fixed facilities. For
example, facilities that store hazardous materials may be subject to
EPA's risk management; community right-to-know; hazardous waste
tracking and disposal; and spill prevention, control and countermeasure
program requirements, and OSHA's process safety management and
emergency preparedness requirements. Further, facilities at which pre-
transportation or transportation functions are performed may also be
subject to ATF regulations applicable to licensing and permitting and
safe handling, including storage, of explosives. Questions as to the
applicability of EPA or ATF regulations or standards to particular
facilities or operations should be directed to the appropriate EPA,
OSHA, or ATF office.
OSHA Programs and Standards. The OSH Act vests OSHA with primary
responsibility for promulgating and enforcing workplace safety and
health standards. Under the OSH Act, every employer has a general duty
to provide its employees with a workplace free from recognized hazards
that are likely to cause death or serious physical harm and to comply
with occupational safety and health standards. Occupational Safety and
Health Act of 1970 (OSH Act) (84 Stat. 1590, as amended, 29 U.S.C.
653(b)(1).
To avoid duplicative regulation, section 4(b)(1) of the OSH Act
provides:
Nothing in this Act shall apply to working conditions of
employees with respect to which other Federal agencies * * *
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health. (Emphasis
added.)
However, when enacting and codifying the Federal hazmat law and
several other Federal statutes, Congress recognized that OSHA is the
most appropriate agency for addressing certain workplace hazards and,
therefore, included explicit language that preserves OSHA's regulatory
[[Page 61926]]
authority in areas where it might otherwise be preempted. Such
``reverse preemption language'' functions to nullify any effect the OSH
Act's 4(b)(1) provision might otherwise have and thus ensures that
OSHA's standards remain applicable.
Even without the reverse preemption language, OSHA would only be
precluded from applying its standards to facilities that perform pre-
transportation and transportation functions if DOT were to ``exercise''
its statutory authority, under Federal hazmat law, to prescribe or
enforce occupational safety and health standards of regulations at
these facilities. The Supreme Court recently held that mere possession
by another Federal agency of unexercised authority is insufficient to
displace OSHA's jurisdiction. Chao v. Mallard Bay Drilling, Inc., 524
U.S. 235, 241 (2002). The Court further held that a Federal agency's
minimal exercise of some authority over certain working conditions does
not result in complete preemption of OSHA jurisdiction. Id. Because we
neither affirmatively regulate the working conditions at facilities
where pre-transportation and transportation functions are performed,
nor assert comprehensive regulatory jurisdiction over the working
conditions at these facilities, OSHA's standards and regulations would
continue to apply at these facilities even in the absence of reverse
preemption language. This final rule makes clear that we do not intend
to exercise our statutory authority in a manner that precludes OSHA
from regulating at facilities where pre-transportation and
transportation functions are performed.
In the NPRM discussion of OSHA authority, we stated that functions
regulated under the HMR should not also be subject to conflicting
regulation by state and local governments and that other Federal
requirements should be consistent with the HMR. At the same time, the
HMR do not address the work environment within which such functions are
performed nor do the HMR address the working conditions applicable to
employees performing such functions. It is not appropriate for RSPA to
become extensively involved in developing and enforcing a complex
regulatory scheme covering working conditions for hazardous materials
employees who, although performing various functions regulated under
the HMR, are located in facilities that have characteristics similar to
those of many industrial workplaces.
One commenter suggests that ``allowing OSHA to regulate hazardous
materials transportation workers opens the door to a myriad of
different state regulations covering these activities, as only RSPA is
capable of preempting state occupational safety and health regulations
that differ from the federal standard.'' This commenter further
suggests that ``RSPA consider incorporating by reference applicable
OSHA rules. This option would allow RSPA to avail itself of OSHA's
expertise without duplicating resources. * * * The primary benefit of
such a strategy would be the promulgation of uniform hazardous
materials transportation worker safety standards that would apply
nationwide * * *'' (American Trucking Associations) Other commenters
suggest that RSPA could utilize the notice-and-comment rulemaking
process to propose hazmat employee safety regulations, based on OSHA
requirements, for inclusion in the HMR. ``[W]e note that the
Administrator has ample resources to publish a proposal, evaluate
comments as to the efficacy and applicability of the proposed standard
to hazmat transportation safety and craft a final rule. For years, the
Administrator has done this with respect to consensus standards
published by entities both domestic and international, and we see no
reason why this successful approach can't be replicated with respect to
OSHA and EPA.'' (National Tank Truck Carriers)
We disagree. As we stated in the NPRM, the OSH Act permits states
to adopt and enforce worker safety standards that may be more stringent
than the standards promulgated by OSHA. By contrast, Federal hazmat law
preempts many state and local laws and regulations applicable to
hazardous materials transportation that are not the same as the Federal
requirements in the HMR. If we were to incorporate by reference OSHA's
standards, then this could prevent states and localities from adopting
more stringent worker safety standards and would thus undermine the
intent of Congress as clearly expressed in the OSH Act. On the other
hand, because OSHA standards are promulgated under authority of the OSH
Act, states would be permitted to adopt more stringent requirements
irrespective of the preemption provisions of Federal hazmat law. We do
not believe that incorporating certain OSHA standards into the HMR
would result in uniform Federal regulation of transportation worker
safety in a manner consistent with Federal hazmat law or the OSH Act.
The NPRM proposed no change to the current division of
responsibilities between OSHA and RSPA for the regulation of hazardous
materials. OSHA has concurrent authority in this area, and its
standards protect workers who perform pre-transportation and other
functions. Further, Congress authorized OSHA, rather than the Secretary
of Transportation, to promulgate regulations applicable to workplace
safety and occupational health, even in facilities where pre-
transportation functions are performed. Such facilities are not
excepted from OSHA requirements merely because certain of the
activities performed at the facility are subject to HMR requirements.
The facility must assure that functions subject to the HMR are
performed in accordance with the HMR and must also assure that the
workplace in which the functions are performed conforms to applicable
OSHA requirements for occupational health and safety and that workers
who perform such functions are protected from hazards.
Where hazmat employees perform pre-transportation functions as
defined in this final rule, the HMR apply to the function being
performed, and OSHA's requirements for occupational safety and health
apply to the working conditions applicable to the hazmat employee
performing the function. Examples include hazmat employees working in
chemical plants, manufacturing facilities, and warehouses who determine
a material's hazard class under the HMR and prepare packages for
shipment. Preparation of hazardous materials packages for shipment must
be performed in accordance with the HMR; however, OSHA standards apply
to the working conditions under which the function is performed and to
measures necessary to protect the employee performing the function,
such as protective clothing and breathing equipment. The same is true
for transloading operations at intermodal transfer facilities--the
transloading function is regulated under the HMR, while OSHA
regulations apply to the working conditions under which transloading is
performed and the measures necessary to protect the employee performing
transloading operations.
The relationship between the OSHA regulations and the HMR for
transportation functions is more complex. Congress reauthorized Federal
hazmat law in 1994 to ``provide adequate protection against the risks
to life and property inherent in the transportation of hazardous
material in commerce.'' The ``risks to life inherent in the
transportation of hazardous material'' include risks to both the
general public and to transportation
[[Page 61927]]
workers, such as airline, railroad, maritime, and motor carrier
employees. Protection of the public generally and employees in
particular is necessarily an integrated undertaking. Thus, the HMR
include requirements aimed at protecting both the general public and
employees of hazardous materials carriers who perform transportation
functions. For example, the HMR include a variety of requirements for
communication of the hazards associated with a specific hazardous
materials shipment, such as shipping papers, package marks and labels,
and placards. The HMR also require a shipping paper to include a
telephone number for information about responding to an emergency
involving the shipment. A shipper must also include emergency response
information about the specific hazardous material being shipped with
the documentation that accompanies the shipment. These hazard
communication requirements are intended to assist emergency responders
to handle hazardous materials transportation incidents. The HMR also
require hazmat employees (employees who perform functions that affect
the safe transportation of a hazardous material) to receive safety
training concerning emergency response information for the materials
handled, protective measures, and methods and procedures for avoiding
accidents. The HMR specify that training provided in accordance with
OSHA requirements may be used to satisfy the HMR safety training
requirements.
OSHA standards include requirements for emergency action and fire
prevention plans at facilities. The OHSA standard for process safety
management includes requirements for emergency response to hazardous
materials incidents at a facility. OSHA also has promulgated a standard
for emergency response to hazardous materials incidents at fixed
facilities. The OSHA Hazardous Waste Operations and Emergency Response
Standard, 29 CFR 1910.120, includes requirements to protect workers in
this environment and to help them handle hazardous wastes safely and
effectively. The OSHA standard includes specific response procedures,
including requirements for protective equipment and training for
emergency response personnel.
In carrying out the mandate to prescribe regulations for the safe
transportation of hazardous materials, the Secretary of Transportation,
through the DOT operating administrations, has developed a special
expertise that makes the Department uniquely qualified to play the
primary Federal regulatory role in the protection of workers who
operate motor vehicles, trains, aircraft, and vessels used to transport
hazardous materials. Further, the preemption provisions in Federal
hazmat law provide the agency with the statutory authority to
promulgate nationally uniform regulations, thereby assuring that
carriers are not forced to comply with a number of different and
perhaps inconsistent regulatory requirements applicable to the safety
of their employees who transport hazardous materials by air, highway,
water, or rail in different state or local jurisdictions. Thus, we
believe that the proper role for RSPA in the area of occupational
safety is to focus our resources on carrier operations, an area in
which we have specialized competence and for which uniform national
standards are key to safe and efficient transportation.
Where the functions performed by hazmat employees are intrinsic to
the operations of carriers that transport hazardous materials in
commerce, the Secretary of Transportation, as well as OSHA, exercises
regulatory authority under Federal hazmat law for occupational safety
and health issues related to those hazmat employees. One commenter asks
for clarification of how OSHA and RSPA will exercise their shared
authority concerning worker safety protections for transportation
workers. ``A driver loading or unloading a cargo tank is subject to the
exact same health risks as a warehouse employee performing the same
task. It should go without saying that both employees are entitled to
the same worker safety protections, and OSHA is the agency to provide
those protections. *** [T]he HMR is primarily geared towards the
important task of preventing a release of hazardous materials during
transportation. *** OSHA, on the other hand, is better able to focus
its resources on the safety of workers who, despite the DOT
regulations, may nevertheless be exposed to hazardous materials during
loading, unloading, and storage. In this respect, OSHA regulates
aspects of the work environment that DOT admittedly does not have the
resources to regulate itself, including matters such as personal
protective equipment, permissible exposure limits, ventilation, hazard
communications, and medical surveillance. Employers should not be able
to avoid responsibility for protecting their employees through
compliance with these and other OSHA requirements, simply because DOT
regulates other aspects of hazardous materials transportation.''
(International Brotherhood of Teamsters)
We agree. As the Mallard Bay decision makes clear, allowing
complete preemption of OSHA regulations where another agency has
exercised only limited authority over certain working conditions would
result in large gaps in worker safety regulations that would be
inconsistent with the purpose of the OSH Act. While, as we stated in
the NPRM, DOT is uniquely qualified to play the primary Federal
regulatory role in the protection of transportation workers, we
recognize that OSHA also has a role in the protection of such workers.
Therefore, in this final rule, we are modifying the regulatory language
proposed in the NPRM to clarify that each facility at which pre-
transportation or transportation functions are performed is subject to
applicable standards and regulations of other Federal agencies.
As discussed elsewhere in this preamble, OSHA and DOT will continue
to share regulatory authority for certain transportation functions.
Thus, for loading or unloading operations, the HMR apply to the
packaging, including valving, piping, and hoses that are included as
part of a DOT specification packaging standard, to filling and closure
requirements for a packaging, and to specified operational procedures
when loading or unloading is performed by or in the presence of carrier
personnel. The OSHA regulations apply to facility equipment, including
hoses, piping, and valves that are part of and maintained by the
facility, and to operational procedures for a facility at which loading
or unloading operations are performed. Persons loading or unloading
hazardous materials at a facility may be subject to both HMR and OSHA
requirements.
EPA Programs and Regulations. The concurrent applicability of EPA's
regulations and the HMR to loading, unloading, and storage of hazardous
materials has caused significant confusion. The clarifications we are
making in this final rule concern the applicability of the HMR to
specific functions and activities. Entities involved with handling and
transporting hazardous materials should be aware that a number of EPA
requirements might also apply to their operations. Following are
descriptions of some EPA programs that apply to facilities that handle
and store hazardous materials.
EPCRA (SARA Title II). The Emergency Planning and Community Right-
to-Know Act, enacted by Congress in 1986 as Title III of the Superfund
Amendments and Reauthorization Act (SARA; 42 U.S.C. 11011 et seq.)
requires states to establish state and local
[[Page 61928]]
emergency planning groups to develop chemical emergency response plans
for each community. EPCRA also requires facilities to provide
information regarding the hazardous materials they have on site to
states, local planners, fire departments and, through them, the public.
In addition, EPCRA requires notification of releases of certain
hazardous substances. This information forms the foundation of both the
community emergency response plans and the public-industry dialogue on
risks and risk reduction contemplated by EPCRA. EPCRA emphasizes
prevention, preparedness, and response as key factors in reducing the
hazards associated with chemical releases.
Pursuant to EPCRA requirements, EPA has issued a list of extremely
hazardous substances and threshold planning quantities for each
substance. A facility is subject to a one-time emergency planning
notification if a substance on the list is present at the facility in
an amount in excess of the threshold planning quantity established for
the substance. 42 U.S.C. 11002(b)(1).
Among other requirements, facilities where hazardous chemicals, as
defined by OSHA, are present must prepare and submit an emergency and
hazardous chemical inventory form to the appropriate local emergency
planning committee (LEPC), state emergency response commission (SERC),
and fire department with jurisdiction over the facility. 42 U.S.C.
11022(a)(1). EPCRA also specifically requires the owner or operator of
a facility to promptly provide to an LEPC, on request, information that
the LEPC believes is necessary for developing and implementing an
emergency plan. 42 U.S.C. 11003(d)(3). Thus, certain hazardous
materials that are on site at a facility, in above-threshold
quantities, awaiting consumption in the manufacturing process, are
regulated under EPCRA.
Except for the release reporting requirements under EPCRA 304,
EPCRA does not apply to the transportation in commerce, including
storage incident to that transportation, of any substance or chemical
subject to EPCRA. 42 U.S.C. 11047. In its regulations implementing
EPCRA, EPA states that a substance is stored ``incident to
transportation'' in commerce if the stored substance is moving under
active shipping papers and has not reached the ultimate consignee. 40
CFR 355.40(b)(4)(ii). Consequently, hazardous materials that are stored
incident to transportation in commerce, as defined by EPA, are not
subject to the requirements of EPCRA. On the other hand, regulated
materials that have been delivered to the ultimate consignee's facility
are not stored ``incident to transportation'' in commerce and are
subject to EPCRA requirements.
Although its terminology differs, EPA's definition of ``storage
incident to transportation'' in commerce for purposes of EPCRA is
generally the same as the definition we are adopting in this final rule
for ``storage incidental to movement'' of a hazardous material in
commerce. For both definitions, a hazardous materials package, freight
container, or transport vehicle is stored incidental to movement in
commerce if it is en route to, but has not yet reached, its consignee.
For these situations, most of the EPCRA requirements do not apply.
Similarly, EPA agrees with RSPA's longstanding policy, as defined in
this final rule, that regulated materials that have been delivered to
their consignee are not in transportation in commerce and, thus, are
subject to EPCRA requirements.
Based on the definitions in this final rule, hazardous materials in
the following non-transportation situations are subject to applicable
EPCRA requirements:
(1) Hazardous materials stored at an offeror's facility prior to a
carrier taking possession of the hazardous material for movement in
transportation in commerce.
(2) Hazardous materials being unloading from a transport vehicle or
bulk packaging by a person employed by or under contract to the
consignee following delivery, including unloading into a manufacturing
process.
(3) Hazardous materials stored at a consignee facility after
delivery.
Clean Air Act, Sec. 112(r) (Risk Management Program). Although
EPCRA governs emergency response planning, it does not mandate that
facilities establish accident prevention programs. The CAA Amendments
of 1990, Pub. L. 101-549, 104 Stat. 2399, amended Sec. 112 of the
Clean Air Act, 42 U.S.C. 7412, by adding, among other things, a new
subsection (r), which includes requirements related to chemical
accident prevention. The goal of Sec. 112(r) is to prevent accidental
releases of extremely hazardous substances from ``stationary sources''
and to minimize the consequences of any accidental releases that do
occur.
Section 112(r) establishes a general duty for facility owners or
operators of stationary sources to identify hazards that may result
from accidental releases, design and maintain a safe facility, and
minimize the consequences of releases when they occur. Pursuant to
Sec. 112(r)(3), EPA has promulgated a list of substances that, in the
event of an accidental release, are known to cause or may be reasonably
expected to cause death, injury, or serious adverse effects to human
health and the environment. EPA also has established a threshold
quantity for each listed chemical. Stationary sources that have more
than a threshold quantity of a regulated substance are subject to the
accident prevention regulations promulgated by EPA under CAA Sec.
112(r), including the requirement to develop risk management plans.
EPA in its regulations defines ``stationary source'' as follows:
Stationary source means any buildings, structures, equipment,
installations, or substance emitting stationary activities which
belong to the same industrial group, which are located on one or
more contiguous properties, which are under the control of the same
person (or persons under common control), and from which an
accidental release may occur. The term stationary source does not
apply to transportation, including storage incident to
transportation, of any regulated substance or any other extremely
hazardous substance under the provisions of this part. A stationary
source includes transportation containers used for storage not
incident to transportation and transportation containers connected
to equipment at a stationary source for loading or unloading. * * *
40 CFR 68.3. (Emphasis added).
In 1999, EPA clarified its definition of stationary source by
stating,
Because a transportation container may at times function as a
storage container or a process at a stationary source, or may
function as part of operations at a stationary source, EPA is
specifically directed by statute to address these activities (CAA
section 112(r)(7)(B)(i)) (``The regulations shall cover storage, as
well as operations''). To the extent that DOT is also authorized
under Federal Hazmat Law to regulate activities that are at a
stationary source, nothing in the CAA prohibits both agencies from
exercising concurrent jurisdiction over these activities. As EPA has
said in the context of the RMP Rule, compliance with Federal Hazmat
Law and HMR requirements may satisfy parallel requirements of part
68. This approach to implementation reflects the coordination
between the agencies that is called for under CAA section
112(r)(7)(D). The exercise of concurrent jurisdiction preserves the
applicability of the Federal Hazmat Law and HMR and does not
supersede or limit DOT's jurisdiction.
(64 FR 28696, at 28698; May 26, 1999).
Consistent with prior RSPA interpretations and administrative
determinations (as cited previously in this preamble and in the
preamble to the NPRM), the provisions in this final rule clarify that,
from DOT's perspective, the following situations are neither
transportation in commerce nor storage incidental to transportation in
commerce:
[[Page 61929]]
(1) Hazardous materials stored at an offeror's facility prior to a
carrier taking possession of the hazardous material for movement in
transportation in commerce.
(2) Hazardous materials being unloaded from a transport vehicle or
bulk packaging following delivery to the consignee and after departure
of the carrier from the consignee facility, including unloading into a
manufacturing process.
(3) Hazardous materials stored at a consignee facility after
delivery.
(4) Hazardous materials temporarily stored at a transfer facility
for repackaging.
Resource Conservation and Recovery Act (RCRA). RCRA requires EPA to
issue regulations to ensure the proper management of hazardous waste
from its point of generation to its ultimate disposal--``cradle to
grave.'' The regulations establish a step-by-step approach to monitor
and control hazardous wastes at every point in the waste cycle. The
regulated community in this system includes those who generate,
recycle, transport, treat, store, and dispose of hazardous wastes.
The federal and state jurisdictional issues arising under hazardous
waste transportation law can be quite complex. At a threshold level,
EPA and DOT have joint statutory responsibilities for developing the
regulations that apply to hazardous waste transportation and to the
pre-transportation functions that are usually conducted by hazardous
waste generators. EPA and DOT are required by law to consult on the
development of hazardous waste transportation regulations, and as a
result, the two agencies' regulations in this area are inter-related.
EPA has incorporated DOT's pre-transportation requirements into its
hazardous waste generator regulations (see 40 CFR Part 262, Subpart C);
i.e., generators that send waste off-site for treatment, storage, or
disposal must comply with all applicable requirements of the HMR,
including the requirements for packaging, marking, and labeling
materials. In addition, generators are required to prepare, and
transporters are required to carry, the Uniform Hazardous Waste
Manifest for their off-site shipments. The HMR incorporate the Uniform
Hazardous Waste Manifest requirements for hazardous waste shipments and
permit such a manifest to be used to meet HMR requirements for shipping
papers provided it contains all the information required under Subpart
C of Part 172 of the HMR.
In the event of a release during transportation, transporters must
comply with EPA requirements for hazardous waste spill cleanup.
Hazardous wastes stored incidental to movement in commerce as that term
is defined in this final rule--that is, between the time that a carrier
takes possession of the hazardous waste until the hazardous waste is
delivered to the destination indicated on the hazardous waste
manifest--must be stored in accordance with EPA requirements for
hazardous waste storage, including time limits on such storage.
Similarly, in the event that a carrier discovers a leaking hazardous
materials package and the offeror directs the carrier to dispose of the
material, the carrier is subject to all applicable EPA and DOT
requirements for transporting, storing, and disposing of the material.
The EPA regulations establish a comprehensive set of requirements that
include administrative controls and facility standards aimed at
controlling the management of hazardous wastes at every point in the
waste cycle.
As is typical of many EPA environmental programs, RCRA hazardous
waste programs are implemented primarily by authorized state agencies.
While the RCRA statute generally allows authorized state programs to
include additional or more stringent requirements than those
established under EPA's regulations (see RCRA Sec. 3009), the
authority of RCRA authorized state programs to enact requirements that
are more stringent than federal requirements is limited in the area of
hazardous waste transportation. This follows from the fact that RCRA
Sec. 3003(b) requires that hazardous waste transporter regulations
adopted by EPA under RCRA Subtitle C must be consistent with the
requirements of the federal hazmat law and the HMR. RCRA state program
requirements for hazardous waste transportation must also be consistent
with federal hazmat law and regulations issued thereunder, or they may
be subject to preemption. Usually, authorized state programs adopt
hazardous waste transportation regulations that essentially mimic the
federal hazardous waste pre-transportation and transportation
regulations adopted by EPA. However, when state program regulations on
hazardous waste transportation exceed those developed by EPA, there is
at least the potential for these additional state law requirements to
raise issues of consistency with hazardous materials law and the HMR,
and thus give rise to preemption concerns.
The Federal/state jurisdictional issues that arise under hazardous
waste law can become quite complex when RCRA authorized states adopt
different or more stringent hazardous waste program requirements
affecting facilities where transportation related activities are
conducted. These issues have been raised most prominently in recent
years at hazardous waste ``transfer facilities.'' Transfer facilities
consist of dedicated, temporary storage facilities that are operated by
or for hazardous waste transporter companies. Under EPA standards (see
40 CFR 263.12 and Sec. 260.10), hazardous wastes may be stored at
transfer facilities without a RCRA permit for up to 10 days in DOT
approved packages, as long as the waste shipment remains under an
active manifest, and the storage occurs in the normal course of
transportation. Typically, such facilities handle transfers of waste
containers between vehicles, intermodal transfers, through shipments,
and consolidation of wastes in the normal course of transportation.
By their nature, hazardous waste transfer facilities involve
hazardous materials activities subject to the HMR (loading, unloading,
handling, repackaging, storage incidental to movement), as well as
hazardous waste storage and transportation related activities subject
to RCRA. Several RCRA authorized states have enacted additional
regulatory controls that exceed the minimal requirements specified in
EPA's transfer facility regulation. This additional layer of state
environmental regulation under RCRA has given rise to issues and
litigation surrounding the states' authority to impose additional
requirements at transfer facilities, and how these state requirements
relate to this Department's jurisdiction over hazardous materials under
the hazardous materials laws and the HMR.
The types of additional controls imposed on RCRA transfer
facilities by authorized states may run the gamut from licensing
requirements similar to those imposed on hazardous waste storage
facilities, to facility design and operation criteria that may include
berm or curb specifications, secondary containment requirements, floor
material specifications for container storage areas, aisle space or
setback requirements, waste compatibility standards, container
inspection requirements, and requirements for spill prevention or
mitigation equipment at loading docks and transfer areas. In addition,
states have imposed requirements for personnel training in hazardous
waste management, contingency planning, and closure planning and
financial assurance requirements to ensure that wastes are properly
removed and facilities and sites are properly decontaminated when
[[Page 61930]]
hazardous waste operations cease at transfer facilities. (These are
just a few examples of state-imposed controls and standards which RCRA
authorized states and EPA have identified to us; we do not mean to
suggest that this is an exhaustive listing.)
As is the case with OSHA-regulated worker safety requirements, the
fact that pre-transportation or transportation functions subject to the
HMR are performed at a hazardous waste facility, including a RCRA
transfer facility, does not preclude EPA, RCRA authorized state
agencies, or local government bodies from also imposing regulatory
requirements at that facility. In particular, RCRA authorized state
hazardous waste programs may impose facility requirements that exceed
the regulatory requirements enacted by EPA, when these additional
requirements are aimed at addressing the hazardous waste management
aspects of the facility, and are aimed at accomplishing environmental
protection objectives such as preventing releases of hazardous wastes
to the environment or protecting the environment in the event of a
release. Such state environmental regulations are permissible as long
as they are not aimed at regulating the transportation or pre-
transportation functions that are covered by the HMR, and do not affect
the performance of HMR-regulated transportation or pre-transportation
functions.
Should a state hazardous waste regulation be found to affect the
performance of HMR-regulated functions, it will be evaluated on a case-
by-case basis under the preemption criteria of 49 U.S.C. 5125. That is,
state law requirements in RCRA authorized programs that differ from
federal transportation or pre-transportation requirements will be
evaluated to determine if they fail the dual compliance, obstacle, or
covered subject tests discussed previously in this preamble section.
Thus, for example, RCRA authorized state agencies may not impose
packaging standards differing from those included in the HMR; they may
not impose manifesting requirements differing from those adopted by EPA
and DOT; and they may not prohibit facilities from handling (e.g.,
consolidating or repackaging) hazardous wastes at transfer facilities
or other facilities that are subject to regulation under both RCRA and
the HMR. There are, of course, other state law requirements beyond
these few examples that could affect the performance of transportation
or pre-transportation functions in ways that would be inconsistent with
hazardous materials law and the HMR.
Otherwise, facilities that perform both hazardous waste management
functions and transportation/pre-transportation functions must ensure
that the functions subject to the HMR are performed in accordance with
the HMR, and must also assure compliance with applicable EPA or State
law requirements addressing the environmental concerns associated with
the hazardous waste management functions at the facilities. Thus, in
the example of a RCRA transfer facility, preparation of hazardous waste
packages for shipment must be performed in accordance with the HMR. The
facility must also comply with the RCRA authorized states'
environmental regulations addressing the facility's hazardous waste
storage functions, such as berm and floor design requirements,
secondary containment requirements, aisle space and container
inspection requirements, personnel training requirements, and the like.
There is a broad scope to the possible environmental protection
requirements that might be imposed under state law and not pose any
significant jurisdictional issue under the hazardous materials laws and
the HMR.
Spill Prevention, Control, and Countermeasure (SPCC) Program. The
Clean Water Act (33 U.S.C. 1251 et seq.) establishes authority for the
Spill Prevention, Control, and Countermeasure (SPCC) program for non-
transportation-related facilities. The SPCC regulations are designed to
prevent the discharge of oil from non-transportation-related onshore
and offshore facilities into or onto the navigable waters of the United
States or adjoining shorelines. A 1971 Memorandum of Understanding
(MOU) between EPA and DOT establishes definitions of transportation-
related and non-transportation-related facilities for purposes of the
FWPCA. Under the MOU, SPCC regulations apply to the following non-
transportation-related facilities: (1) Oil storage facilities,
including all related equipment and appurtenances and bulk plant
storage; (2) terminal oil storage; (3) pumps and drainage systems used
in the storage of oil, except for in-line or breakout tanks needed for
the continuous operation of a pipeline system; and (4) any terminal
facility, unit, or process integrally associated with the transfer of
oil in bulk to or from a vessel. Loading racks, transfer hoses, loading
arms, and other equipment that is appurtenant to a non-transportation-
related facility or terminal and that is used to transfer oil in bulk
to or from highway vehicles or rail cars are also subject to regulation
under the SPCC program. The SPCC regulations include several
requirements for facility rail tank car and cargo tank motor vehicle
loading and unloading racks, such as a secondary containment system and
lights or barriers to prevent the vehicle from departing the facility
prior to disconnecting transfer lines.
ATF Programs and Regulations. As explained above, ATF regulations
at 27 CFR part 555 address the import, manufacture, distribution, and
storage of explosives. The regulations are promulgated under Chapter 40
of Title XI of the Organized Crime Control Act of 1970. Section 845(a)
of Chapter 40 states that most provisions of Chapter 40 shall not apply
to:
any aspect of the transportation of explosive materials via
railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which
pertain to safety.
Accordingly, when explosives fall within this exception, they are
not governed by the ATF regulatory requirements set forth above. Thus,
explosives that are stored incidental to movement, as that term is
defined in this final rule, are not subject to ATF requirements, but
instead are subject to HMR requirements applicable to such storage.
However, Sec. 845(a) does not apply in situations where facility
personnel perform pre-transportation functions with respect to
preparing explosives for transportation. Thus, as is the case with
certain OSHA and EPA regulations, a facility at which pre-
transportation functions are performed may also be subject to ATF
regulations applicable to operations at that facility.
The HMR do not contain storage and theft/loss reporting
requirements that directly correspond to the ATF regulations. The HMR
require hazardous materials stored incidental to movement to meet all
the applicable shipping paper, emergency response information, hazard
communication, packaging, and operational requirements that apply when
shipments are actually moving in transportation. In addition, the
Federal Motor Carrier Safety Regulations impose requirements on motor
vehicles that include requirements for storage incidental to movement.
For example, a motor vehicle that contains Division 1.1, 1.2, or 1.3
explosives must be attended at all times, including during incidental
storage, unless the motor vehicle is located on the motor carrier's
property, the shipper or consignee's property, or at a safe haven. In
addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3
explosive may not be parked on or within 5 feet of the traveled portion
of
[[Page 61931]]
a public highway or street; on private property without the consent of
the person in charge of the property; or within 300 feet of a bridge,
tunnel, dwelling, or place where people work or congregate unless for
brief periods when parking in such locations is unavoidable. ATF has
expressed some concern that explosives stored incidental to their
movement in transportation and, thus, falling within the Sec. 845(a)
exception, may present potential safety and security risks. For
example, ATF suggests that such explosives could be stored close to
non-related residential and commercial structures, as well as to
highways and roadways that are commonly traveled by the general public.
ATF is concerned that unsafe amounts of explosives could be stored in
one location and may not be adequately secured. Because the HMR do not
contain a restriction on the amount of time explosives may be stored
incidental to movement, ATF sees these regulatory deficiencies as
especially problematic. Moreover, the fact that explosives lost or
stolen while in transit do not have to be promptly reported as lost or
stolen could hinder law enforcement in preventing harm and gathering
intelligence.
We recognize there is a need to evaluate and address these issues
in the regulation of explosives stored incidental to movement. However,
this final rule is not the appropriate vehicle for imposing safety and
security requirements on explosives stored incidental to movement. This
final rule addresses specific situations, activities, and operations to
which the HMR apply, not what the safety and security standards should
be when the HMR do apply. In order to enhance the safety and security
of hazardous materials, including explosives, stored incidental to
transportation, we intend to propose additional requirements for
hazardous materials stored incidental to transportation. We intend to
consider industry and government standards, including the ATF
regulations in part 555, for guidance in formulating our proposals with
respect to explosives.
Finally, ATF also has concerns about ``safe havens.'' The FMCSRs
permit explosives to be stored for an indefinite period in a ``safe
haven.'' ATF has found that safe havens have been located next to major
highways and used for extended periods to store explosives. Because the
issue of safe havens is addressed in the advance notice of proposed
rulemaking issued jointly by RSPA and FMCSA under docket HM-232A on
July 16, 2002 (67 FR 46622), we will not address it in this final rule.
However, we will address these concerns in the near future.
IV. Revisions to Sec. 174.67
On September 14, 1992, we published an NPRM under Docket HM-212 (57
FR 42466), proposing several changes to the HMR as they apply to
loading and unloading of hazardous materials from rail tank cars and
cargo tanks. We proposed to amend the following sections of the HMR:
[sbull] Section 174.67(i) pertaining to unloading of tank cars and
Sec. 177.834(i) pertaining to the loading of cargo tanks to provide
for the use of signaling systems to meet attendance requirements.
[sbull] Sections 174.67(i) and 174.67(j) to allow a tank car
containing hazardous materials, under certain conditions, to remain
standing with the unloading connections attached when no hazardous
material is being transferred.
[sbull] Section 177.834 to remove a requirement that an attendant
must be within 25 feet of the cargo tank motor vehicle during loading
operations that are monitored by a signaling system.
Our goals were to provide tank car and cargo tank operators the
flexibility to design loading and unloading procedures appropriate to
specific facilities and circumstances, to accommodate new technologies
in the current regulatory scheme, and to incorporate certain exemptions
into regulations of general applicability. We received about forty (40)
comments in response to the NPRM from manufacturers, distributors,
shippers, carriers, and industry associations. Overall, commenters
supported the proposed rule, stating that it provides flexibility and
economic relief to industry with no diminution in safety.
The HM-223 NPRM proposed to delete the rail tank car unloading
requirements in Sec. 174.67, except for certain provisions related to
protection of train and engine crews, because changes in the way rail
tank cars are unloaded made the Sec. 174.67 requirements obsolete. As
discussed above, however, we have reconsidered the proposal in light of
comments suggesting the transloading operations should be regulated
under the HMR. Therefore, in this final rule, we are adopting certain
changes to Sec. 174.67 to update and clarify requirements and to
incorporate the provisions of certain exemptions into the HMR. This
final rule specifies that the requirements in Sec. 174.67 apply to
transloading operations. As discussed above, actions that assure that a
tank car that is being loaded or unloaded does not inadvertently enter
transportation or endanger transportation personnel (i.e., posting
warning signs, setting brakes, blocking wheels) are regulated under the
HMR. Unloading of rail tank cars by consignees after delivery by the
carrier is not regulated under the HMR, except as described in this
paragraph. As stated previously in this preamble, unloading of rail
cars at a facility after delivery by and departure of the rail carrier
is subject to OSHA regulations applicable to worker protection and
safety.
This final rule incorporates revisions to Sec. 174.67 applicable
to: (1) Securing tank cars during unloading to prevent movement of the
tank cars and entry to the unloading area by other rail equipment; (2)
written safety procedures; (3) monitoring of tank car unloading; and
(4) permitting tank cars to remain standing with unloading connections
attached. Except for those applicable to monitoring of tank car
unloading, the revisions proposed in this interim final rule are
currently authorized under over 80 exemptions granted to operators of
tank car unloading facilities.
The revisions to the tank car unloading monitoring requirements
incorporate procedures that are currently permitted by interpretation.
The HM-212 NPRM included a proposal to permit monitoring of tank car
unloading by use of a signaling system that includes surveillance
equipment (television monitors and video cameras) and remote shut-off
equipment. A number of commenters suggested that the proposal should be
expanded to authorize systems other than television or video
surveillance equipment, noting that sensors coupled with alarms can be
as effective as visual surveillance in detecting unintentional
releases. Indeed, in the case of a hazardous material that exists as a
gas under ambient conditions, a sensor is more effective than visual
surveillance. After further consideration of general industry
practices, we determined that a signaling system need not be equipped
with television monitors and video cameras to effectively meet the
attendance requirements as was proposed in the NPRM. Other types of
signaling systems are also acceptable. This final rule reflects this
change and is consistent with letters of clarification issued over the
past several years applicable to monitoring of tank car unloading.
This final rule revises Sec. 174.67 as follows:
1. Paragraph (a)(2) incorporates provisions, currently required
under exemptions, relevant to blocking the wheels of tank cars during
unloading.
[[Page 61932]]
2. Paragraph (a)(3) incorporates provisions, currently required
under exemptions, relevant to securing access to the track where
unloading operations are conducted. This paragraph requires facilities
to use derails, lined and blocked switches, portable bumper blocks, or
other equipment to prevent access by other rail equipment, including
motorized service vehicles.
3. Paragraph (a)(4) modifies the provisions in current paragraph
(a)(3) to permit operators some flexibility in the wording used on
caution signs.
4. Paragraph (a)(5) incorporates provisions, currently required
under exemptions, relevant to written safety procedures. This paragraph
requires operators to maintain written safety procedures, such as those
that meet the requirements of OSHA regulations in 29 CFR 1910.119 and
120, that are immediately available in the event of an emergency.
However, this provision is not intended to preempt the process safety
management, hazardous waste operations and emergency response, or any
other OSHA standards.
5. Paragraph (j) incorporates provisions currently permitted by
interpretation relevant to monitoring of unloading operations. To
eliminate confusion in wording noted by commenters, paragraph (i) is
modified in this final rule to clarify that the attendance requirement
may be met either by physical on-site attendance providing an
unobstructed view of the tank car unloading operation as currently
authorized under the HMR or by a signaling system, including video
systems, sensors, or mechanical equipment, that provides a level of
observation equivalent to on-site attendance.
6. Paragraph (j) is revised to specify that attendance is not
required when piping is attached to a top discharge outlet of a tank
car equipped with a protective housing specified in Sec. 179.100-12
provided that all valves on the tank car are tightly closed, the piping
is not connected to a hose or other unloading equipment, and the piping
extends no more than 15.24 centimeters (6 inches) from the outer edge
of the protective housing within which the discharge outlet is
enclosed. This provision eliminates the need for an operator to
disconnect piping when the unloading operation is interrupted or
temporarily discontinued, thereby reducing wear on the unloading
service equipment.
7. Current paragraph (k) is redesignated paragraph (l). New
paragraph (k) incorporates provisions, currently required under
exemptions, relevant to tank cars left standing with unloading
connections attached while no product is being transferred. Paragraph
(k) requires the facility operator to designate an employee responsible
for on-site monitoring of the transfer facility who is familiar with
the properties of the products contained in the tank cars and
procedures to be followed in the event of an emergency. The designated
employee must have the ability and the authority to take responsible
actions in the event of an emergency.
V. Section-by-Section Review
General
In Sec. 171.8, we define a new term, ``movement,'' to mean ``the
physical transfer of a hazardous material from one geographic location
to another by rail car, aircraft, motor vehicle, or vessel.''
Accordingly, we are replacing the term ``movement'' when it appears in
the HMR in a context where the new definition would be inappropriate.
These changes are in Sec. Sec. 173.3(c)(2); 173.6(b)(1) and (b)(3);
173.24a(a)(3); 173.62(c) in the table under Packing Instruction 131
each time it appears; 173.166(e)(4)(iii); 173.171 (d); 173.181(a)(2);
173.185(e)(7), (g)(1), and (g)(2); 173.189(b) and (d)(4)(i);
173.219(b)(3); 173.308(a)(4); 173.335(c); 173.416(f); 174.110;
174.112(b) and (c)(3); 174.115(a) and (b)(3); 175.81(a); 176.69(d);
176.76(a)(2) each time it appears; 176.78(f)(8); 176.93(a)(1);
176.116(d); 176.132(c); 176.168(g); 176.200(b) and (c) each time it
appears; 177.834(a); 177.840(b)(3); 177.870(e); 178.601(g)(1)(i)(D),
(g)(1)(ii), and (g)(4)(v); and 178.704(d)(3).
Part 171
Section 171.1. In this final rule, we are retitling this section
``Applicability of HMR to persons and functions.'' We are adding
introductory text to this section to explain the authority provided to
the Secretary of Transportation under Federal hazmat law to establish
regulations for the safe transportation of hazardous materials in
commerce; the Secretary's delegation of this authority to RSPA; and the
applicability of this section to packagings represented as qualified
for use in the transportation of hazardous materials in commerce and to
pre-transportation and transportation functions.
In paragraph (a) of this section, we specify that the HMR apply to
each person who manufactures, fabricates, marks, maintains,
reconditions, repairs, or tests a packaging or a component of a
packaging that is represented, marked, certified, or sold as qualified
for use in the transportation of hazardous materials in commerce,
including each person who performs these activities under contract to
an agency or branch of the Federal government. Paragraph (a) restates
requirements in current paragraphs (a)(3) and (b) of Sec. 171.1.
Paragraph (b) of this section specifies that the HMR apply to pre-
transportation functions performed by persons who offer hazardous
materials for transportation in commerce or cause hazardous materials
to be transported in commerce, including persons who perform pre-
transportation functions under contract to an agency or branch of the
Federal government. Paragraph (b) includes a non-exhaustive list of
pre-transportation functions to which the HMR apply.
Paragraph (c) of this section states that the HMR apply to
transportation of hazardous materials in commerce and to persons who
transport hazardous materials in commerce, including persons who
transport hazardous materials in commerce under contract to an agency
or branch of the Federal government. Paragraph (c) also defines the
points at which transportation in commerce begins and ends and lists
transportation functions included in the term ``transportation in
commerce''--movement of a hazardous material in commerce, loading
incidental to movement of a hazardous material in commerce, unloading
incidental to movement of a hazardous material in commerce, and storage
incidental to movement of a hazardous material in commerce. In this
final rule, the definitions have been revised from those proposed in
the NPRM to reflect commenters' concerns and suggestions.
Paragraph (d) lists specific functions that are not subject to the
HMR.
Paragraph (e) states that facilities at which pre-transportation or
transportation functions are performed in accordance with the HMR may
also be subject to applicable standards and regulations of other
Federal agencies.
Paragraph (f) states that facilities at which pre-transportation or
transportation functions are performed in accordance with the HMR may
also be subject to applicable laws and regulations of state and local
governments, except to the extent that such laws and regulations are
preempted by Federal hazmat law. Paragraph (f) also sets forth the
criteria established in Federal hazmat law for making preemption
determinations and notes that preemption procedures are in Subpart C of
49 CFR Part 107.
Paragraph (g) restates the penalties for noncompliance with the HMR
that are currently in paragraph (c) of Sec. 171.1.
[[Page 61933]]
The maximum criminal fines under Title 18 of the United States Code are
$250,000 for an individual and $500,000 for a corporation.
Section 171.2. We are revising this section to clarify those
persons and activities that are subject to the requirements of the HMR.
Generally, the revisions adopted in this section restate more clearly
the current requirements and prohibitions.
Paragraph (a) states that a person who performs a function that is
required by the HMR must perform the function in accordance with the
HMR.
Paragraph (b) requires a person who offers hazardous materials for
transportation in commerce to comply with the HMR or with an exemption,
approval, or registration issued in accordance with the HMR.
Paragraph (c) requires each person who performs a function covered
by or having an effect on the packaging specifications in parts 178,
179, or 180 of the HMR or an exemption or approval to perform the
function in accordance with the specification, exemption, or approval.
Paragraph (d) prohibits any person subject to the registration
requirements in subpart G of Part 107 from offering or accepting a
hazardous material for transportation in commerce or from transporting
a hazardous material in commerce unless that person is registered.
Paragraph (e) prohibits any person from offering or accepting a
hazardous material for transportation in commerce unless the hazardous
material is prepared for shipment as required by the HMR or an
applicable exemption, approval, or registration.
Paragraph (f) prohibits any person from transporting a hazardous
material in commerce except in conformance with the HMR or an
applicable exemption, approval, or registration.
Paragraph (g) restates requirements in current paragraph (c) of
Sec. 171.2. Paragraph (g) prohibits any person from representing,
marking, certifying, selling, or offering a packaging as meeting the
requirements of the HMR unless the packaging is manufactured,
fabricated, marked, maintained, reconditioned, repaired, and retested
in accordance with the applicable HMR requirements. Paragraph (g)
applies the same prohibition to any person who performs these functions
under the terms of an exemption, approval, or registration. This
paragraph also requires a packaging marked as meeting a DOT
specification or UN standard to conform to the specification or
standard at all times that the marking is visible. The requirements of
paragraph (g), like the current requirements in Sec. 171.2(a), apply
whether or not the packaging is used for the transportation in commerce
of a hazardous material.
Paragraph (h) restates the requirements in current paragraph (d) of
Sec. 171.2. This paragraph lists the representations, markings, and
certifications subject to the prohibitions of paragraph (g) of this
section.
Paragraph (i) prohibits any person from certifying that a hazardous
material is offered for transportation in commerce in accordance with
the HMR unless the hazardous material has been prepared for shipment as
required or authorized by the HMR or an exemption, approval, or
registration. This paragraph requires persons who offer a hazardous
materials package for transportation under the HMR to assure that the
package remains in condition for shipment until it is in the possession
of the transporting carrier.
Paragraph (j) prohibits any person from marking or representing
that a packaging for transporting a hazardous material in commerce is
safe, certified, or in compliance with the HMR unless it meets all
applicable regulatory requirements issued under Federal hazmat law.
This paragraph restates a prohibition in current paragraph (f)(1) of
Sec. 171.2.
Paragraph (k) prohibits any person from marking or representing
that a hazardous material is present in a package or transportation
conveyance if the hazardous material is not, in fact, present. This
paragraph restates a prohibition in current paragraph (f)(2) of Sec.
171.2.
Paragraph (l) prohibits any person from unlawfully tampering with
any marking, label, placard, or description on a document that is
required by Federal hazmat law or a regulation issued under Federal
hazmat law. This paragraph also prohibits any person from unlawfully
tampering with a package or transportation conveyance used to transport
hazardous materials. This paragraph restates a prohibition in current
paragraphs (g)(1) and (g)(2) of Sec. 171.2.
Paragraph (m) prohibits any person from falsifying or altering an
exemption, approval, registration, or other grant of authority relevant
to the transportation of hazardous materials issued by RSPA. This
paragraph further prohibits any person from offering a hazardous
material for transportation under an exemption, approval, registration,
or other grant of authority that has been altered without the consent
of RSPA. Finally, this paragraph prohibits any person from
representing, marking, certifying, or selling a packaging under an
exemption, approval, registration, or other grant of authority that has
been altered without the consent of RSPA.
Section 171.8. We are revising definitions for the terms
``carrier,'' ``person,'' and ``private track and siding.'' We are
adding definitions for the following terms: ``Administrator,''
``Associate Administrator,'' ``commerce,'' ``consignee,'' ``hazmat,''
``HMR,'' ``loading incidental to movement,'' ``movement,'' ``pre-
transportation function,'' ``Secretary,'' ``storage incidental to
movement,'' ``transloading,'' ``transportation or transport,''
``transportation facility,'' and ``unloading incidental to movement.''
We are deleting the definition for the term ``sheathing'' because it is
confusing and not necessary to an understanding of the HMR.
Part 173
Section 173.1. We are removing paragraph (c) and redesignating
current paragraph (d) as paragraph (c). Current paragraph (c) is
redundant with the revisions to Sec. Sec. 171.1 and 171.2.
Section 173.10. The NPRM proposed removing the requirements in this
section. A number of commenters oppose the deletion. Upon consideration
of the comments and consultation with FRA, we agree that the section
should not be removed.
Section 173.30. In the NPRM, we proposed to remove this section
because it conflicts with the new definitions of ``loading incidental
to movement'' and ``unloading incidental to movement'' proposed in
Sec. Sec. 171.1 and 171.8. Upon further consideration, we have decided
to retain this section with modifications to clarify that persons who
are subject to the loading and unloading requirements of the HMR must
comply with all applicable loading and unloading regulations.
Section 173.31. We are adding new paragraph (g) to consolidate
requirements related to the protection of train and engine crews during
rail tank car loading and unloading operations.
Part 174
We are revising Sec. 174.67 as discussed earlier in this preamble
to incorporate revisions to rail tank car unloading requirements to
incorporate certain exemptions provisions and clarify and update the
requirements.
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is considered a significant regulatory action under
Executive Order 12866 and the
[[Page 61934]]
Regulatory Policies and Procedures of the Department of Transportation
(44 FR 11034) because of significant public interest. A regulatory
evaluation is available for review in the public docket for this
rulemaking.
For the most part, the provisions of this final rule maintain the
status quo for applicability of the HMR and, thus, neither increase nor
decrease the costs of compliance with the HMR for persons who offer
hazardous materials for transportation or transport hazardous materials
in commerce. The only change from the status quo concerns rail tank car
unloading operations. This final rule excludes consignee unloading of
rail cars from regulation under the HMR, thereby reducing the costs of
compliance with the HMR for rail tank car unloading facilities. In
addition, this final rule expands application of current requirements
for placing warning signs, setting brakes, and blocking wheels during
rail tank car unloading operations to loading operations, as well. Rail
facilities currently utilize these protective measures as part of their
standard safe operating procedures and, thus, should incur minimal
increased costs as a result of this proposal.
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts state law and will have substantial direct effects
on the states, the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation requirements
of Executive Order 13132 apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(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; or
(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 final rule addresses covered
subject item(s) 1-5 above and preempts state, local, and Indian tribe
requirements not meeting the ``substantively the same'' standard. This
final rule is necessary because there appears to be confusion in the
regulated community and among Federal, state, and local agencies with
hazardous materials safety responsibilities concerning whether and to
what extent the HMR apply to particular operations and activities
related to the transportation of hazardous materials in commerce. The
most obvious area of confusion was identified in the 1996 and 1999
ANPRMs issued for this docket--which loading, unloading, and storage
activities are incidental to the movement of hazardous materials in
commerce and therefore subject to the HMR. In addition, there is
uncertainty concerning the extent to which other Federal, state, and
local agencies may regulate hazardous materials safety, particularly at
fixed facilities where the lines between pre-transportation,
transportation, and non-transportation operations are not clearly
articulated.
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.
The effective date of Federal preemption will be 90 days from
publication of a final rule in this matter in the Federal Register.
As required under Executive Order 13132, we consulted with state
and local officials early in the process of developing a proposed
regulation in this matter. Through letters dated November 2, 1999, we
invited the following organizations to participate in a meeting to
discuss the HM-223 rulemaking: National Governors' Association; Council
of State Governments; National Conference of State Legislatures; U.S.
Conference of Mayors; the National Association of Counties; the
National Association of Towns and Townships; and the National League of
Cities. We met with representatives of the National Governors'
Association, the Council of State Governments, and the National
Conference of State Legislatures on January 20, 2000. During the
meeting, we provided a brief summary of the status of the rulemaking.
In addition, we explained the preemption provisions of Federal hazmat
law and how this rulemaking could affect state and local government
programs governing hazardous materials safety. The state and local
government representatives asked several questions about time frames
and procedures for the rulemaking and expressed general support for the
rulemaking goals as expressed in the two ANPRMs. The state and local
government representatives did not comment on the issues and options
discussed in the two ANPRMs and expressed a preference to wait to
submit comments until we publish a specific proposal in an NPRM. We
encouraged the state and local representatives to submit written
comments in advance of publication of the NPRM to assure that the
rulemaking addresses their concerns. After the meeting, we sent letters
to all of the invited organizations, summarizing the meeting and again
encouraging them to submit written comments to the HM-223 docket in
advance of publication of the NPRM. None chose to do so.
In addition, following publication of the NPRM, we wrote to the
above-listed organizations to provide them with a copy of the NPRM. We
encouraged the organizations to submit comments on the NPRM and invited
them to meet with us to discuss the specifics of the proposals in the
NPRM. None of the organizations requested a meeting nor did they submit
comments.
RSPA made all written communications submitted in this proceeding
by state and local officials available to the Director of the Office of
Information and Regulatory Affairs, Office of Management and Budget.
C. 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, and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.
Nevertheless, through a letter dated November 2, 1999, we invited the
National Congress of American Indians (NCAI) to participate in a
meeting to discuss this rulemaking. The NCAI did not attend the
meeting, which occurred on January 20, 2000. After the meeting, we sent
a letter to the NCAI, summarizing the meeting and encouraging the
[[Page 61935]]
organization to submit written comments to the docket in advance of
publication of this NPRM. The NCAI chose not to do so.
In addition, following publication of the NPRM, we wrote to the
NCAI to provide a copy of the NPRM. We encouraged NCAI to submit
comments on the NPRM and invited its representatives to meet with us to
discuss the specifics of the proposals in the NPRM. NCAI did not
request a meeting or submit comments.
D. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. We have
determined that the requirements in this final rule will not have a
significant impact on a substantial number of small entities.
Need for the proposed rule. Federal hazardous materials
transportation law (Federal hazmat law), codified at 49 U.S.C. 5101 et
seq., authorizes the Secretary of Transportation to establish
regulations for the safe transportation of hazardous materials in
intrastate, interstate, and foreign commerce. The regulations apply to
persons who: (1) Transport hazardous materials in commerce; (2) cause
hazardous materials to be transported in commerce; or (3) manufacture,
mark, maintain, recondition, repair, or test packagings or containers
(or components thereof) that are represented, marked, certified, or
sold as qualified for use in the transportation of hazardous materials
in commerce. The regulations may govern any safety aspect of hazardous
materials transportation the Secretary considers appropriate. The law
defines ``transportation'' to mean ``the movement of property and
loading, unloading, or storage incidental to the movement,'' but does
not define with specificity the particular activities that fall within
the term ``loading, unloading, or storage incidental to movement.''
We have issued a number of interpretations, inconsistency rulings,
and preemption determinations in response to requests from the public
for clarification regarding the meaning of ``transportation in
commerce'' and whether particular activities are covered by that term
and, therefore, are subject to regulation under the HMR. Loading,
unloading, and storage of hazardous materials are areas of particular
confusion and concern. In addition, there is uncertainty concerning the
extent to which other Federal, state, and local agencies may regulate
hazardous materials safety, especially at fixed facilities. Although
the interpretations and administrative determinations we have issued
are publicly available, the regulated industry, Federal agencies, state
and local governments, and Indian tribes have not been consistently
aware of their existence and availability. Further, some of the
interpretations and decisions we have issued need to be revised in
light of changes in the Secretary of Transportation's and other Federal
agencies' statutory authority. Thus, we have initiated a rulemaking to
consolidate, clarify, and revise, as necessary, these interpretations
and administrative decisions and make them part of the HMR.
Description of Proposed Actions. The final rule clarifies the
applicability of the HMR by focusing on a carrier's possession of
hazardous materials for the purpose of transporting them in commerce.
Thus, the HMR would apply to the following functions:
1. Packaging functions. All functions related to the design,
manufacture, maintenance, and use of packagings authorized for the
transportation of hazardous materials in commerce. These functions
include testing, retesting, and reconditioning functions designed to
assure the integrity of authorized packagings.
2. Pre-transportation functions. All functions performed in advance
of transportation in commerce to prepare a shipment of hazardous
materials for transportation. These functions affect the safety of
hazardous materials shipments during transportation and include:
--Determining the hazard class of a hazardous material;
--Selecting a hazardous materials packaging;
--Placing warning signs, blocking wheels, and setting brakes on tank
cars placed for loading or unloading with closures open;
--Filling a hazardous materials packaging;
--Securing a closure on a filled hazardous materials package or
container;
--Marking a package to indicate that it contains a hazardous material;
--Labeling a package to indicate that it contains a hazardous material;
--Preparing a hazardous materials shipping paper;
--Providing and maintaining hazardous materials emergency response
information;
--Reviewing a hazardous materials shipping paper to verify compliance
with the HMR or international equivalents;
--For persons importing a hazardous material into the United States,
providing the shipper with information as to the requirements of the
HMR that apply to the shipment of the material while in the United
States;
--Certifying that a hazardous material is in proper condition for
transportation in conformance with the requirements of the HMR;
--Blocking and bracing a hazardous materials package in a freight
container or transport vehicle;
--Segregating a hazardous materials package in a freight container or
transport vehicle from incompatible cargo; and
--Selecting, providing, or affixing placards for a freight container or
transport vehicle to indicate that it is carrying hazardous materials.
3. Transportation functions. Functions performed as part of the
movement of hazardous materials in commerce. These functions include:
--Loading incidental to movement (i.e., loading of non-bulk packages,
portable tanks, or IBCs into freight containers or transport vehicles
by carrier personnel; loading of cargo tank motor vehicles by carrier
personnel; loading of rail tank cars by carrier personnel);
--Unloading incidental to movement (i.e., unloading of non-bulk
packages, portable tanks, or IBCs from freight containers or transport
vehicles by carrier personnel; unloading of cargo tank motor vehicles
by carrier personnel; unloading of rail tank cars by carrier
personnel); and
--Storage incidental to movement (i.e., storage of a hazardous
materials package between the time the package leaves the shipper's
premises and the time it arrives at the consignee's facility; storage
of rail tank cars on track leased from carrier by consignee).
Generally, the clarifications outlined above are consistent with
current regulatory requirements and previously issued administrative
decisions and interpretations concerning the applicability of the HMR
and maintain the current status quo. However, for rail transportation,
the clarifications included in the final rule represent a change from
current practice and interpretation. Because tank car unloading by
consignees is generally part of a manufacturing or distribution process
and, as such, is inappropriate
[[Page 61936]]
for regulation as a transportation function under the HMR, in this
final rule, we state that the unloading of a tank car by a consignee
within its facility is not subject to the HMR. This approach is
consistent with RSPA's current regulation of cargo tank unloading and
takes into account the changes in industry rail tank car unloading
practices since the regulations in Part 174 were promulgated.
Transloading operations--that is, the transfer of a hazardous material
at an intermodal facility directly from a rail tank car to a cargo tank
motor vehicle for the purpose of continuing the movement of the
hazardous material in commerce--would continue to be regulated under
the HMR, as such operations currently are regulated.
FRA believes that unique features of rail tank car loading and
unloading facilities and of rail tank cars themselves require continued
application of certain HMR requirements related to the protection of
train and engine crews operating within a shipper or consignee
facility. FRA wants to assure that, at the point of physical interface
between the general system of rail transportation and the facility rail
system, rail crews do not make inappropriate assumptions about the
status of a particular rail car or series of rail cars and attempt to
move cars that are attached to facility storage tanks or manufacturing
processes, thereby endangering rail crew safety or adversely affecting
movement along the general system of rail transportation. Therefore, in
this final rule, we retain current requirements for posting warning
signs, setting hand brakes, and blocking the wheels of hazardous
materials tank cars placed for unloading with closures open. We further
require application of these protective measures whenever a tank car is
placed for loading with a closure open. The risk to the general system
of rail transportation and to rail crews operating within a facility is
the same whether a hazardous materials tank car is placed for either
loading or unloading with a closure open.
In this final rule, we have rewritten the regulations applicable to
rail transloading operations in Sec. 174.67 of the HMR. The final rule
permits facilities to use signaling systems to monitor operations and
incorporates certain exemptions provisions authorizing tank cars to
stand with unloading connections attached during intermittent
operations. Eliminating the need for exemptions and permitting
facilities flexibility in monitoring operations will significantly
reduce operating costs for these facilities and will result in a
reduction in administrative costs for the Federal government.
Identification of potentially affected small entities. For the most
part, the selected alternative maintains the status quo in terms of
applicability of the HMR, thus imposing no new compliance costs on the
regulated industry. For rail tank car unloading facilities, the final
rule reduces the costs of compliance with the HMR by eliminating the
current requirement that rail tank car consignees comply with unloading
requirements in Sec. 174.67. For facilities at which rail tank cars
are loaded with hazardous materials, because operators are currently
posting warning signs, setting hand brakes, and blocking wheels of rail
cars placed for loading as part of their standard operating procedures,
the selected alternative imposes no costs of compliance related to
preventing access to the tank car during loading.
Unless alternative definitions have been established by the agency
in consultation with the Small Business Administration (SBA), the
definition of ``small business'' has the same meaning as under the
Small Business Act. Therefore, since no such special definition has
been established, RSPA employs the thresholds published by SBA for
industries subject to the HMR. Based on data for 1997 compiled by the
U.S. Census Bureau, it appears that upwards of 95 percent of firms who
are subject to the HMR are small businesses. These entities will incur
no new costs to comply with the HMR under this final rule.
The Federal Railroad Administration estimates that there are 2,500
rail tank car loading and unloading facilities operated by
manufacturers of chemicals and allied products. Since no special
definition has been established, we employ the threshold of 500-1,000
employees published by SBA for manufacturers of chemicals and allied
products (NAICS Subsector 325). Based on data for 1997 compiled by the
U.S. Census Bureau, it appears that 93 percent of these firms are small
businesses. The provisions in this final rule will not increase the
costs of complying with HMR requirements related to preventing access
to rail tank cars during loading operations and will reduce the cost of
complying with the HMR unloading requirements.
Related Federal rules and regulations. OSHA issues regulations
related to safe operations, including containment and transfer
operations, involving hazardous materials in the workplace. These
regulations are codified at 29 CFR Part 1910 and include requirements
for process safety management of highly hazardous chemicals and for
operations involving specific hazardous materials, such as compressed
gases, flammable and combustible liquids, explosives and blasting
agents, liquefied petroleum gases, and anhydrous ammonia. OSHA
regulations also address hazard communication requirements at fixed
facilities, including container labeling and other forms of warning,
material safety data sheets, and employee training.
EPA issues regulations designed to prevent accidental releases into
the environment of hazardous materials at fixed facilities, codified at
40 CFR Part 68. These regulations include requirements for risk
management plans that must include a hazard assessment, a program for
preventing accidental releases, and an emergency response program to
mitigate the consequences of accidental releases. In addition, EPA
regulations applicable to hazardous materials at fixed facilities
address community right-to-know requirements; hazardous waste
generation, transportation, storage, disposal, and treatment; and
requirements to prevent the discharge of oil into or onto the navigable
waters of the United States or adjoining shorelines.
Conclusion. We have determined that this final rule will impose no
new costs of compliance with HMR requirements. This final rule will
reduce the overall costs of compliance for companies that operate rail
tank car unloading facilities. I hereby certify that this final rule
will not have a significant economic impact on a substantial number of
small businesses.
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.
E. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements.
F. 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 contained in the heading of
this document can be used to cross-
[[Page 61937]]
reference this action with the Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule imposes no mandates and thus does not impose
unfunded mandates under the Unfunded Mandates Reform Act of 1995.
H. Environmental Assessment
We find that there are no significant environmental impacts
associated with this final rule. An environmental assessment has been
placed in the public docket for this rulemaking.
I. Privacy Act Statement
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Railroad
safety.
49 CFR Part 175
Air carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
0
In consideration of the foregoing, we are amending 49 CFR Parts 171,
173, 174, 175, 176, 177, and 178 as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for Part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
2. Section 171.1 is revised to read as follows:
Sec. 171.1 Applicability of Hazardous Materials Regulations (HMR) to
persons and functions.
Federal hazardous material transportation law (49 U.S.C. 5101 et
seq.) directs the Secretary of Transportation to establish regulations
for the safe transportation of hazardous materials in commerce, as the
Secretary considers appropriate. The Secretary is authorized to apply
these regulations to persons who transport hazardous materials in
commerce. In addition, the law authorizes the Secretary to apply these
regulations to persons who perform pre-transportation functions that
relate to assuring the safe transportation of hazardous materials in
commerce, specifically persons who offer for transportation or
otherwise cause hazardous materials to be transported in commerce. The
law also authorizes the Secretary to apply these regulations to persons
who manufacture or maintain packagings or components of packagings that
are represented, marked, certified, or sold as qualified for use in the
transportation of a hazardous material in commerce. Federal hazardous
material transportation law also applies to anyone who indicates by
marking or other means that a hazardous material is present in a
package or transport conveyance when it is not, and to anyone who
tampers with a package or transport conveyance used to transport
hazardous materials or a required marking, label, placard, or shipping
description. In 49 CFR 1.53, the Secretary delegated authority to issue
regulations to the Research and Special Programs Administrator. The
Administrator issues the Hazardous Materials Regulations (HMR; 49 CFR
Parts 171 through180) under that delegated authority. This section
addresses the applicability of the HMR to packagings represented as
qualified for use in the transportation of hazardous materials in
commerce and to pre-transportation and transportation functions.
(a) Packagings. Requirements in the HMR apply to each person who
manufactures, fabricates, marks, maintains, reconditions, repairs, or
tests a packaging or a component of a packaging that is represented,
marked, certified, or sold as qualified for use in the transportation
of a hazardous material in commerce, including each person under
contract with any department, agency, or instrumentality of the
executive, legislative, or judicial branch of the Federal government
who manufactures, fabricates, marks, maintains, reconditions, repairs,
or tests a packaging or a component of a packaging that is represented,
marked, certified, or sold as qualified for use in the transportation
of a hazardous material in commerce.
(b) Pre-transportation functions. Requirements in the HMR apply to
each person who offers a hazardous material for transportation in
commerce, causes a hazardous material to be transported in commerce, or
transports a hazardous material in commerce and who performs or is
responsible for performing a pre-transportation function, including
each person performing pre-transportation functions under contract with
any department, agency, or instrumentality of the executive,
legislative, or judicial branch of the Federal government. Pre-
transportation functions include, but are not limited to, the
following:
(1) Determining the hazard class of a hazardous material.
(2) Selecting a hazardous materials packaging.
(3) Filling a hazardous materials packaging, including a bulk
packaging.
(4) Transloading a hazardous material at an intermodal transfer
facility from one bulk packaging to another bulk packaging for purposes
of continuing the movement of the hazardous material in commerce.
(5) Securing a closure on a filled or partially filled hazardous
materials package or container or on a package or container containing
a residue of a hazardous material.
(6) Marking a package to indicate that it contains a hazardous
material.
(7) Labeling a package to indicate that it contains a hazardous
material.
(8) Preparing a shipping paper.
(9) Providing and maintaining emergency response information.
(10) Reviewing a shipping paper to verify compliance with the HMR
or international equivalents.
(11) For each person importing a hazardous material into the United
States, providing the shipper with timely and complete information as
to the HMR requirements that will apply to the transportation of the
material within the United States.
[[Page 61938]]
(12) Certifying that a hazardous material is in proper condition
for transportation in conformance with the requirements of the HMR.
(13) Loading, blocking, and bracing a hazardous materials package
in a freight container or transport vehicle.
(14) Segregating a hazardous materials package in a freight
container or transport vehicle from incompatible cargo.
(15) Selecting, providing, or affixing placards for a freight
container or transport vehicle to indicate that it contains a hazardous
material.
(c) Transportation functions. Requirements in the HMR apply to
transportation of a hazardous material in commerce and to each person
who transports a hazardous material in commerce, including each person
under contract with any department, agency, or instrumentality of the
executive, legislative, or judicial branch of the Federal government
who transports a hazardous material in commerce. Transportation in
commerce begins when a carrier takes possession of a hazardous material
for the purpose of transporting it and continues until the package
containing the hazardous material arrives at the destination indicated
on a shipping document, package marking, or other medium, or, in the
case of a rail car, until the car arrives at a private track or siding.
For a private motor carrier, transportation in commerce begins when a
motor vehicle driver takes possession of a hazardous material for the
purpose of transporting it and continues until the driver relinquishes
possession of the package containing the hazardous material at its
destination and is no longer responsible for performing functions
subject to the HMR with respect to that particular package.
Transportation in commerce includes the following:
(1) Movement. Movement of a hazardous material by rail car,
aircraft, motor vehicle, or vessel (except as delegated at Sec.
1.46(t) of this title).
(2) Loading incidental to movement of a hazardous material. Loading
of packaged or containerized hazardous material onto a transport
vehicle, aircraft, or vessel for the purpose of transporting it,
including blocking and bracing a hazardous materials package in a
freight container or transport vehicle, and segregating a hazardous
materials package in a freight container or transport vehicle from
incompatible cargo, when performed by carrier personnel or in the
presence of carrier personnel. For a bulk packaging, loading incidental
to movement is filling the packaging with a hazardous material for the
purpose of transporting it when performed by carrier personnel or in
the presence of carrier personnel (except as delegated at Sec. 1.46(t)
of this title), including transloading.
(3) Unloading incidental to movement of a hazardous material.
Removing a packaged or containerized hazardous material from a
transport vehicle, aircraft, or vessel, or, for a bulk packaging,
emptying a hazardous material from the bulk packaging after the
hazardous material has been delivered to the consignee and prior to the
delivering carrier's departure from the consignee's facility or
premises or, in the case of a private motor carrier, while the driver
of the motor vehicle from which the hazardous material is being
unloaded immediately after movement is completed is present during the
unloading operation. (Emptying a hazardous material from a bulk
packaging while the packaging is on board a vessel is subject to
separate regulations as delegated at Sec. 1.46(t) of this title.)
(4) Storage incidental to movement of a hazardous material. Storage
of a transport vehicle, freight container, or package containing a
hazardous material by any person between the time that a carrier takes
physical possession of the hazardous material for the purpose of
transporting it until the package containing the hazardous material is
delivered to the destination indicated on a shipping document, package
marking, or other medium, or, in the case of a private motor carrier,
between the time that a motor vehicle driver takes physical possession
of the hazardous material for the purpose of transporting it until the
driver relinquishes possession of the package containing the hazardous
material at its destination and is no longer responsible for performing
functions subject to the HMR with respect to that particular package.
Storage incidental to movement includes rail cars containing hazardous
materials that are stored on track that does not meet the definition of
``private track or siding'' in Sec. 171.8 of this subchapter, even if
those cars have been delivered to the destination shown on the shipping
document.
(d) Functions not subject to the requirements of the HMR. The
following are examples of activities to which the HMR do not apply:
(1) Storage of a freight container, transport vehicle, or package
containing a hazardous material at an offeror facility prior to a
carrier taking possession of the hazardous material for movement in
transportation in commerce or, for a private motor carrier, prior to a
motor vehicle driver taking physical possession of the hazardous
material for movement in transportation in commerce.
(2) Unloading of a hazardous material from a transport vehicle or a
bulk packaging performed by a person employed by or working under
contract to the consignee following delivery of the hazardous material
by the carrier to its destination and departure from the consignee's
premises of the carrier's personnel or, in the case of a private
carrier, departure of the driver from the unloading area.
(3) Storage of a freight container, transport vehicle, or package
containing a hazardous material after its delivery by a carrier to the
destination indicated on a shipping document, package marking, or other
medium, or, in the case of a rail car, storage of a rail car on private
track.
(4) Rail and motor vehicle movements of a hazardous material
exclusively within a contiguous facility boundary where public access
is restricted, except to the extent that the movement is on or crosses
a public road or is on track that is part of the general railroad
system of transportation, unless access to the public road is
restricted by signals, lights, gates, or similar controls.
(5) Transportation of a hazardous material in a motor vehicle,
aircraft, or vessel operated by a Federal, state, or local government
employee solely for noncommercial Federal, state, or local government
purposes.
(6) Transportation of a hazardous material by an individual for
non-commercial purposes in a private motor vehicle, including a leased
or rented motor vehicle.
(7) Any matter subject to the postal laws and regulations of the
United States.
(e) Requirements of other Federal agencies. Each facility at which
pre-transportation or transportation functions are performed in
accordance with the HMR may be subject to applicable standards and
regulations of other Federal agencies.
(f) Requirements of state and local government agencies. (1) Each
facility at which pre-transportation or transportation functions are
performed in accordance with the HMR may be subject to applicable laws
and regulations of state and local governments and Indian tribes,
except to the extent that such laws and regulations are preempted under
49 U.S.C. 5125.
(2) Under Sec. 5125, a non-Federal law or regulation may be
preempted, unless otherwise authorized by another Federal statute, if--
(i) Complying with both the non-Federal law or regulation and a
[[Page 61939]]
requirement of Federal hazardous materials transportation law or the
HMR is not possible;
(ii) The non-Federal law or regulation, as applied or enforced, is
an obstacle to accomplishing and carrying out Federal hazardous
material transportation law or the HMR; or
(iii) The non-Federal law or regulation is not substantively the
same as a provision of Federal hazardous materials transportation law
or the HMR with respect to--
(A) The designation, description, and classification of hazardous
material;
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of these documents;
(D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(E) The design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
(3) Preemption determination procedures are in subpart C of part
107 of this chapter.
(g) Penalties for noncompliance. Each person who knowingly violates
a requirement of Federal hazardous material transportation law, an
order issued under Federal hazardous material transportation law,
subchapter A of this chapter, or an exemption or approval issued under
subchapter A or C of this chapter is liable for a civil penalty of not
more than $27,500 and not less than $250 for each violation. When a
violation is a continuing one and involves transporting of hazardous
materials or causing them to be transported or shipped, each day of the
violation constitutes a separate offense. Each person who knowingly
violates a requirement in Sec. 171.2(l) of this subchapter or
willfully violates a provision of Federal hazardous material
transportation law or an order issued under Federal hazardous material
transportation law may be fined under Title 18, United States Code, or
imprisoned for not more than 5 years, or both.
0
3. Section 171.2 is revised to read as follows:
Sec. 171.2 General requirements.
(a) Each person who performs a function covered by this subchapter
must perform that function in accordance with this subchapter.
(b) Each person who offers a hazardous material for transportation
in commerce must comply with all applicable requirements of this
subchapter or an exemption, approval, or registration issued under this
subchapter or subchapter A of this chapter.
(c) Each person who performs a function covered by or having an
effect on a specification or activity prescribed in part 178, 179, or
180 of this subchapter, an approval issued under this subchapter, or an
exemption issued under subchapter A of this chapter, must perform the
function in accordance with that specification, approval, or exemption,
as appropriate.
(d) No person may offer or accept a hazardous material for
transportation in commerce or transport a hazardous material in
commerce unless that person is registered in conformance with subpart G
of part 107 of this chapter, if applicable.
(e) No person may offer or accept a hazardous material for
transportation in commerce unless the hazardous material is properly
classed, described, packaged, marked, labeled, and in condition for
shipment as required or authorized by applicable requirements of this
subchapter or an exemption, approval, or registration issued under this
subchapter or subchapter A of this chapter.
(f) No person may transport a hazardous material in commerce unless
the hazardous material is transported in accordance with applicable
requirements of this subchapter or an exemption, approval, or
registration issued under this subchapter or subchapter A of this
chapter.
(g) No person may represent, mark, certify, sell, or offer a
packaging or container as meeting the requirements of this subchapter
governing its use in the transportation of a hazardous material in
commerce unless the packaging or container is manufactured, fabricated,
marked, maintained, reconditioned, repaired, and retested in accordance
with the applicable requirements of this subchapter. No person may
represent, mark, certify, sell, or offer a packaging or container as
meeting the requirements of an exemption, approval, or registration
issued under this subchapter or subchapter A of this chapter unless the
packaging or container is manufactured, fabricated, marked, maintained,
reconditioned, repaired, and retested in accordance with the applicable
requirements of the exemption, approval, or registration issued under
this subchapter or subchapter A of this chapter. The requirements of
this paragraph apply whether or not the packaging or container is used
or to be used for the transportation of a hazardous material.
(h) The representations, markings, and certifications subject to
the prohibitions of paragraph (g) of this section include--
(1) Specification identifications that include the letters ``ICC'',
``DOT'', ``CTC'', ``MC'', or ``UN'';
(2) Exemption, approval, and registration numbers that include the
letters ``DOT'', ``EX'', ``M'', or ``R''; and
(3) Test dates associated with specification, registration,
approval, retest, or exemption markings indicating compliance with a
test or retest requirement of the HMR, or an exemption, approval, or
registration issued under the HMR or under subchapter A of this
chapter.
(i) No person may certify that a hazardous material is offered for
transportation in commerce in accordance with the requirements of this
subchapter unless the hazardous material is properly classed,
described, packaged, marked, labeled, and in condition for shipment as
required or authorized by applicable requirements of this subchapter or
an exemption, approval, or registration issued under this subchapter or
subchapter A of this chapter. Each person who offers a package
containing a hazardous material for transportation in commerce in
accordance with the requirements of this subchapter or an exemption,
approval, or registration issued under this subchapter or subchapter A
of this chapter, must assure that the package remains in condition for
shipment until it is in the possession of the carrier.
(j) No person may, by marking or otherwise, represent that a
container or package for transportation of a hazardous material is
safe, certified, or in compliance with the requirements of this chapter
unless it meets the requirements of all applicable regulations issued
under Federal hazardous material transportation law.
(k) No person may, by marking or otherwise, represent that a
hazardous material is present in a package, container, motor vehicle,
rail car, aircraft, or vessel if the hazardous material is not present.
(l) No person may alter, remove, deface, destroy, or otherwise
unlawfully tamper with any marking, label, placard, or description on a
document required by Federal hazardous material transportation law or
the regulations issued under Federal hazardous material transportation
law. No person
[[Page 61940]]
may alter, deface, destroy, or otherwise unlawfully tamper with a
package, container, motor vehicle, rail car, aircraft, or vessel used
for the transportation of hazardous materials.
(m) No person may falsify or alter an exemption, approval,
registration, or other grant of authority issued under this subchapter
or subchapter A of this chapter. No person may offer a hazardous
material for transportation or transport a hazardous material in
commerce under an exemption, approval, registration or other grant of
authority issued under this subchapter or subchapter A of this chapter
if such grant of authority has been altered without the consent of the
issuing authority. No person may represent, mark, certify, or sell a
packaging or container under an exemption, approval, registration or
other grant of authority issued under this subchapter or subchapter A
of this chapter if such grant of authority has been altered without the
consent of the issuing authority.
0
4. In Sec. 171.8, the definition for ``sheathing'' is removed;
definitions for ``carrier,'' ``person,'' and ``private track or private
siding,'' are revised; and definitions for ``Administrator,''
``Associate Administrator,'' ``commerce,'' ``consignee,'' ``hazmat,''
``HMR,'' ``loading incidental to movement,'' ``movement,'' ``pre-
transportation function.'' ``Secretary,'' ``storage incidental to
movement,'' ``transloading,'' ``transportation or transport,''
``transportation facility,'' and ``unloading incidental to movement''
are added in alphabetical order, to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Administrator means the Administrator, Research and Special
Programs Administration.
* * * * *
Associate Administrator means the Associate Administrator for
Hazardous Materials Safety, Research and Special Programs
Administration.
* * * * *
Carrier means a person who transports passengers or property in
commerce by rail car, aircraft, motor vehicle, or vessel.
* * * * *
Commerce means trade or transportation in the jurisdiction of the
United States within a single state; between a place in a state and a
place outside of the state; or that affects trade or transportation
between a place in a state and place outside of the state.
* * * * *
Consignee means the person or place shown on a shipping document,
package marking, or other media as the location to which a carrier is
directed to transport a hazardous material.
* * * * *
Hazmat means a hazardous material.
* * * * *
HMR means the Hazardous Materials Regulations, Parts 171 through
180 of this chapter.
* * * * *
Loading incidental to movement means loading by carrier personnel
or in the presence of carrier personnel of packaged or containerized
hazardous material onto a transport vehicle, aircraft, or vessel for
the purpose of transporting it, including the loading, blocking and
bracing a hazardous materials package in a freight container or
transport vehicle, and segregating a hazardous materials package in a
freight container or transport vehicle from incompatible cargo. For a
bulk packaging, loading incidental to movement means filling the
packaging with a hazardous material for the purpose of transporting it.
Loading incidental to movement includes transloading.
* * * * *
Movement means the physical transfer of a hazardous material from
one geographic location to another by rail car, aircraft, motor
vehicle, or vessel.
* * * * *
Person means an individual, corporation, company, association,
firm, partnership, society, joint stock company; or a government,
Indian tribe, or authority of a government or tribe offering a
hazardous material for transportation in commerce or transporting a
hazardous material to support a commercial enterprise. This term does
not include the United States Postal Service or, for purposes of 49
U.S.C. 5123 and 5124, a Department, agency, or instrumentality of the
government.
* * * * *
Pre-transportation function means a function specified in the HMR
that is required to assure the safe transportation of a hazardous
material in commerce, including--
(1) Determining the hazard class of a hazardous material.
(2) Selecting a hazardous materials packaging.
(3) Filling a hazardous materials packaging, including a bulk
packaging.
(4) Transloading a hazardous material at an intermodal transfer
facility from one bulk packaging to another bulk packaging for purposes
of continuing the movement of the hazardous material in commerce.
(5) Securing a closure on a filled or partially filled hazardous
materials package or container or on a package or container containing
a residue of a hazardous material.
(6) Marking a package to indicate that it contains a hazardous
material.
(7) Labeling a package to indicate that it contains a hazardous
material.
(8) Preparing a shipping paper.
(9) Providing and maintaining emergency response information.
(10) Reviewing a shipping paper to verify compliance with the HMR
or international equivalents.
(11) For each person importing a hazardous material into the United
States, providing the shipper with timely and complete information as
to the HMR requirements that will apply to the transportation of the
material within the United States.
(12) Certifying that a hazardous material is in proper condition
for transportation in conformance with the requirements of the HMR.
(13) Loading, blocking, and bracing a hazardous materials package
in a freight container or transport vehicle.
(14) Segregating a hazardous materials package in a freight
container or transport vehicle from incompatible cargo.
(15) Selecting, providing, or affixing placards for a freight
container or transport vehicle to indicate that it contains a hazardous
material.
* * * * *
Private track or Private siding means: (i) Track located outside of
a carrier's right-of-way, yard, or terminals where the carrier does not
own the rails, ties, roadbed, or right-of-way, or
(ii) Track leased by a railroad to a lessee, where the lease
provides for, and actual practice entails, exclusive use of that
trackage by the lessee and/or a general system railroad for purpose of
moving only cars shipped to or by the lessee, and where the lessor
otherwise exercises no control over or responsibility for the trackage
or the cars on the trackage.
* * * * *
Secretary means the Secretary of Transportation.
* * * * *
Storage incidental to movement means storage of a transport
vehicle, freight container, or package containing a hazardous material
by any person between the time that a carrier takes physical possession
of the hazardous material for the purpose of transporting it until the
package containing the hazardous material is physically
[[Page 61941]]
delivered to the destination indicated on a shipping document, package
marking, or other medium, or, in the case of a private motor carrier,
between the time that a motor vehicle driver takes physical possession
of the hazardous material for the purpose of transporting it until the
driver relinquishes possession of the hazardous material at its
intended destination and is no longer responsible for performing
functions subject to the HMR with respect to that particular package.
Storage incidental to movement includes rail cars containing hazardous
materials, even if they have been delivered to the destination
indicated on the shipping document, except those stored on private
track.
* * * * *
Transloading means the transfer of a hazardous material at an
intermodal transfer facility from one bulk packaging to another for
purposes of continuing the movement of the hazardous material in
commerce.
Transportation or transport means the movement of property and
loading, unloading, or storage incidental to that movement.
* * * * *
Unloading incidental to movement means removing a packaged or
containerized hazardous material from a transport vehicle, aircraft, or
vessel or, for a bulk packaging, emptying a hazardous material from the
bulk packaging after the hazardous material has been delivered to the
consignee and prior to the delivering carrier's departure from the
consignee's facility or premises or, in the case of a private motor
carrier, while the driver of the motor vehicle from which the hazardous
material is being unloaded immediately after movement is completed is
present during the unloading operation. (Emptying a hazardous material
from a bulk packaging while the packaging is on board a vessel is
subject to separate regulation as delegated at Sec. 1.46(t) of this
title.) Unloading incidental to movement includes transloading.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
5. The authority citation for Part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.45 and 1.53
Sec. 173.1 [Amended]
0
6. In Sec. 173.1, paragraph (c) is removed and paragraph (d) is
redesignated as new paragraph (c).
0
7. Section 173.30 is revised to read as follows:
Sec. 173.30 Loading and unloading of transport vehicles.
A person who is subject to the loading and unloading regulations in
this subchapter must load or unload hazardous materials into or from a
transport vehicle or vessel in conformance with the applicable loading
and unloading requirements of parts 174, 175, 176, and 177 of this
subchapter.
0
8. Section 173.31 is amended by adding new paragraph (g) to read as
follows:
Sec. 173.31 Use of tank cars.
* * * * *
(g) Tank car loading and unloading. When placed for loading or
unloading and before unsecuring any closure, a tank car must be
protected against movement or coupling as follows:
(1) The unloader must secure access to the track to prevent entry
by other rail equipment, including motorized service vehicles. Derails,
lined and blocked switches, portable bumper blocks, or other equipment
that provides an equivalent level of security may be used to satisfy
this requirement.
(2) Caution signs must be placed between the rails to give
necessary warning to persons approaching the car(s) from the open end
of a siding and must be left up until after all closures are secured
and the cars are in proper condition for transportation. The signs must
be of a durable material, blue in color, rectangular in shape, at least
30.48 cm (12 inches) high by 38.10 cm (15 inches) wide, and bear the
word ``STOP.'' The word ``STOP'' must appear in white letters at least
10.16 cm (4 inches) high. Additional words, such as ``Tank Car
Connected'' or ``Crew at Work,'' may also appear in white letters under
the word ``STOP.''
(3) At least one wheel on the tank car must be blocked against
movement in both directions, and the hand brakes must be set. If
multiple tank cars are coupled together, sufficient hand brakes must be
set and wheels blocked to prevent movement in both directions.
Sec. Sec. 173.3, 173.6, 173.24a, 173.62, 173.166, 173.171, 173.181,
173.185, 173.189, 173.219, 173.308, 173.335, and 173.416 [Amended]
0
9. In addition, in Part 173, the word ``movement'' is revised to read
``shifting'' in each of the following places:
0
a. Section 173.3(c)(2);
0
b. Section 173.6(b)(1) and (b)(3);
0
c. Section 173.24a(a)(3);
0
d. Section 173.166(e)(4)(iii);
0
f. Section 173.171 (d);
0
g. Section 173.181(a)(2);
0
h. Section 173.189(b) and (d)(4)(i);
0
i. Section 173.335(c); and
0
j. Section 173.416(f).
0
10. In addition, in Part 173, the term ``freedom of movement'' is
revised to read ``free moving'' in the table in Sec. 173.62(c) under
Packing Instruction 131, each time it appears.
Sec. Sec. 173.185, 173.219, and 173.308 [Amended]
0
11. In addition, in Part 173, the word ``movement'' is revised to read
``moving'' in each of the following places:
0
a. Section 173.185(e)(4), (g)(1), and (g)(2);
0
b. Section 173.219(b)(3); and
0
c. Section 173.308(a)(4).
PART 174--CARRIAGE BY RAIL
0
12. The authority citation for Part 174 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR Part 1.53
0
13. In Sec. 174.67, paragraphs (a)(1) through (a)(3) are revised,
paragraph (a)(4) is redesignated as paragraph (a)(6), new paragraphs
(a)(4) and (a)(5) are added, paragraphs (i) and (j) are revised,
paragraph (k) is redesignated paragraph (l), and a new paragraph (k) is
added, to read as follows:
Sec. 174.67 Tank car unloading.
(a) For transloading operations, the following rules must be
observed:
(1) Unloading operations must be performed by reliable persons
properly instructed in unloading hazardous materials and made
responsible for careful compliance with this part.
(2) The unloader must apply the handbrake and block at least one
wheel to prevent movement in any direction. If multiple tank cars are
coupled together, sufficient hand brakes must be set and wheels blocked
to prevent movement in both directions.
(3) The unloader must secure access to the track to prevent entry
by other rail equipment, including motorized service vehicles. Derails,
lined and blocked switches, portable bumper blocks, or other equipment
that provides an equivalent level of security may be used to satisfy
this requirement.
(4) The unloader must place caution signs on the track or on the
tank cars to warn persons approaching the cars from the open end of the
track that a tank car is connected to unloading equipment. The caution
signs must be of metal or other durable material, rectangular, at least
30 cm. (12 inches) high by 38 cm. (15 inches) wide, and bear the word,
``STOP''. The word ``STOP'' must
[[Page 61942]]
appear in letters at least 10 cm. (3.9 inches) high. The letters must
be white on a blue background. Additional words, such as ``Tank Car
Connected'' or ``Crew at Work'' may also appear.
(5) The unloading facility operator must maintain written safety
procedures (such as those it may already be required to maintain
pursuant to the Department of Labor's Occupational Safety and Health
Administration requirements in 29 CFR 1910.119 and 1910.120) in a
location where they are immediately available to hazmat employees
responsible for tank car unloading.
* * * * *
(i) Throughout the entire period of unloading and while a tank car
has unloading equipment attached, the facility operator must assure
that the tank car is:
(1) Attended by a designated hazmat employee who is physically
present and who has an unobstructed view of the unloading operation; or
(2) Monitored by a signaling system (e.g., video system, sensing
equipment, or mechanical equipment) that is observed by a designated
hazmat employee located either in the immediate area of the tank car or
at a remote location within the facility, such as a control room. The
signaling system must--
(i) Provide a level of surveillance equivalent to that provided in
subparagraph (1) of this paragraph (i); and
(ii) Provide immediate notification to a designated hazmat employee
of any system malfunction or other emergency so that, if warranted,
responsive actions may be initiated immediately.
(j) Attendance is not required when piping is attached to a top
outlet of a tank car, equipped with a protective housing required under
Sec. 179.100-12 of this subchapter, for discharge of lading under the
following conditions:
(1) All valves are tightly closed.
(2) The piping is not connected to hose or other unloading
equipment and is fitted with a cap or plug of appropriate material and
construction.
(3) The piping extends no more than 15.24 centimeters (6 inches)
from the outer edge of the protective housing.
(k) In the absence of the unloader, a tank car may stand with
unloading connections attached when no product is being transferred
under the following conditions:
(1) The facility operator must designate an employee responsible
for on-site monitoring of the transfer facility. The designated
employee must be made familiar with the nature and properties of the
product contained in the tank car; procedures to be followed in the
event of an emergency; and, in the event of an emergency, have the
ability and authority to take responsible actions.
(2) When a signaling system is used in accordance with paragraph
(i) of this section, the system must be capable of alerting the
designated employee in the event of an emergency and providing
immediate notification of any monitoring system malfunction. If the
monitoring system does not have self-monitoring capability, the
designated employee must check the monitoring system hourly for proper
operation.
(3) The tank car and facility shutoff valves must be secured in the
closed position.
(4) Brakes must be set and wheels locked in accordance with
paragraph (a)(2) of this section.
(5) Access to the track must be secured in accordance with
paragraph (a)(3) of this section.
* * * * *
Sec. Sec. 174.110, 174.112, and 174.115 [Amended]
0
14. In addition, in Part 174, the word ``movement'' is revised to read
``shifting'' in each of the following places:
0
a. Section 174.110;
0
b. Section 174.112(b) and (c)(3) each time it appears; and
0
c. Section 174.115(a) and (b)(3) each time it appears.
PART 175--CARRIAGE BY AIRCRAFT
0
15. The authority citation for Part 175 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 175.81 [Amended]
0
16. In Sec. 175.81(a), the word ``movement'' is revised to read
``shifting''.
PART 176--CARRIAGE BY VESSEL
0
17. The authority citation for Part 176 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. Sec. 176.69, 176.76, 176.78, 176.93, 176.116, 176.132, 176.168,
and 176.200 [Amended]
0
18. In Part 176, the word ``movement'' is revised to read ``shifting''
in each of the following places:
0
a. Section 176.69(d);
0
b. Section 176.76(a)(2) each time it appears;
0
c. Section 176.116(d);
0
e. Section 176.132(c); and
0
f. Section 176.200(b) and (c) each time it appears.
0
19. In Part 176, the word ``movement'' is revised to read ``motion'' in
Sec. 176.93(a)(1).
0
20. In Part 176, the word ``movement'' is revised to read ``moving'' in
each of the following places:
0
a. Section 176.78(f)(8); and
0
b. Section 176.168(g).
PART 177--CARRIAGE BY PUBLIC HIGHWAY
0
21. The authority citation for Part 177 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. Sec. 177.834, 177.840, and 177.870 [Amended]
0
22. In Part 177, the word ``movement'' is revised to read ``shifting''
in each of the following places:
0
a. Section 177.834(a);
0
b. Section 177.840(b)(3); and
0
c. Section 177.870(e).
PART 178--SPECIFICATIONS FOR PACKAGINGS
0
23. The authority citation for Part 178 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. Sec. 178.601, 178.704 [Amended]
0
24. In Part 178, the word ``movement'' is revised to read ``moving'' in
Sec. 178.601(g)(1)(i)(D), (g)(1)(ii), and (g)(4)(v).
0
25. In Part 178, the word ``movement'' is revised to read ``motion'' in
Sec. 178.704(d)(3).
Issued in Washington, DC on October 22, 2003 under authority
delegated in 49 CFR Part 1.
Elaine E. Joost,
Acting Deputy Administrator.
[FR Doc. 03-27057 Filed 10-29-03; 8:45 am]
BILLING CODE 4910-60-P