Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 57245

The action is taken to respond to a 

Request for Extension of Time, and a 

Statement in Support of Request for 

Extension of Time, and a Statement in 

Support of Request for Extension of 

Time.

DATES: Comments are due on or before 

October 27, 2004, and reply comments 

are due on or before November 30, 2004.

ADDRESSES: Federal Communications 

Commission, Portals II, 445 12th Street, 

SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Debra Sabourin, Industry Analysis 

Division, Media Bureau, (202) 418–2330 

or Debra.Sabourin@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Order, 

DA–04–2996, in MB Docket No. 04–256, 

released on September 16, 2004. The 

full text of this Order is available for 

inspection and copying during regular 

business hours in the FCC Reference 

Center, 445 Twelfth Street, SW., Room 

CY–A257, Portals II, Washington, DC 

20554, and may also be purchased from 

the Commission’s copy contractor, Best 

Company and Printing, Inc., Room CY–

B402, telephone (800) 378–3160, http:

//www.bcpiweb.com. To request 

materials in accessible formats for 

people with disabilities (electronic files, 

large print, audio format and Braille), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at (202) 418–0531 (voice), 418–

7365 (TTY). 

On August 2, 2004, the Media Bureau 

(‘‘Bureau’’) released a Notice of 

Proposed Rule Making (‘‘NPRM’’) 

seeking comment on whether to 

attribute certain TV Joint Sales 

Agreements (‘‘JSAs’’) for purposes of 

applying the broadcast ownership rules. 

On August 26, 2004, a summary of the 

Notice was published in the Federal 

Register, establishing deadlines for the 

filing of comments and reply comments 

of September 27, 2004, and October 12, 

2004, respectively. (Rules and Policies 

Concerning Attribution of Joint Sales 

Agreements in Local Television Markets,

69 FR 52464, August 26, 2004). 

On September 13, 2004, Paxson 

Communications Corporation 

(‘‘Paxson’’) filed a Request for Extension 

of Time to file comments and reply 

comments. Paxson asks that the 

deadline for filing comments be 

extended to October 27, 2004, and the 

deadline for filing reply comments be 

extended to November 30, 2004. It 

asserts that, as owner and operator of 61 

full power television stations and owner 

of the PaxTV broadcast network, it is 

party to a large number of JSAs. Paxson 

notes that the Commission asked parties 

to JSAs to gather and provide 

information concerning the terms and 

conditions of those JSAs, as well as their 

public interest benefits. Paxson says it 

needs more time to prepare its 

comments and respond to the factual 

and legal issues raised in this 

proceeding given the number of other 

open Commission proceedings on 

broadcasting in which it is involved. 

According to Paxson, an extension will 

enable it to prepare and present a more 

thorough factual record and analysis of 

the legal issues in this proceeding. On 

September 14, 2004, the National 

Association of Broadcasters (‘‘NAB’’) 

filed a ‘‘Statement in Support of Request 

for Extension of Time’’ in support of 

Paxson’s motion for the same reasons, 

arguing that an extension will serve the 

public interest by allowing for a more 

complete record. 

We conclude that Paxson and NAB 

have stated good cause to justify 

granting an extension of the deadlines 

for the filing of comments and reply 

comments in this proceeding. Granting 

the extensions will serve the public 

interest in gathering a full record on the 

factual and legal issues raised in the 

Notice, including the information 

sought on the terms and conditions of 

existing TV JSAs. The new deadline to 

file comments will be October 27, 2004, 

and the new deadline to file reply 

comments will be November 30, 2004.

Federal Communications Commission. 

Thomas L. Horan, 

Legal Advisor, Media Bureau.

[FR Doc. 04–21504 Filed 9–23–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Research and Special Programs 

Administration 

49 CFR Part 171 

[Docket No. RSPA–04–19173 (HM–223A)] 

RIN 2137–AE04 

Applicability of the Hazardous 

Materials Regulations to ‘‘Persons 

Who Offer’’ Hazardous Materials for 

Transportation in Commerce

AGENCY: Research and Special Programs 

Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: RSPA is proposing to add to 

the Hazardous Materials Regulations a 

definition for ‘‘person who offers or 

offeror’’ in order to codify long-standing 

interpretations on the applicability of 

those regulations.

DATES: Submit your comments on or 

before November 23, 2004.

ADDRESSES: You may submit comments 

by any of the following methods: 

• U.S. Government Regulations.gov 

Web Site: http://www.regulations.gov.

Use the search tools to find this 

rulemaking and follow the instructions 

for submitting comments. 

• DOT Docket Management System 

Web site: http://dms.dot.gov. Click on 

‘‘Comment/Submissions’’ and follow 

the instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• U.S. Mail or Private Delivery 

Service: Docket Management System, 

U.S. Department of Transportation, 400 

Seventh Street, SW., Room PL–402, 

Washington, DC 20590–0001. 

• Hand Delivery: To the Docket 

Management System, Room PL–401, on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Instructions: You must include the 

agency name and docket number, 

RSPA–04–19173 (HM–223A) or the 

Regulatory Identification Number (RIN) 

for this rulemaking at the beginning of 

your comment. Note that all comments 

received will be posted without change 

to the DOT Docket Management System 

Web site: http://dms.dot.gov, including 

any personal information provided. 

Please see the Privacy Act section of this 

document.

FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, Office of the Chief 

Counsel, (202) 366–4400, Research and 

Special Programs Administration, U.S. 

Department of Transportation, 400 

Seventh Street, SW., Washington, DC 

20590–0001.

SUPPLEMENTARY INFORMATION: 

I. Background 

The 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, Public 

Law 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.’’ The 

HMR apply to a person:

57246 Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 

(i) Transporting hazardous materials in 

commerce; 

(ii) Causing hazardous material to be 

transported in commerce; or

(iii) Manufacturing, fabricating, marking, 

maintaining, reconditioning, repairing, or 

testing a packaging or a container that is 

represented, marked, certified, or sold by that 

person as qualified for use in transporting 

hazardous material in commerce.

49 U.S.C. 5103(b)(1)(A).

Activities governed by the HMR 

include ‘‘[t]he offering of hazardous 

materials for transportation and 

transportation of hazardous materials in 

interstate, intrastate, and foreign 

commerce by rail car, aircraft, motor 

vehicle, and vessel * * *’’ 49 CFR 

171.1(a)(1). In this manner, the HMR 

have used the term ‘‘offering’’ to 

describe the process of ‘‘causing 

hazardous material to be transported,’’

and numerous provisions in the HMR 

impose responsibilities on a ‘‘person 

who offers’’ (e.g., 49 CFR 107.600(a) 

(registration), 172.200(a) (shipping 

papers), 172.300(a) (package marking), 

172.400(a) (hazard warning labels), 

172.500(a) (placards), 172.600(c) 

(emergency response information), and 

173.1(b) (general training requirement)). 

On October 30, 2003, we published a 

final rule under Docket HM–223 to 

clarify the applicability of the HMR to 

functions and operations related to the 

transportation of hazardous materials in 

commerce. 68 FR 61906, revision of 

effective date, 69 FR 30588 (May 28, 

2004), administrative appeals and 

judicial review pending in American 

Chemistry Council v. U.S. Dep’t of 

Transp., No. 03–1456 (D.C. Cir.). The 

provisions of the HM–223 final rule are 

effective January 1, 2005. 

The HM–223 final rule revised § 171.1 

of the HMR to incorporate language to 

clarify the applicability of the 

regulations to persons who perform 

specific functions. The revised 

§ 171.1(b) states that the HMR apply to 

‘‘each person who offers a hazardous 

material for transportation in commerce, 

causes a hazardous material to be 

transported in commerce, or transports 

a hazardous material in commerce and 

who performs or is responsible for 

performing a pre-transportation function 

***’’ 68 FR 61937. The first two 

subsections of § 171.2, as revised in the 

HM–223 final rule, provide that:

(a) Each person who performs a function 

covered by this subchapter must perform that 

function in accordance with this subchapter. 

(b) Each person who offers a hazardous 

material for transportation in commerce must 

comply with all applicable requirements of 

this subchapter or an exemption, approval, or 

registration issued under this subchapter or 

subchapter A of this chapter.

68 FR 61939. 

The HMR do not define the terms 

‘‘offer’’ or ‘‘person who offers.’’ In 1990, 

RSPA published the text of a 1988 letter 

interpretation stating that, in the HMR,

responsibilities generally are placed on 

‘‘offerors’’ for performance of the functions 

associated with ‘‘offering’’ hazardous 

materials for transportation * * * 

The key issue in determining the 

regulatory responsibilities under the 

requirements in [the HMR] is determining 

which parties perform which functions. This 

involves a case-by-case determination based 

upon all relevant facts. Any person who 

performs, attempts to perform, or, under the 

circumstances involved, is contractually or 

otherwise responsible to perform any of the 

functions assigned by the HMR to the offeror, 

is legally responsible under the HMR for the 

proper performance of those functions. * * * 

In many cases, more than one person may be 

responsible for performing, or attempting to 

perform, ‘‘offeror’’ functions, and each such 

person may be held jointly and severally 

liable for all or some of the ‘‘offeror’’

responsibilities under the HMR.

55 FR 6758, 6760–61 (Feb. 26, 1990).

In a 1992 interpretation, RSPA further 

explained that:

While hazardous materials ownership and 

contractual assignment of functions are 

factors relevant to the determination of 

‘‘offeror’’ status, they are not conclusive. 

* * * Factors considered in determining a 

party’s ‘‘offeror’’ status include functions 

actually performed or undertaken by a party, 

and functions which the party contracts to 

perform. Past practices of the parties are also 

considered because they provide evidence of 

the parties’ division of functions. 

‘‘Offeror’’ functions include, but are not 

limited to, selection of the packaging for a 

regulated material, physical transfer of 

hazardous materials to a carrier, classifying 

hazardous materials, preparing shipping 

papers, reviewing shipping papers to verify 

compliance with the HMR or their 

international equivalents, signing hazardous 

materials certifications on shipping papers, 

placing hazardous materials markings or 

placards on vehicles or packages, and 

providing placards to a carrier.

57 FR 48739, 48740 (Oct 28, 1992).

In the NPRM issued under Docket 

HM–223 (66 FR 32420; June 14, 2001), 

we proposed to define ‘‘offer a 

hazardous material’’ to mean ‘‘perform, 

attempt to perform, or is required to 

perform a pre-transportation function 

under the HMR.’’ 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 specified in the HMR that is 

required to assure the safe 

transportation of a hazardous material 

in commerce * * *’’ 66 FR 32447. The 

intent of this proposal was ‘‘to clarify 

that, consistent with Federal hazmat law 

[and our prior interpretations], the HMR 

apply to functions performed to prepare 

hazardous material for transportation in 

commerce as well as the actual 

transportation of hazardous materials in 

commerce.’’ 68 FR 61911. 

Comments to the HM–223 NPRM 

pointed out that this proposed 

definition could create a circular result, 

because a shipper might be considered 

to offer a hazardous material ‘‘when 

performing pre-transportation functions 

that [must be performed] prior to 

offering a hazardous material for 

transportation.’’ Id. Accordingly, in the 

final rule in HM–223, ‘‘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,’’ and we did not 

include a definition for ‘‘offer a 

hazardous material.’’ Id. We recognized 

that an ‘‘offering’’ is not normally 

considered complete until ‘‘the 

hazardous material is staged for loading 

and the consignor or his agent signs the 

shipping paper,’’ at which time an 

offeror should be ‘‘able to demonstrate 

compliance with all applicable pretransportation requirements.’’ Id. We 

also indicated that, ‘‘[e]ven in the 

absence of a signed shipping paper, a 

shipper may be responsible for assuring 

compliance with specific pretransportation requirements if other 

factors indicate that a particular pretransportation activity has been 

completed.’’ 68 FR 61912. Accordingly, 

RSPA stated that the agencies enforcing 

the Federal hazardous material 

transportation law and the HMR

will continue to exercise our statutory 

authority to inspect for compliance with the 

HMR requirements applicable to pretransportation 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 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).

Id.

This discussion in the preamble to the 

HM–223 final rule makes it clear that 

RSPA has not changed its long-standing 

position that any person who performs 

a regulated ‘‘pre-transportation’’

function comes within the concept of a 

‘‘person who offers’’ as that and similar 

terms are used in the HMR, in the 

manner explained in the prior 

interpretations. In response to concerns 

Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 57247

regarding entities such as freight 

forwarders, brokers, and non-vessel 

operating common carriers, who may 

have ‘‘no physical involvement with the 

shipment,’’ we made it clear that the 

HMR apply to persons who perform pretransportation functions when they 

make arrangements for a shipment, but 

that, except for errors made by others 

about which they ‘‘knew or should have 

known,’’ they may rely on ‘‘information 

provided by the original shipper.’’ 68 FR 

61911. The principle of reasonable 

reliance applies whenever there is more 

than one ‘‘person who offers’’ (i.e., 

multiple offerors), and to all persons 

who participate in the transportation of 

hazardous materials. Accordingly, a 

freight forwarder, broker, non-vessel 

operating common carrier, or carrier 

may not accept, continue to transport, or 

forward or transfer a hazardous material 

to a subsequent carrier if it becomes 

aware or, in the exercise of reasonable 

care, should be aware that the shipment 

does not comply with the HMR.

II. NPRM Proposal 

In this NPRM, we propose to define 

‘‘person who offers’’ or ‘‘offeror’’ to 

mean any person who performs, or is 

responsible for performing, any of the 

pre-transportation functions required 

under the HMR for transportation of a 

hazardous material; tenders or makes a 

hazardous material available to a carrier 

for transportation in commerce; or both 

performs, or is responsible for 

performing, pre-transportation functions 

and tenders or makes a hazardous 

material available to a carrier for 

transportation. Under the proposed 

definition, a carrier that transfers, 

interlines, or interchanges hazardous 

materials to another carrier for 

continued transportation is not an 

offeror when it does not perform any 

pre-transportation functions. In 

addition, § 171.2 would be amended to 

make explicit that:

—There may be more than one offeror 

of a shipment of hazardous materials 

—Each offeror is responsible for 

complying with the requirements of 

the HMR with respect to any pretransportation function that it 

performs or is required to perform. 

—For a shipment involving more than 

one offeror, each offeror may rely on 

information provided by another 

offeror, unless the offeror knows or, in 

the exercise of reasonable care, should 

know that the information is 

incorrect. In a similar manner, a 

carrier may rely on information it 

receives from an offeror or a prior 

carrier, unless the carrier knows or, in 

the exercise of reasonable care, should 

know that the information is 

incorrect.

These proposed definitions are 

consistent with the prior interpretations 

published in the Federal Register and 

with informal letters of clarification we 

have issued on this subject. (See, for 

example, the April 13, 1992 letter to 

Envirosafe Services, Inc.; June 27, 1996 

letter to ‘‘K’’ Line America, Inc.; May 21, 

1999 letter to CH2MHILL; May 30, 2000 

letter to Mr. Todd Nash; January 11, 

2001 letter to Corso Biomedical 

Consulting; July 17, 2002 letter to 

Hawks Logistics; April 22, 2003 letter to 

Henderson and Walton Women’s 

Center, P.C.; February 10, 2004 letter to 

Hyundai America Shipping Agency, 

Inc.) The proposed definitions 

incorporate our long-standing 

administrative determinations that any 

person who performs, attempts to 

perform, or is responsible for 

performing pre-transportation functions 

under the HMR is considered to be a 

‘‘person who offers’’ (or an ‘‘offeror’’) for 

purposes of the HMR requirements 

applicable to that function and that 

there may be more than one person 

responsible for performing pretransportation functions for a hazardous 

materials shipment. 

In accordance with the past 

interpretations we have issued on this 

subject, the proposed definition 

recognizes that, for a given hazardous 

materials shipment, the persons who 

offer the shipment for transportation 

include both those who perform pretransportation functions and those who 

transfer the material to a carrier for 

transportation. For a given hazardous 

materials shipment, there may be more 

than one person acting as an offeror of 

the shipment, either because that person 

performs one or more pre-transportation 

functions or because that person makes 

the material available to a carrier for 

transportation. The definition further 

recognizes that there is one person with 

overall responsibility for ensuring that 

the shipment complies with applicable 

HMR requirements. Generally, that 

person will be responsible for the 

certification on the shipping paper that 

indicates that the shipment has been 

properly classed, described, packaged, 

marked, and labeled, and is in proper 

condition for transportation when 

tendered to the initial carrier. 

Note that, while a person who 

performs a pre-transportation function 

is considered to be an offeror, that 

person is not necessarily responsible for 

the proper performance of all pretransportation functions associated with 

a particular shipment. As stated above, 

the person who signs the shipper’s 

certification is responsible for assuring 

that all applicable regulatory 

requirements are met; persons who 

perform one or more pre-transportation 

functions for the shipment are 

responsible only for the performance of 

the functions they perform. For 

example, a hospital may negotiate a 

contract with a carrier for the carrier to 

perform pre-transportation functions for 

shipments of regulated medical waste; 

the carrier may provide appropriate 

packaging to the hospital, close the 

filled packagings, and affix appropriate 

labels. If a hospital official signs the 

shipper certification for the shipment, 

the hospital is the person who 

completes the process of offering the 

shipment for transportation and is 

responsible for assuring that the 

contractor performed the pretransportation functions correctly; the 

contractor is also an offeror for purposes 

of the HMR and will be held responsible 

for those functions that it performed or 

was obligated to perform under contract 

to the hospital. 

As we stated in the 1992 

interpretation, a freight forwarder who 

arranges for the transportation of a 

hazardous materials shipment, but 

performs no pre-transportation 

functions associated with that shipment 

is not an offeror for purposes of the 

HMR. Moreover, a carrier that does not 

perform a pre-transportation function is 

not a ‘‘person who offers’’ as that term 

is used in the HMR. Thus, the 

interlining of a package or freight 

container of hazardous materials from 

one carrier to another for further 

transportation does not make the first 

carrier an offeror if it does not perform 

any pre-transportation function. (See 

June 2, 1995 letter to Crowley American 

Transport, Inc.) 

However, the proposed definitions 

recognize that a carrier or other entity 

may be required to perform certain pretransportation functions in order to 

facilitate or continue the transportation 

of a hazardous material in commerce. If 

a carrier or freight forwarder performs a 

pre-transportation function, the carrier 

or freight forwarder is an offeror for 

purposes of the HMR and must perform 

the function in accordance with 

applicable regulatory requirements. For 

example, a carrier or freight forwarder 

may prepare a shipping paper for a 

hazardous materials shipment that will 

be consolidated or combined with other 

freight or transferred from one carrier to 

another during the course of its 

transportation in commerce. The carrier 

or freight forwarder must prepare the 

shipping paper in accordance with 

applicable requirements, but the person 

preparing the shipping paper may rely 

57248 Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 

on information provided by the original 

shipper for the preparation of the new 

shipping paper (e.g., the classification of 

the material, the compatibility of the 

material with the packaging being used, 

or the emergency response telephone 

number), so long as that person 

exercises due care. For example, a 

carrier or freight forwarder may not rely 

on an emergency response telephone 

number provided by a preceding offeror 

when it is ‘‘aware (or should be aware) 

of facts indicating the emergency 

response telephone number is not 

operative and does not meet the 

requirements of [49 CFR] 172.604(b).’’

(See February 10, 2004 letter to Hyundai 

America Shipping Agency, Inc.; June 27, 

1996 letter to ‘‘K’’ Line America, Inc.) 

Similarly, the carrier or freight 

forwarder may rely on the original 

shipper’s certification when recertifying 

the shipment for subsequent 

transportation unless objective factors 

are present that suggest that the 

condition of the shipment has changed 

since it was originally offered for 

transportation. (See June 2, 1995 letter 

to Crowley American Transport, Inc.; 

April 5, 2000 letter to Cosco North 

America, Inc.) 

The definition of ‘‘person who offers’’

includes a person who makes a 

hazardous material available to a carrier 

for transportation in commerce when 

pre-transportation functions that should 

have been performed under the HMR 

were not, in fact, performed. Thus, a 

person who tenders undeclared 

hazardous materials for transportation is 

offering the hazardous material for 

transportation even though no pretransportation functions required for the 

shipment were performed. We will 

continue to exercise our authority to 

take appropriate enforcement action 

when we discover that a pretransportation function has been 

performed in a manner that does not 

comply with the HMR or has not been 

performed at all. 

We note concerning undeclared 

shipments that a final rule published on 

May 26, 2004, under Docket No. HM–

229 (69 FR 30114) includes a definition 

for ‘‘undeclared hazardous material’’

that is consistent with the definitions 

proposed in this NPRM. The May 26, 

2004 final rule defines ‘‘undeclared 

hazardous material’’ to mean a 

hazardous material that is: (1) Subject to 

any of the hazard communication 

requirements in Subparts C, D, E, and F 

of Part 172 of the HMR or an alternative 

marking requirement in Part 173; and 

(2) offered for transportation in 

commerce without any clear indication 

to the person accepting the hazardous 

material for transportation that a 

hazardous material is present. 

The definition of ‘‘person who offers’’

also covers an entity that transports its 

own hazardous materials. For example, 

a company that uses its own motor 

vehicles to transport its own hazardous 

material performs pre-transportation 

functions required under the HMR and 

tenders the hazardous material to itself 

for transportation. Similarly, an air 

carrier transporting company material 

(COMAT) both offers and accepts 

hazardous materials for transportation. 

In this regard, note that, in some 

situations, a company may offer a 

hazardous material to itself for 

transportation by private carriage and 

then may re-offer the hazardous material 

to a succeeding carrier. The company is 

an offeror as we propose to define that 

term in this NPRM both when it offers 

the hazardous material to itself and 

when it reoffers the hazardous material 

to a subsequent carrier.

An airline passenger who transports 

hazardous materials in carry-on or 

checked baggage is included in the 

definition of a ‘‘person who offers’’ as 

proposed in this NPRM. On February 

28, 2003, we published an interpretation 

addressing hazardous materials in carryon and checked baggage (68 FR 9735). 

The interpretation noted that 

‘‘[h]azardous materials in carry-on and 

checked baggage are subject to the HMR 

when offered for transportation in 

commerce’’ (68 FR 9736). The 

interpretation identifies, for purposes of 

the HMR, the point at which an airline 

passenger offers a hazardous material in 

carry-on or checked baggage. In 

accordance with the interpretation, a 

passenger in control of carry-on baggage 

(including items on his/her person) 

containing a hazardous material ‘‘offers 

and represents that the baggage is fit for 

transportation by aircraft when the 

passenger tenders the baggage to 

screening personnel at an airport 

security checkpoint or otherwise 

attempts to proceed through the 

checkpoint with the hazardous 

materials on his/her person.’’ A 

passenger offers checked baggage 

containing a hazardous material ‘‘at the 

point the passenger presents the baggage 

for acceptance by the carrier’’ (68 FR 

9737). Nothing in this NPRM is 

intended to change the determinations 

made in the February 28, 2003 

interpretation. 

III. Regulatory Analyses and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

This NPRM is published under the 

authority of 49 U.S.C. 5103(b), which 

authorizes the Secretary of 

Transportation to prescribe regulations 

for the safe transportation, including 

security, of hazardous material in 

intrastate, interstate, and foreign 

commerce. As set forth in 49 U.S.C. 

5103(b)(1)(A), the regulations are to 

apply to, among others, a person 

transporting a hazardous material in 

commerce or causing hazardous 

material to be transported in commerce. 

In this NPRM, we are proposing to 

codify in the HMR longstanding 

interpretations concerning the 

applicability of the HMR to persons who 

offer hazardous materials for 

transportation. The terms ‘‘offer’’ or 

‘‘person who offers’’ are used 

throughout the HMR to describe the 

process of causing a hazardous materials 

to be transported in commerce. 

Clarifying the applicability of the HMR 

to persons who offer hazardous 

materials for transportation will help 

the regulated community understand 

and comply with regulatory 

requirements applicable to specific 

situations and operations. 

B. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This proposed rule is not considered 

a significant regulatory action under 

Executive Order 12866 and, therefore, 

was not reviewed by the Office of 

Management and Budget. The proposed 

rule is not considered a significant rule 

under the Regulatory Policies and 

Procedures of the Department of 

Transportation (44 FR 11034). No 

further regulatory evaluation is 

necessary because the proposed 

definition of ‘‘person who offers’’ would 

simply restate and codify long-standing 

interpretations on the applicability of 

the HMR without making any 

substantive change and, thus, would not 

increase or decrease either the number 

of persons who must comply with the 

HMR or the costs of compliance with 

the HMR by those persons. 

We invite interested persons to 

submit comments on our conclusion 

that there would not be any increase or 

decrease in the costs of compliance with 

the HMR. Those comments should 

specifically describe and quantify any 

change in the costs of compliance and 

also identify (and quantify to the extent 

possible) any benefits that would result 

if the proposed definition of ‘‘person 

who offers’’ are adopted. 

C. Executive Order 13132 (Federalism) 

This proposed rule has been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This proposed 

rule would make no change in the 

Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 57249

applicability of the HMR or, to the 

extent that the HMR have been adopted 

by a State and are being enforced as 

State requirements, the applicability of 

those State requirements. For this 

reason, RSPA believes that nothing in 

this proposed rule, if adopted, will 

preempt any State law or regulation or 

have any substantial direct effect or 

sufficient federalism implications that 

would limit the policymaking discretion 

of the States. RSPA invites States and 

other interested parties to comment on 

whether they believe any State 

requirement would be affected by the 

adoption of this proposed rule. 

D. Executive Order 13175

This proposed rule has been analyzed 

in accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this proposed rule does not 

have tribal implications and does not 

impose substantial direct compliance 

costs, the funding and consultation 

requirements of Executive Order 13175 

do not apply. 

E. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires an agency to 

review regulations to assess their impact 

on small entities unless the agency 

determines that a rule is not expected to 

have a significant economic impact on 

a substantial number of small entities. 

Need and legal basis for the proposed 

rule. This proposed rule is intended to 

codify prior interpretations on the 

applicability of the HMR to persons who 

offer a hazardous material for 

transportation in commerce. If adopted, 

this proposed rule would be issued 

under the requirement in 49 U.S.C. 

5103(b)(1)(A) for DOT to issue 

regulations for the safe transportation of 

hazardous material in intrastate, 

interstate, and foreign commerce that 

apply to a person causing hazardous 

material to be transported in commerce.

Identification of potentially affected 

small entities. Unless alternative 

definitions have been established by an 

agency in consultation with the Small 

Business Administration (SBA), the 

definition of ‘‘small business’’ has the 

same meaning under the Small Business 

Act. Because no special definition has 

been established, RSPA employs the 

thresholds published by SBA for 

industries subject to the HMR. Based on 

data for 1997 compiled by the U.S. 

Census Bureau, it appears that upwards 

of 95 percent of firms who are subject 

to the HMR are small businesses. These 

entities would incur no new costs to 

comply with the HMR, because the 

proposed rule would make no change in 

the applicability of the HMR. 

Related Federal rules and regulations.

The Occupational Safety and Health 

Administration (OSHA) of the U.S. 

Department of Labor issues regulations 

related to safe operations, including 

containment and transfer operations, 

involving hazardous materials in the 

workplace. These regulations are 

codified at 29 CFR part 1910 and 

include requirements for process safety 

management of highly hazardous 

chemicals and for operations involving 

specific hazardous materials, such as 

compressed gases, flammable and 

combustible liquids, explosives and 

blasting agents, liquefied petroleum 

gases, and anhydrous ammonia. OSHA 

regulations also address hazard 

communication requirements at fixed 

facilities, including container labeling 

and other forms of warning, material 

safety data sheets, and employee 

training. 

The U.S. Environmental Protection 

Agency (EPA) issues regulations on the 

management of hazardous wastes, 

including the tracking of hazardous 

wastes transported from a generator to a 

treatment, storage, or disposal facility. 

These regulations are codified at 40 CFR 

parts 260–265. As provided by Section 

3003(b) of the Resource Conservation 

and Recovery Act (42 U.S.C. 6923(b)), 

EPA’s regulations applicable to 

transporters of hazardous waste are 

consistent with requirements in the 

HMR. 

EPA also issues regulations designed 

to prevent accidental release into the 

environment of hazardous materials at 

fixed facilities, codified at 40 CFR part 

68. These regulations include 

requirements for risk management plans 

that must include a hazard assessment, 

a program for preventing accidental 

releases, and an emergency response 

program to mitigate the consequences of 

accidental releases. EPA regulations on 

hazardous materials at fixed facilities 

also address community right-to-know 

requirements, hazardous waste 

generation, storage, disposal and 

treatment, and requirements to prevent 

the discharge of oil into or onto the 

navigable waters of the United States or 

adjoining shorelines. 

The Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF) of the 

U.S. Department of Justice issues 

regulations on licensing, permitting and 

safe handling (including storage) of 

explosives, codified at 27 CFR part 555. 

These regulations do not apply to ‘‘any 

aspect of the transportation of explosive 

materials via railroad, water, highway, 

or air which are regulated by the United 

States Department of Transportation and 

agencies thereof, and which pertain to 

safety.’’ 18 U.S.C. 845(a)(1). 

The Nuclear Regulatory Commission 

issues regulations, codified in 10 CFR, 

governing its licensees who acquire, 

receive, possess, use, and transfer 

certain radioactive materials, including 

requirements on packagings used in 

transporting these materials and the 

physical protection of these materials at 

fixed facilities and during 

transportation. 

Conclusion. This proposed rule would 

make no change in the applicability of 

the HMR and impose no new costs of 

compliance with the HMR 

requirements. I hereby certify that the 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

F. Unfunded Mandates Reform Act of 

1995

This proposed rule would not impose 

any mandate and thus would not 

impose unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. 

G. Paperwork Reduction Act 

This proposed rule would not impose 

any new information collection 

requirements. 

H. Environmental Assessment 

There would not be any 

environmental impacts associated with 

this proposed rule. 

I. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN contained in the heading 

of this document may be used to crossreference this action with the Unified 

Agenda. 

J. Privacy Act 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register

published on April 11, 2000 (Volume 

65, Number 70, pages 19477–78), or at 

http://dms.dot.gov.

List of Subjects in 49 CFR Part 171

Exports, Hazardous materials 

transportation, Hazardous Waste, 

Imports, Reporting and recordkeeping 

requirements.

57250 Federal Register / Vol. 69, No. 185 / Friday, September 24, 2004 / Proposed Rules 

In consideration of the foregoing, we 

propose to amend 49 CFR, subtitle B, 

chapter I as follows:

PART 171—GENERAL INFORMATION, 

REGULATIONS AND DEFINITIONS 

1. The authority citation for part 171 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701, 49 

CFR 1.45 and 1.53; Pub. L. 101–410 section 

4 (28 U.S.C. 2461 note); Pub. L. 104–134 

section 31001.

2. In § 171.2, revise paragraphs (a) and 

(b), to read as follows:

§ 171.2 General requirements. 

(a) No person may offer or accept a 

hazardous material for transportation in 

commerce unless that person is 

registered in conformance with subpart 

G of part 107 of this subchapter, if 

applicable, and the hazardous material 

is properly classed, described, 

packaged, marked, labeled, and in 

condition for shipment as required or 

authorized by applicable requirements 

of this subchapter, or an exemption, 

approval, or registration issued under 

this subchapter or under subchapter A 

of this chapter. There may be more than 

one offeror of a shipment of hazardous 

materials. Each offeror is responsible for 

complying with the requirements of this 

subchapter, or an exemption, approval, 

or registration issued under this 

subchapter or subchapter A of this 

chapter, with respect to any pretransportation function that it performs 

or is required to perform; however, each 

offeror is responsible only for the 

specific pre-transportation functions 

that it performs or is required to 

perform, and each offeror may rely on 

information provided by another offeror, 

unless an offeror knows or, in the 

exercise of reasonable care, should 

know that the information provided by 

the other offeror is incorrect. 

(b) No person may transport a 

hazardous material in commerce unless 

that person is registered in conformance 

with subpart G of part 107 of this 

subchapter, if applicable, and the 

hazardous material is handled and 

transported in accordance with 

applicable requirements of this 

subchapter, or an exemption, approval, 

or registration issued under this 

subchapter or subchapter A of this 

chapter. Each carrier who transports a 

hazardous material in commerce may 

rely on information provided by the 

offeror of the hazardous material or a 

prior carrier, unless the carrier knows 

or, in the exercise of reasonable care, 

should know that the information 

provided by the offeror or prior carrier 

is incorrect.

* * * * *

3. In § 171.8, add a definition for 

‘‘person who offers or offeror’’ in 

appropriate alphabetical order, to read 

as follows:

§ 171.8 Definitions and abbreviations.

* * * * *

Person who offers or offeror means:

(1) Any person who does either or both 

of the following: 

(i) Performs, or is responsible for 

performing, any pre-transportation 

function required under this subchapter 

for transportation of the hazardous 

material. 

(ii) Tenders or makes the hazardous 

material available to a carrier for 

transportation in commerce. 

(2) A carrier that transfers, interlines, 

or interchanges hazardous material to 

another carrier for continued 

transportation is not an offeror when it 

does not perform any pre-transportation 

function.

* * * * *

Issued in Washington, DC on September 

21, 2004, under the authority delegated in 49 

CFR part 106. 

Robert A. McGuire, 

Associate Administrator for Hazardous 

Material Safety.

[FR Doc. 04–21535 Filed 9–23–04; 8:45 am] 

BILLING CODE 4910–60–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AJ07 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Gaura neomexicana ssp. 

coloradensis (Colorado Butterfly Plant)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; extension of 

comment period and notice of 

availability of draft economic analysis 

and draft environmental assessment. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service) announce the 

availability of a draft economic analysis 

and draft environmental assessment for 

the proposed designation of critical 

habitat for Gaura neomexicana ssp. 

coloradensis (hereafter referred to as 

‘‘Colorado butterfly plant’’) under the 

Endangered Species Act of 1973, as 

amended (Act). In addition, we 

announce the extension of the comment 

period on the proposed rule to designate 

critical habitat for the Colorado butterfly 

plant.

DATES: We will accept all comments 

received on or before October 25, 2004. 

Any comments that we receive after the 

closing date may not be considered in 

the final decision on this proposal.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposed rule, 

the draft economic analysis, and the 

draft environmental assessment by any 

one of several methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

U.S. Fish and Wildlife Service, 

Wyoming Field Office, 4000 Airport 

Parkway, Cheyenne, Wyoming 82001, or 

by facsimile (307) 772–2358. 

(2) You may hand-deliver written 

comments to our office, at the address 

given above. 

(3) You may send comments by 

electronic mail (e-mail) to 

fw6_cobutterflyplant@fws.gov. Please 

see the Public Comments Solicited 

section below for file format and other 

information about electronic filing. In 

the event that our Internet connection is 

not functional, please submit your 

comments by the alternate methods 

mentioned above. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address. You may obtain copies of the 

draft economic analysis and draft 

environmental assessment for the 

Colorado butterfly plant by contacting 

the Wyoming Field Office at the above 

address. The draft economic analysis, 

draft environmental assessment, and the 

proposed rule for critical habitat 

designation also are available on the 

Internet at http://www.r6.fws.gov/

species/plants/cobutterfly/. In the event 

that our Internet connection is not 

functional, please obtain copies of 

documents directly from the Wyoming 

Fish and Wildlife Office.

FOR FURTHER INFORMATION CONTACT:

Brian T. Kelly, Field Supervisor 

(telephone (307) 772–2374; facsimile 

(307) 772–2358), Wyoming Field Office, 

at the address listed above.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend any final action resulting 

from the proposed rule to be as accurate 

and as effective as possible. Therefore, 

we solicit comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific