70902 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

long as the State meets the criteria 

required by RCRA. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a State 

authorization application, to require the 

use of any particular voluntary 

consensus standard in place of another 

standard that otherwise satisfies the 

requirements of RCRA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

F.R. 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. EPA has complied 

with Executive Order 12630 (53 F.R. 

8859, March 15, 1988) by examining the 

takings implications of the rule in 

accordance with the ‘‘Attorney 

General’s Supplemental Guidelines for 

the Evaluation of Risk and Avoidance of 

Unanticipated Takings’ issued under the 

Executive Order. This rule does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this document and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication in the Federal Register. A 

major rule cannot take effect until 60 

days after it is published in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). This 

action will be effective February 7, 

2005.

List of Subjects in 40 CFR Part 271

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous materials transportation, 

Hazardous waste, Indians-lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements.

Authority: This action is issued under the 

authority of sections 2002(a), 3006 and 

7004(b) of the Solid Waste Disposal Act as 

amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: November 16, 2004. 

J.I. Palmer, Jr., 

Regional Administrator, Region 4.

[FR Doc. 04–26943 Filed 12–7–04; 8:45 am] 

BILLING CODE 6560–50–P

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; delay of effective 

date. 

SUMMARY: On October 30, 2003, RSPA 

published a final rule (68 FR 61905) to 

clarify the applicability of the 

Hazardous Materials Regulations to 

loading, unloading, and storage 

operations. RSPA is delaying the 

effective date of the final rule from 

January 1, 2005 until June 1, 2005.

DATES: The effective date of the final 

rule amending 49 CFR parts 171, 173, 

174, 175, 176, 177, and 178 published 

at 68 FR 61905 on October 30, 2003, and 

delayed at 69 FR 30588 on May 28, 

2004, is further delayed until June 1, 

2005.

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: 

I. Background 

On October 30, 2003, the Research 

and Special Programs Administration 

(RSPA, we) published a final rule to 

clarify the applicability of the 

Hazardous Materials Regulations (HMR; 

49 CFR parts 171–180) to specific 

functions and activities, including 

hazardous materials loading and 

unloading operations and storage of 

hazardous materials during 

transportation (68 FR 61906). The final 

rule amended the HMR to incorporate 

the following new definitions and 

provisions: 

• We defined a new term—‘‘pretransportation 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. Pretransportation functions must be 

performed in accordance with 

requirements in the HMR. 

• We defined ‘‘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 hazardous 

materials transportation law (Federal 

hazmat law; 49 U.S.C. 5101 et seq.). 

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. 

• We defined ‘‘movement’’ to mean 

the physical transfer of a hazardous 

material from one geographic location to 

another by rail car, aircraft, motor 

vehicle, or vessel. 

• We defined ‘‘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. 

• We defined ‘‘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. 

Unloading by a consignee after the 

delivering carrier has departed the 

facility is not unloading incidental to 

movement and not regulated under the 

HMR. 

Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 70903

• We defined ‘‘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 

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. 

• We amended § 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 

packagings 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. 

• We amended § 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. The 

final rule was intended to clarify the 

applicability of the HMR to specific 

functions and activities. It is important 

to note that facilities at which pretransportation or transportation 

functions are performed must comply 

with Occupational Safety and Health 

Administration (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 pretransportation or transportation 

functions are performed may also be 

subject to Environmental Protection 

Agency (EPA) and 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.

II. Appeals of the Final Rule 

We received 14 appeals of the final 

rule from Ag Processing Inc. (AGP); 

Akzo Nobel (Akzo); Archer Daniels 

Midland Company (Archer Daniels); the 

Association of American Railroads 

(AAR); the Dangerous Goods Advisory 

Council (DGAC); the Dow Chemical 

Company (Dow); DuPont; Eastman 

Chemical Company (Eastman); the 

Institute of Makers of Explosives (IME); 

Norfolk Southern Corporation (Norfolk 

Southern); the Spa and Pool Chemical 

Manufacturers’ Association (SPCMA); 

the Sulphur Institute; the Utility Solid 

Waste Activities Group (USWAG); and 

Vermont Railway, Inc. (Vermont 

Railway). 

Appellants raised a number of issues 

related to the consistency of the final 

rule with Federal hazardous materials 

transportation law; state and local 

regulation of hazardous materials 

facilities; the relationship of the HMR to 

regulations promulgated by OSHA, EPA, 

and ATF; the definitions adopted in the 

final rule for ‘‘unloading incidental to 

movement,’’ ‘‘transloading,’’ and 

‘‘storage incidental to movement;’’ and 

the consistency of the HM–223 final 

rule with security regulations adopted 

in a final rule issued under Docket No. 

HM–232. 

III. Delay of Effective Date 

On May 28, 2004, we published a 

final rule to delay the effective date of 

the October 30, 2003 final rule until 

January 1, 2005 (69 FR 30588). In the 

May 28, 2004 final rule, we explained 

that the issues raised by appellants 

concerning the October 30, 2003 final 

rule were detailed and complex and that 

delaying the effective date would 

provide us with sufficient time to fully 

address the issues raised by the 

appellants and to coordinate the appeals 

document fully with the other Federal 

agencies that assisted us in developing 

the HM–223 final rule. Unfortunately, 

we have not been able to coordinate 

decisions concerning the appeals to the 

October 30, 2003 final rule as 

expeditiously as we had hoped. 

Therefore, we have decided to delay the 

effective date of the final rule until June 

1, 2005. 

IV. Continued Applicability of the HMR 

The October 30, 2003 final rule is 

based on long-standing administrative 

determinations as to the applicability of 

the HMR to specific functions and 

activities. These administrative 

determinations remain in effect even 

though the effective date of the HM–223 

final rule is delayed. Therefore, 

notwithstanding the action taken in this 

final rule to delay the effective date of 

the October 30, 2003 final rule until 

June 1, 2005, you may generally rely on 

the preamble discussion for the October 

30, 2003 final rule for guidance as to 

how the HMR apply to functions and 

activities related to the transportation of 

hazardous materials in commerce; the 

relationship of the HMR to standards 

and regulations issued by OSHA, EPA 

and ATF; and the preemption 

provisions of Federal hazmat law as 

they apply to non-Federal laws and 

regulations applicable to the 

transportation of hazardous materials in 

commerce. Note, however, that because 

the amendments to § 174.67 of the HMR 

affecting rail tank car unloading 

operations conducted by consignees 

will not become effective until June 1, 

2005, the requirements in § 174.67 

continue to apply to any person 

unloading hazardous materials from a 

rail tank car. Persons holding 

exemptions applicable to any of the 

requirements in § 174.67 must continue 

to maintain such exemptions in effect 

until June 1, 2005. 

70904 Federal Register / Vol. 69, No. 235 / Wednesday, December 8, 2004 / Rules and Regulations 

1 ‘‘The requirement prescribed under subsection 

(a)(1) shall be implemented in phases on a 

production year basis beginning with the 

production year that begins not later than 12 

months after the end of the year in which the 

regulations are prescribed under subsection (a). The 

final rule shall apply to all passenger motor 

vehicles with a gross vehicle weight rating of 10,000 

pounds or less that are manufactured in the third 

production year of the implementation phase-in 

under the schedule.’’

V. Effect of Delay on Revised Incident 

Reporting Requirements 

On December 3, 2003 (68 FR 67745), 

we published a final rule under docket 

HM–229 revising the incident reporting 

requirements in §§ 171.15 and 171.16 of 

the HMR and the Hazardous Materials 

Incident Report Form. On May 26, 2004 

(69 FR 30113), we published a final rule 

making several corrections to the 

December 3, 2003 final rule and 

extending its effective date until January 

1, 2005. We extended the effective date 

of the incident reporting final rule to 

provide sufficient time for development 

and testing of the software to enable 

electronic reporting of incidents and for 

outreach to the regulated community. 

Several persons have suggested that, 

because the HM–229 final rule 

references definitions adopted in the 

HM–223 final rule, the effective date for 

the HM–229 final rule must coincide 

with the effective date for the HM–223 

final rule. We do not agree. As stated 

above, the HM–223 final rule adopts 

definitions that are based on longstanding administrative determinations 

as to the applicability of the HMR to 

specific functions and activities. These 

administrative determinations remain in 

effect even though the effective date of 

the HM–223 final rule is delayed. 

The HM–229 final rule expands the 

incident reporting requirements to each 

person who is in physical control of a 

hazardous material while it is being 

transported in commerce. Generally, the 

person in physical control of the 

hazardous material during 

transportation will be either the carrier 

or the person having physical control of 

the hazardous material for the time that 

it may be stored during transportation. 

The HM–229 final rule states, 

‘‘Consistent with the definitions 

adopted in the HM–223 final rule, 

storage incidental to movement is 

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 until the package containing 

the hazardous material is physically 

delivered to the destination indicated 

on a shipping document.’’ (68 FR 67751) 

The HM–223 definition for ‘‘storage 

incidental to movement’’ is consistent 

with previously issued preemption 

determinations and letters of 

clarification concerning the 

applicability of the HMR to storage 

operations (see preamble discussion to 

the NPRM published under docket HM–

223 on June 14, 2001; 66 FR 32434–36). 

Thus, notwithstanding the delay in the 

effective date of the HM–223 final rule, 

the incident reporting requirements 

adopted in HM–229 apply to persons in 

physical possession of a hazardous 

material between the time that the 

hazardous material is offered for 

transportation to a carrier and the time 

it reaches its intended destination and 

is accepted by the consignee ‘‘that is, 

to carriers and to owners or operators of 

facilities at which the hazardous 

material may be stored during 

transportation.

Issued in Washington, DC, on December 1, 

2004, under authority delegated in 49 CFR 

part 1. 

Samuel G. Bonasso, 

Deputy Administrator, Research and Special 

Programs Administration.

[FR Doc. 04–26852 Filed 12–7–04; 8:45 am] 

BILLING CODE 4910–60–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Parts 571, 585, 586, 589, 590, 

596, and 597

[Docket No. NHTSA–04–18726] 

RIN 2127–AI91

Federal Motor Vehicle Safety 

Standards; Occupant Crash Protection

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation.

ACTION: Final rule.

SUMMARY: This document adopts 

NHTSA’s proposal to require all 

designated seating positions in rear 

seats, other than side-facing seats, be 

equipped with Type 2 integral lap/

shoulder safety belts. Side-facing seats 

may be equipped with either a Type 1 

lap belt or a Type 2 belt. This final rule 

responds to a Congressional mandate 

that the agency begin to phase-in 

requirements for lap/shoulder belts for 

all rear seating positions, wherever 

practicable, not later than September 1, 

2005.

DATES: Effective Date: The amendments 

made in this rule are effective 

September 1, 2005. Petitions: Petitions 

for reconsideration must be received by 

January 24, 2005.

ADDRESSES: Petitions for reconsideration 

should refer to the docket and notice 

number of this document and be 

submitted to: Administrator, National 

Highway Traffic Safety Administration, 

400 Seventh Street, SW., Washington, 

DC 20590.

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Sanjay 

Patel, Office of Crashworthiness 

Standards, at 202–366–4583. 

For legal issues, you may call 

Christopher Calamita, Office of the 

Chief Counsel, at 202–366–2992. 

You may send mail to both of these 

officials at the National Highway Traffic 

Safety Administration, 400 Seventh St., 

SW., Washington, DC, 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Background 

II. Summary of the Proposed Requirements 

III. Summary of Public Comments 

IV. Summary of the Final Rule 

V. Requirements of the Final Rule 

A. General Requirements 

B. Allowance for Detachable Type 2 Belts 

1. Removable Seats 

2. Folding Seats 

3. Seats Located Adjacent to An Aisle 

4. Bus Seats 

5. Swivel seats 

VI. Phase-In of the New Requirements 

VII. Other Issues

VIII. Costs and Benefits Associated With the 

Final Rule 

IX. Rulemaking Analyses and Notices

I. Background 

On December 4, 2002, the President 

signed into law ‘‘Anton’s Law’’, Public 

Law 107–318 (December 4, 2002; 116 

Stat. 2772), which provides for the 

improvement of child safety devices 

when installed in motor vehicles. One 

of the provisions of Anton’s Law 

mandates the installation of lap/

shoulder belts in rear seating positions. 

Specifically, section 5(a) of the law 

directs the Secretary of Transportation, 

through NHTSA, to issue a final rule by 

December 2004 that would:

require a lap and shoulder belt assembly for 

each rear designated seating position in a 

passenger motor vehicle with a gross vehicle 

weight rating of 10,000 pounds or less, 

except that if the Secretary determines that 

installation of a lap and shoulder belt 

assembly is not practicable for a particular 

designated seating position in a particular 

type of passenger motor vehicle, the 

Secretary may exclude the designated seating 

position from the requirement.

Section 5(b) of the statute further 

specifies that the final rule be 

implemented in phases on a production 

year basis, beginning with the first 

production year after the year the final 

rule is published.1 The rule is to be