[Federal Register Volume 69, Number 185 (Friday, September 24, 2004)]
[Proposed Rules]
[Pages 57245-57250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21535]


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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).

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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:
    <bullet> 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.
    <bullet> DOT Docket Management System Web site: http://dms.dot.gov. 
Click on ``Comment/Submissions'' and follow the instructions for 
submitting comments.
    <bullet> Fax: 1-202-493-2251.
    <bullet> 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.
    <bullet> 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:


[[Page 57246]]


    (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 Sec.  171.1 of the HMR to incorporate 
language to clarify the applicability of the regulations to persons who 
perform specific functions. The revised Sec.  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 Sec.  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 
pre-transportation 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 pre-transportation requirements 
if other factors indicate that a particular pre-transportation 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 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 
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

[[Page 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 pre-transportation 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, Sec.  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 pre-transportation 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 pre-transportation 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 pre-transportation 
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 pre-transportation 
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 pre-transportation 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 pre-transportation 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

[[Page 57248]]

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 pre-
transportation functions required for the shipment were performed. We 
will 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 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 carry-on 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

[[Page 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 cross-reference 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.


[[Page 57250]]


    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 Sec.  171.2, revise paragraphs (a) and (b), to read as 
follows:


Sec.  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 pre-transportation 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 Sec.  171.8, add a definition for ``person who offers or 
offeror'' in appropriate alphabetical order, to read as follows:


Sec.  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