[Federal Register: October 30, 2003 (Volume 68, Number 210)]
[Rules and Regulations]
[Page 61905-61942]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc03-19]
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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
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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 establis |
