32420 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

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: Notice of proposed rulemaking.

SUMMARY: RSPA is proposing to clarify

the applicability of the Hazardous

Materials Regulations (HMR) to specific

functions and activities, including

hazardous materials loading and

unloading operations and storage of

hazardous materials during

transportation. We propose to list in the

HMR pre-transportation and

transportation functions to which the

HMR apply. Pre-transportation

functions are functions performed to

prepare hazardous materials for

movement in commerce by persons who

offer a hazardous material for

transportation or cause a hazardous

material to be transported.

Transportation functions are functions

performed as part of the actual

movement of hazardous materials in

commerce, including loading,

unloading, and storage of hazardous

materials that is incidental to their

movement. We propose to clarify that

‘‘transportation in commerce,’’ for

purposes of applicability of the HMR,

begins when a carrier takes possession

of a hazardous material and continues

until the carrier delivers the package

containing the hazardous material to its

destination as indicated on shipping

papers.

DATES: Comments. Submit comments by

October 12, 2001. To the extent

possible, we will consider comments

received after this date in making our

decision on a final rule.

ADDRESSES: Written comments. Submit

comments to the Dockets Management

System, U.S. Department of

Transportation, Room PL 401, 400

Seventh Street, SW., Washington, DC

20590–0001. Comments should identify

Docket Number RSPA–98–4952 (HM–

223) and be submitted in two copies. If

you wish to receive confirmation of

receipt of your written comments,

include a self-addressed, stamped

postcard. You may also submit

comments by e-mail by accessing the

Dockets Management System web site at

‘‘http://dms.dot.gov/’’ and following the

instructions for submitting a document

electronically.

The Dockets Management System is

located on the Plaza level of the Nassif

Building at the Department of

Transportation at the above address.

You can review public dockets there

between the hours of 9 a.m. and 5 p.m.,

Monday through Friday, except federal

holidays. You can also review

comments on-line at the DOT Dockets

Management System web site at ‘‘http:/

/dms.dot.gov/.’’

FOR FURTHER INFORMATION CONTACT:

Susan Gorsky (202) 366–8553, Office of

Hazardous Materials Standards,

Research and Special Programs

Administration; or Nancy Machado

(202) 366–4400, Office of the Chief

Counsel, Research and Special Programs

Administration.

SUPPLEMENTARY INFORMATION:

List of Topics

I. Background

II. Summary of Issues

III. Analysis of Comments

A. Agency Interpretation of Authorizing

Statute

B. Bulk versus Non-Bulk Issues

C. Preemption

D. Pre-transportation Activities and

Specification Packagings

E. ‘‘Transportation in Commerce’’

F. OSHA and EPA Regulations

IV. Proposal

A. Packaging Specifications

B. Pre-Transportation Functions

C. Transportation that is ‘‘in Commerce’’

D. Transportation Functions Subject to the

HMR

E. State/Local Requirements and

Preemption

F. OSHA Programs and Regulations

G. EPA Programs and Regulations

V. Section-by-Section Review

VI. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

B. Executive Order 13132

C. Executive Order 13084

D. Regulatory Flexibility Act

E. Paperwork Reduction Act

F. Regulation Identifier Number (RIN)

G. Unfunded Mandates Reform Act

H. Environmental Assessment

I. Background

The Hazardous Materials Regulations

(HMR; 49 CFR parts 171–180) are

promulgated under the mandate in 49

U.S.C. 5103(b) that the Secretary of

Transportation ‘‘prescribe regulations

for the safe transportation of hazardous

material in intrastate, interstate, and

foreign commerce.’’ Section

5103(b)(1)(B) provides that the HMR

‘‘shall govern safety aspects of the

transportation of hazardous material the

Secretary considers appropriate.’’

‘‘Transportation’’ is defined as ‘‘the

movement of property and loading,

unloading, or storage incidental to the

movement.’’ 49 U.S.C. 5102(12).

‘‘Commerce’’ is defined as ‘‘trade or

transportation in the jurisdiction of the

United States between a place in a State

and a place outside of the State; or that

affects trade or transportation between a

place in a State and a place outside of

the State.’’ 49 U.S.C. 5102(1). Neither

the statute nor the HMR defines the

terms ‘‘loading incidental to

movement,’’ ‘‘unloading incidental to

movement,’’ or ‘‘storage incidental to

movement.’’ The legislative history of

the statute does not clarify this matter.

The Research and Special Programs

Administration (RSPA, we) has issued a

number of interpretations, inconsistency

rulings, and preemption determinations

in response to requests from the public

for clarification regarding the meaning

of ‘‘transportation in commerce’’ and

whether particular activities are covered

by that term and, therefore, are subject

to regulation under the HMR. Loading,

unloading, and storage of hazardous

materials are areas of particular

confusion and concern.

On July 29, 1996, we published an

advance notice of proposed rulemaking

(ANPRM) seeking comments on the

applicability of the HMR to loading,

unloading, and storage of hazardous

materials (61 FR 39522). We also hosted

three public meetings at which

interested persons were invited to

present ideas, proposals, and

recommendations on the applicability of

the HMR. Representatives of the

Environmental Protection Agency

(EPA), the Occupational Safety and

Health Administration (OSHA), and

DOT’s Federal Railroad Administration

(FRA) participated in the public

meetings. In addition to DOT, EPA, and

OSHA, more than 200 interested

persons participated in the public

meetings. They included representatives

of shippers, carriers, warehouses, state

and local public safety agencies, and

building and fire code safety

organizations. We also received more

than 70 written comments.

On April 27, 1999, we published a

supplemental ANPRM (64 FR 22718),

highlighting comments received in

response to the 1996 ANPRM and

requesting additional information. In

particular, the supplemental ANPRM

discussed the three approaches most

commonly suggested by commenters to

the 1996 ANPRM for applying the HMR

to hazardous materials loading,

unloading, and storage operations and

asked a number of questions focused on

the details of each approach. We

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32421

received more than 60 comments in

response to the supplemental ANPRM.

In addition to the above referenced

comments, the docket for this

rulemaking also includes over 40

comments originally submitted under

Docket HM–212. On March 27, 2000, we

withdrew the NPRM issued under

Docket HM–212 that addressed cargo

tank loading and tank car unloading

requirements (65 FR 16161). At the

same time, we announced that tank car

unloading issues would be addressed as

part of Docket No. RSPA–98–4952 (HM–

223) and comments submitted to Docket

HM–212 would be added to this docket.

The docket for this rulemaking also

includes 84 comments and docket

submissions related to a request for a

preemption determination applicable to

certain California and Los Angeles

County requirements for handling and

transportation of hazardous materials

(Docket Nos. PDA–9(R), PDA–7(R),

PDA–10(R), and PDA–11(R); February

15, 1995; 60 FR 8773). The preemption

determination addressed state and

county requirements for rail car storage

and unloading of hazardous materials

on consignee property.

II. Summary of Issues

Federal hazardous materials

transportation law (federal hazmat law),

codified at 49 U.S.C. 5101 et seq.,

authorizes the Secretary of

Transportation to establish regulations

for the safe transportation of hazardous

materials in intrastate, interstate, and

foreign commerce. The regulations

apply to persons who: (1) Transport

hazardous materials in commerce; (2)

cause hazardous materials to be

transported in commerce; or (3)

manufacture, mark, maintain,

recondition, repair, or test packagings or

containers (or components thereof) that

are represented, marked, certified, or

sold as qualified for use in the

transportation of hazardous materials in

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

regulations govern any safety aspect of

hazardous materials transportation that

the Secretary considers appropriate. 49

U.S.C. 5103(b)(1)(B). As noted above,

the law defines ‘‘transportation’’ to

mean ‘‘the movement of property and

loading, unloading, or storage incidental

to the movement.’’ 49 U.S.C. 5102(12).

Nevertheless, Congress does not define

with specificity the particular activities

that fall within the terms ‘‘loading,’’

‘‘unloading,’’ and ‘‘storage’’ used in the

statutory definition of ‘‘transportation.’’

It is clear that federal hazmat law

directs the Secretary of Transportation

to address the safety of hazardous

materials transportation, that is, the

actual movement of hazardous materials

in commerce and the activities related

to that movement that are performed by

persons who transport hazardous

materials in commerce. At the same

time, federal hazmat law recognizes the

critical safety impact of activities

performed in advance of transportation

by persons who cause the transportation

of hazardous materials in commerce or

by persons who manufacture and

maintain containers that are represented

or sold as qualified for use for such

transportation.

In conformance with federal hazmat

law, the HMR currently impose

regulatory requirements on persons

who: (1) Perform functions in advance

of transportation to prepare hazardous

materials for transportation; (2) perform

transportation (i.e., movement and

incidental loading, unloading, and

storage) functions, or (3) manufacture or

maintain containers that are represented

or sold as qualified for use for

transportation of hazardous materials in

commerce. Functions performed in

advance of transportation to prepare

hazardous materials for transportation—

‘‘pre-transportation functions’’—include

determining the hazard class of a

material, preparing a shipping paper,

providing emergency response

information, selecting an appropriate

packaging, filling a packaging, marking

and labeling a package, and placarding

a transport vehicle. ‘‘Transportation

functions’’ include the movement of a

hazardous material by rail car, motor

vehicle, aircraft, or vessel and certain

aspects of loading, unloading, and

storage operations that are ‘‘incidental’’

to such movement. Under the HMR,

training requirements apply to persons

who perform pre-transportation and

transportation functions and to persons

who manufacture or maintain

packagings certified or sold as qualified

for use in transportation in commerce.

There is confusion in the regulated

community and among federal, state,

and local agencies with hazardous

materials safety responsibilities

concerning whether and to what extent

the HMR apply to particular operations

and activities related to the

transportation of hazardous materials in

commerce. The most obvious area of

confusion was identified in the 1996

and 1999 ANPRMs—which loading,

unloading, and storage activities are

incidental to the movement of

hazardous materials in commerce and

therefore subject to the HMR. In

addition, there is uncertainty

concerning the extent to which state and

local agencies may regulate hazardous

materials safety, particularly at fixed

facilities where the lines between pretransportation, transportation, and nontransportation operations are not clearly

articulated. Although the interpretations

and administrative determinations we

have issued are publicly available, the

regulated industry, government

agencies, and Indian tribes have not

been consistently aware of their

existence and availability. Further, some

of the interpretations and decisions we

have issued need to be revised in light

of changes in the Secretary of

Transportation’s and other federal

agencies’ statutory authority. In this

rulemaking, we intend to consolidate,

clarify, and revise, as necessary, these

interpretations and administrative

decisions and make them part of the

HMR.

In developing this rulemaking, we

have four goals. First, we want to

maintain nationally uniform standards

applicable to pre-transportation

functions. Second, we want to maintain

nationally uniform standards applicable

to transportation functions. Third, we

want to distinguish functions that are

subject to the HMR from functions that

are not subject to the HMR. Finally, we

want to clarify that facilities with

functions subject to the HMR may also

be subject to federal, state, or local

regulations governing occupational

safety and health or environmental

protection.

To achieve these goals, in this NPRM

we propose a list of specific functions

to which the HMR apply and we

identify the types of persons or entities

responsible for compliance with the

HMR. In addition, we propose to

include in the HMR an indication that

facilities at which functions regulated

by the HMR occur may also be subject

to applicable standards and regulations

of other federal agencies. We also

propose to include in the HMR the

statutory criteria under which nonfederal governments may be precluded

from regulating in certain areas under

the preemption provisions of federal

hazmat law.

III. Analysis of Comments

The 1999 supplemental ANPRM

discussed in detail the comments we

received in response to our 1996

ANPRM on this issue. There was no

consensus position among commenters

to the 1996 ANPRM as to how the HMR

should apply to hazardous materials

loading, unloading, and storage

operations. Commenters generally stated

that activities performed in advance of

transportation in commerce to prepare

hazardous materials for transportation

should be under the exclusive

regulatory jurisdiction of the Secretary

of Transportation. Commenters further

stated that activities related to the

32422 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

development of specifications for

packagings authorized for transportation

of hazardous materials, including all

testing, retesting, reconditioning, and

reuse requirements, should be subject to

the Secretary’s exclusive regulatory

jurisdiction. Similarly, commenters

generally stated that the Secretary of

Transportation should have exclusive

regulatory jurisdiction over the

movement of hazardous materials in

commerce. However, there was no

consensus from commenters as to which

loading, unloading, and storage

activities are incidental to the

movement of hazardous materials in

commerce and, therefore, subject to

regulation under federal hazmat law and

the HMR.

Commenters to the 1996 ANRPM

generally supported one of three

different approaches for defining the

transportation functions that fall under

the HMR. Many commenters

representing hazardous materials

manufacturers, shippers, and

transporters suggested that

‘‘transportation in commerce’’ begins

with an intent to ship a hazardous

material and that transportation

functions subject to HMR requirements

should therefore include all activities

related to the handling and storage of

such a hazardous material. Other

commenters, primarily representing

state and local government

environmental protection agencies,

suggested that ‘‘transportation in

commerce’’ does not begin until a

hazardous material is moving on public

roads or rights-of-way and that only

activities involving such movement

should be subject to the requirements in

the HMR. Still other commenters,

representing a mix of industry, labor,

and state governments, suggested that

‘‘transportation in commerce’’ begins

when a carrier accepts a hazardous

material for transportation and that

transportation functions subject to HMR

requirements should thus include only

carrier activities related to

transportation of the hazardous

material.

Most commenters to the 1999

supplemental ANPRM offer

amplifications and clarifications of

positions and recommendations

submitted in response to the 1996

ANPRM. As with the comments to the

1996 ANPRM, commenters emphasize

that the HMR should apply to functions

performed in advance of transportation

in commerce to prepare a hazardous

material for transportation. However,

commenters have fundamental

disagreements as to the specific

activities that fall under the term

‘‘transportation in commerce’’ and

whether and to what extent the HMR

should apply to specific activities.

A. Agency Interpretation of Authorizing

Statute

Several commenters assert that ‘‘DOT

cannot administratively determine its

own jurisdiction. Jurisdiction, for scope

of the regulations, is determined by

Congress, not the agency * * *’’ (FMC

Corporation) These commenters suggest

that ‘‘each Federal agency’s jurisdiction

is determined based upon the intent of

Congress when it passes statutes for that

agency to implement. It seems to be

unusual for a Federal agency to seek

input from the general public about

what its jurisdiction should be * * *’’

(HM–223 Working Group, an ad hoc

organization representing a number of

hazardous materials shippers and

carriers) For these commenters, the

definition set forth in the law is

sufficient to determine the extent of the

Secretary of Transportation’s

jurisdiction over hazardous materials

transportation. ‘‘The law makes

abundantly clear that DOT’s jurisdiction

applies to loading, unloading, and

storage incidental to transportation

activities.’’ (HM–223 Working Group)

Courts have recognized that where a

definitional issue is not squarely

addressed by the plain words of a

statute or its legislative history, the

agency administering the statute may

exercise its judgment as to the best

means of carrying out the act. See

Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467

U.S. 837, 104 S. Ct. 2778 (1984). See

also Morton V. Ruiz, 415 U.S. 199, 231

(1974) (‘‘The power of an administrative

agency to administer a congressionally

created * * * program necessarily

requires the formulation of policy and

the making of rules to fill in any gap

left, implicitly or explicitly, by

Congress.’’). Courts give considerable

weight to executive department

construction of a statutory scheme it is

entrusted to administer—unless the

construction is directly contrary to clear

congressional intent. Chevron at 843,

844. See also INS v. Jong Ha Wang, 450

U.S. 139 (1981).

In ascertaining the best means of

carrying out its statutory authority, it is

not unusual for an agency to use the

rulemaking process to solicit ideas from

the public. In fact, the Court in Chevron

recognized that an agency, to engage in

informed rulemaking, must consider

varying interpretations and the wisdom

of its policy on a continuing basis.

Chevron at 863, 864. Congress gave the

Secretary authority to apply the HMR to

the safety aspects of hazardous materials

transportation the Secretary considers

appropriate. 49 U.S.C. 5103(b)(1)(B).

Through this rulemaking, we are asking

for public input regarding the wisdom

of extending, narrowing, or simply

clarifying where the HMR apply.

In this instance, federal hazmat law

defines transportation as the

‘‘movement of property and loading,

unloading, or storage incidental to the

movement.’’ Neither the statute nor its

legislative history define which loading,

unloading or storage activities or

functions are ‘‘incidental’’ to the

movement of hazardous materials in

commerce. Consequently, as discussed

earlier, RSPA has issued numerous

interpretations, inconsistency rulings,

and preemption determinations in

response to public requests for

clarification regarding the meaning of

‘‘transportation in commerce’’ and

whether particular activities are covered

by that term and, as such, covered by

the HMR. The lack of clarity in RSPA’s

statute and the HMR regarding this

issue, as well as changes in the

Secretary of Transportation’s and other

federal agencies’ statutory authorities,

make it necessary for RSPA to

reevaluate and codify its position

regarding which loading, unloading,

and storage activities and functions fall

within the term ‘‘transportation’’ as set

forth in federal hazmat law.

B. Bulk Versus Non-Bulk Issues

Several commenters recommend that

we focus this rulemaking on bulk

transportation issues only. ‘‘We strongly

encourage the agency to separate bulk

handling questions in this rulemaking

from those involving the handling of

non-bulk and intermediate bulk

packages * * * [I]t is our view that the

vast majority of interest shown by

nonfederal and other federal agencies

has been in the handling of bulk loads,

primarily in temporary storage and

during unloading of tank cars and cargo

tanks. Here is where the greater risk is

perceived * * * In addition * * * here

is where the DOT requirements are

perceived as lacking sufficient detail.’’

(The Conference on Safe Transportation

of Hazardous Articles, Inc.) Another

commenter states, ‘‘During the 1996

meetings and comments, virtually all

concerns expressed by non-federal and

other federal agencies focused on bulk

transportation, and almost all of this

concern was concentrated on the

highway and rail modes * * * [W]e

recommend that DOT take a phased

approach and, in its initial decisions

regarding this docket, address only bulk

transport by rail and highway.’’ (FMC

Corporation)

While it is true that the initial

ANPRM published in 1996 was

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32423

prompted primarily by concerns related

to loading, unloading, and storage of

hazardous materials in rail tank cars

and, to a lesser extent, cargo tanks, we

do not agree that this rulemaking should

be limited to issues related to bulk

transportation of hazardous materials.

Our goal is to articulate a statement of

the applicability of the HMR that will

apply across all modes of transportation

and to all types of packagings. The

answer to the question of when the

regulation of transportation under the

HMR begins and ends should be the

same for all hazardous materials

shipments.

C. Preemption

Congress enacted the Hazardous

Materials Transportation Act (HMTA) in

1975 to give the Secretary of

Transportation greater authority ‘‘to

protect the Nation adequately against

the risks to life and property which are

inherent in the transportation of

hazardous materials in commerce.’’ A

statutory provision for federal

preemption was central to the HMTA. In

1974, the Senate Commerce Committee

‘‘endorse[d] the principle of preemption

in order to preclude a multiplicity of

State and local regulations and the

potential for varying as well as

conflicting regulations in the area of

hazardous materials transportation.’’ S.

Rep. No. 1102, 93rd Cong. 2nd Sess. 37

(1974). More recently, a Federal Court of

Appeals found that uniformity was the

‘‘linchpin’’ in the design of the HMTA,

including the 1990 amendments that

expanded the preemption provisions.

Colorado Pub. Util. Comm’n v. Harmon,

951 F.2d 1571, 1575 (10th Cir. 1991).

The 1990 amendments to the HMTA

codified the ‘‘dual compliance’’ and

‘‘obstacle’’ criteria that RSPA applied in

issuing inconsistency rulings before

1990. As now set forth in 49 U.S.C.

5125(a), these criteria provide that, in

the absence of a waiver of preemption

by the Secretary under 49 U.S.C. 5125(e)

or unless it is authorized by another

federal law, a requirement of a state,

political subdivision of a state, or Indian

tribe is explicitly preempted if:

(1) Complying with a requirement of

the state, political subdivision or Indian

tribe and a requirement of this chapter

or a regulation issued under this chapter

is not possible; or

(2) The requirement of the state,

political subdivision, or Indian tribe, as

applied or enforced, is an obstacle to

accomplishing and carrying out this

chapter or a regulation prescribed under

this chapter.

In the 1990 amendments to the

HMTA, Congress also added additional

preemption provisions on certain

‘‘covered subject’’ areas and with regard

to fees imposed by a state, political

subdivision, or Indian tribe on the

transportation of hazardous material.

The covered subject areas are:

(a) The designation, description, and

classification of hazardous material.

(b) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous material.

(c) The preparation, execution, and

use of shipping documents related to

hazardous material and requirements

related to the number, contents, and

placement of those documents.

(d) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material.

(e) The design, manufacturing,

fabrication, marking, maintenance,

reconditioning, repairing, or testing of a

packaging or container represented,

marked, certified, or sold as qualified

for use in transporting hazardous

material. 49 U.S.C. 5125(b).

Unless it is authorized by another

federal law or a waiver of preemption

from the Secretary of Transportation, a

non-federal requirement in any of these

areas is preempted when it is not

‘‘substantively the same’’ as federal

hazmat law or a regulation issued under

it. 49 U.S.C. 5125(b)(1). RSPA has

defined ‘‘substantively the same’’ to

mean ‘‘conforms in every significant

respect to the federal requirement.

Editorial and other similar de minimis

changes are permitted.’’ 49 CFR

107.202(d).

Industry commenters to the two

ANPRMs published under this docket

state that ‘‘national uniformity of

hazardous materials regulations is

critical’’ (American Forest and Paper

Association) and support a broad

application of the federal hazmat law’s

preemption provisions. ‘‘DOT should

continue to preempt non-federal

requirements when they frustrate the

safe and efficient transportation of

hazardous materials.’’ (Association of

Waste Hazardous Materials

Transporters) ‘‘DOT is the only agency

with a legislative mandate to be the

preeminent authority [for all

transportation activities that impact the

safe movement of hazardous materials].

This mandate must guarantee that the

safe transportation of hazardous

materials will take place without being

encumbered by any local, state, or

federal regulations that would interfere

with such transportation.’’ (CF

Industries) Further, DOT should

‘‘[d]evelop instructive guidelines on

preemption that track the functions of a

hazmat employee. DOT is the only

agency with Federal preemption

authority over state and local

regulations and without it, shippers and

carriers alike would be required to

comply with many differing and often

conflicting state and local regulations

that would cause confusing and

burdensome regulatory schemes.’’ (FMC

Corporation) Indeed, ‘‘DOT’s failure to

assert jurisdiction [with regard to

loading and unloading of bulk

containers] invite[s] state and local

agencies to promulgate their own

regulations for the loading, unloading,

and incidental activities related to the

transportation of hazardous materials in

contravention of the statutory

preemption provisions of [federal

hazmat law] * * * Such an invitation is

contrary to the goal of providing

uniform national regulations for the safe

and efficient transportation of

hazardous materials.’’ (National Paint

and Coatings Association)

State and local government agency

commenters to the two ANPRMs have a

different view of the preemption

provisions of federal hazmat law.

Several of these commenters believe

that ‘‘it is imperative that the HMR not

preempt * * * necessary [state or local]

regulations, rather the HMR should

establish a minimum standard.’’ (New

Jersey Department of Environmental

Protection) Other commenters suggest

that ‘‘it is important to distinguish

between state standards that are an

obstacle to compliance with HMR and

state standards that fill gaps in HMR

without being an obstacle to

compliance.’’ (California Department of

Toxic Substances Control) Moreover,

‘‘the HMR should at the very least defer

to state and local control. RSPA should

respect the rights of local control.

Furthermore, this local control should

not be subject to preemption petitions.

Local citizens mandate the involvement

of state and local regulatory agencies.’’

(Maine Department of Environmental

Protection) ‘‘DOT should not preempt

federal, state, or local authorities unless

it is clearly authorized to do so and

provides for protections at least as

stringent as those deemed necessary by

federal, state, and local authorities

* * * [G]reat deference should be

shown to other federal, state, and local

authorities by DOT, especially regarding

measures designed to protect health,

safety, and the environment. Finally,

even where preemption is clearly called

for and authorized, we would urge that

other authorities be allowed to address

special, unique local circumstances and

conditions.’’ (Northeast Waste

Management Officials’ Association)

As we have stated, one of the goals of

this rulemaking is to assure nationally

uniform standards applicable to

32424 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

functions related to preparation for and

the actual movement of hazardous

materials in commerce. We agree with

industry commenters that the

preemption provisions of federal hazmat

law are critical to achievement of this

goal. However, we also agree with state

and local government commenters that

state and local governments have a

legitimate role in the regulation of

hazardous materials at fixed facilities

and that this role should be

accommodated to the extent possible

within the context of a nationally

uniform hazardous materials

transportation safety regulatory

program.

D. Pre-Transportation Activities and

Specification Packagings

Most commenters to both the 1996

and the 1999 ANPRMs state that

activities performed in advance of

transportation to prepare a shipment of

hazardous materials for transportation

in commerce should be subject to

exclusive federal regulation under the

HMR. Such activities include

determining the hazard class of a

material, preparing shipping papers,

selecting appropriate packaging,

marking and labeling the package, and

placarding the transport vehicle.

Similarly, commenters state that

activities related to the specifications for

packagings authorized for transportation

of hazardous materials in commerce,

including all testing, retesting,

reconditioning, and reuse requirements,

should be subject exclusively to the

HMR.

E. ‘‘Transportation in Commerce’’

Commenters to the supplemental

ANPRM generally indicate that the

major issue for this rulemaking is how

the term ‘‘transportation in commerce’’

is applied for purposes of regulation

under the HMR. Thus, commenters

addressed questions related to this

definition in considerable detail.

Offeror intent. Commenters who

support a broad application of the term

‘‘transportation in commerce’’ to

include all activities related to the

handling and storage of a hazardous

material that is intended for shipment

generally state that such a broad

application is necessary to assure

national uniformity of regulations

applicable to the transportation of

hazardous materials. One commenter

states that, absent national uniformity,

‘‘shippers and carriers would be

required to comply with a myriad of

different and often conflicting state and

local regulations that would

substantially burden the free flow of

goods in * * * commerce, and cause

potentially conflicting and confusing

regulatory schemes.’’ (HM–223 Working

Group) Another suggests that

‘‘[a]llowing multiple agencies to

regulate various aspects of hazmat

transportation (a) unduly burdens

interstate commerce, (b) increases the

risk to public safety, (c) increases costs

to transporters, shippers, consignees,

and ultimately consumers, and (d)

creates excessive administrative

burdens.’’ (American Trucking

Associations)

For these commenters, transportation

in commerce is a continuum that begins

with an intention to ship a hazardous

material and ends when that hazardous

material is unloaded at its ultimate

destination. Included on this continuum

are all activities related to preparation of

the hazardous material for shipment;

loading of the hazardous material into a

packaging or container authorized for

transportation by the HMR; storage of

the package at the offeror’s facility prior

to its acceptance by a carrier; intrafacility movements of the package;

movement of the package by rail car,

motor vehicle, aircraft, or vessel to its

ultimate destination; storage of the

package at any point prior to its

delivery; storage of the package at the

facility that is its ultimate destination;

intra-facility movements of the package

at its ultimate destination; and

unloading of the hazardous material at

its ultimate destination.

To assure national uniformity, these

commenters believe that all of the above

activities should be under the exclusive

regulatory authority of the HMR. We

disagree. This approach significantly

expands the scope of the HMR as

currently applied to activities that

arguably are not part of ‘‘transportation’’

as that term is commonly understood.

Specifically, some activities to which

these commenters suggest that the HMR

should apply are neither pretransportation activities performed to

prepare hazardous materials for

transportation in commerce nor

transportation activities that involve the

actual movement of hazardous materials

in commerce. For example, storage of a

hazardous material at an offeror facility

is not a pre-transportation activity

conducted to prepare the hazardous

material for transportation in commerce.

Similarly, storage of a hazardous

material at a consignee facility after

delivery by a carrier but before the

hazardous material is removed from a

package is not movement of that

material in commerce since movement

in commerce is complete.

If we apply the HMR broadly as

suggested by some commenters, this

‘‘offeror intent’’ approach would have

the effect of limiting and, perhaps,

precluding regulation of hazardous

materials at fixed facilities by state and

local governments and could affect

other federal programs, as well. Federal,

state, and local programs for

environmental protection, worker

protection, community right-to-know,

fire protection, building codes, and

zoning could be adversely affected by

extending the Secretary of

Transportation’s regulatory authority to

an expanded set of hazardous materials

activities at fixed facilities. For example,

one commenter opposed to this

approach suggests that, if implemented,

‘‘this option would essentially remove

all hazardous waste storage and

generator facilities from having to

comply with [Resource Conservation

and Recovery Act] storage and

accumulation requirements, allowing

unlimited storage in areas [that] might

not have secondary containment or

other release controls, simply because

the hazardous waste is packaged in

preparation for shipment at some future

date.’’ (Arkansas Department of

Environmental Quality)

Further, the ‘‘offeror intent’’ approach

to clarifying the term ‘‘transportation in

commerce’’ could result in a regulatory

regime that would be very difficult both

to comply with and enforce.

Commenters who support the ‘‘offeror

intent’’ approach state that ‘‘intent is a

legal standard. While evidence of intent

may not be established by direct proof,

it can be inferred from facts and

circumstances.’’ (Association of Waste

Hazardous Materials Transporters)

Commenters suggest several possible

indicia of ‘‘intent’’ for compliance and

enforcement purposes—placing a

hazardous material in an authorized

packaging or container, preparing

shipping papers, affixing labels to

packages, or statements by the offeror.

One commenter states that ‘‘[t]he

combination of packaging marking and

labeling/placarding is a clear indication

that the hazardous material is intended

for transportation. There would be no

reason to go through this step if the

product is not intended to be

transported. The expense associated

with selection of a specification

[packaging] is typically greater than

non-specification packaging. Materials,

not intended for transportation, would

not [be placed in] specification

packaging for intra-plant transfers.’’

(Farmland) We do not agree.

An approach to compliance and

enforcement that offers no clear

standards either for regulated entities or

enforcement officials would be highly

subjective and would require a case-bycase analysis in almost every instance to

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32425

determine if a particular hazardous

materials package was intended for

transportation in commerce and, thus,

subject to the requirements of the HMR.

For example, as one commenter states,

storing a hazardous material ‘‘in a DOT

approved container does not always

signify intent to transport. Often a 55-

gallon drum is an ideal accumulation

container for material [that] may or may

not be intended for transportation.’’

(Pennsylvania Department of

Environmental Protection) Another

commenter notes that ‘‘[m]any facilities

accumulate hazardous materials in

‘DOT approved’ containers, but do not

intend to ‘offer it for transportation’ at

that time. Additionally, facilities receive

hazardous materials in DOT approved

packaging.’’ (Arkansas Department of

Environmental Quality) Further, ‘‘a

facility may decide to use DOT

specification packaging to protect

employees and patients when moving

waste from healthcare treatment rooms

to on-site storage areas even if disposing

of the waste on-site. In addition, a

facility may use DOT specification

packaging to fulfill the requirements in

OSHA’s Bloodborne Pathogens Standard

in a cost-effective manner regardless of

transport.’’ (Medical Waste Institute)

Using a properly labeled and marked

container also assures compliance with

OSHA’s hazard communication

regulations, which require consignees to

retain the labels and placards required

by the HMR on packages until they have

been emptied.

Similarly, preparation of shipping

papers does not always indicate an

imminent intent to transport a

hazardous material in commerce.

Shipping papers may be prepared well

in advance of package preparation or, in

the case of multiple shipments of the

same material, a single permanent

shipping paper may be used for a

number of shipments. In the case of

hazardous waste shipments, hazardous

waste generators may ‘‘complete a

hazardous waste manifest (hazardous

materials shipping paper) days or weeks

prior to a prearranged site pick-up

* * * some times without even

contacting the transporter.’’ (New Jersey

Department of Environmental

Protection)

We do not believe that it is possible

to develop an enforceable means of

determining the applicability of the

HMR to a given shipment based solely

on ‘‘intent.’’ As a commenter notes,

basing this determination on an offeror’s

intent for the package could result in the

following enforcement scenario:

(a) If hazardous materials are on a

transportation vehicle at a loading dock, but

fail to have proper USDOT marking, then the

offeror can allege to a USDOT inspector that

the materials are not intended for

transportation and are not subject to HMR.

Although this may subject the offeror to

requirements of local or state government,

the USDOT inspector is not empowered to

enforce those requirements * * *

(b) Likewise if the inspector was a local or

state government agency inspecting for

[hazardous waste compliance] then the

offeror can allege the materials are intended

for transportation and are not subject to local

or state government regulations. (New Jersey

Department of Environmental Protection)

It is true that a person’s statement

with respect to his intent to offer a

package for transportation that

contradicts all other facts and

circumstances related to that shipment

need not frustrate enforcement efforts.

For example, if a shipper denies that a

shipment sitting on a loading dock with

shipping documentation is in fact

intended for transportation, an

enforcement official is free to consider

that statement in combination with

other facts and circumstances in

determining appropriate enforcement

action. However, basing the

applicability of the HMR solely on a

determination of a shipper’s intent

would generally result in a regulatory

regime that would be confusing for both

the regulated industry and federal and

state enforcement personnel.

For the reasons outlined above, we do

not agree with commenters who suggest

that offeror intent should be the

determining factor for applicability of

the HMR. The ‘‘intent’’ approach is

inconsistent with federal statutes that

provide OSHA with broad authority to

protect workers from the risks

associated with hazardous materials at

fixed facilities. OSHA’s authorizing

legislation generally prohibits OSHA

from imposing regulations where other

federal agencies exercise statutory

authority to issue or enforce regulations

applicable to worker safety. Expanding

the scope of the term ‘‘transportation in

commerce’’ and, thus, the applicability

of the HMR, to include activities such

as storage at offeror or consignee

facilities could hinder OSHA in

exercising its statutorily granted

authority with respect to such activities.

A broad interpretation of

‘‘transportation in commerce’’ might

also adversely affect several EPA

programs. (See ‘‘OSHA and EPA

Regulations,’’ ‘‘OSHA Programs and

Regulations,’’ and ‘‘EPA Programs and

Regulations’’ below for a more detailed

discussion of EPA and OSHA statutory

authorities and regulatory programs.)

Further, the ‘‘intent’’ approach limits

the ability of state and local

governments to develop communitybased solutions to issues such as zoning

and community right-to-know. Strong

preemption authority under federal

hazmat law requires DOT to preempt

many state and local laws and

regulations concerning hazardous

materials transportation that are not the

same as the federal requirements.

Expanding the scope of the term

‘‘transportation in commerce’’ to

include the activities proposed by

commenters who advocate the ‘‘intent’’

approach would extend the

applicability of the HMR and,

consequently, federal hazmat law’s

preemption provisions to areas

traditionally regulated by state and local

governments. (See ‘‘State/Local

Requirements and Preemption’’ below

for a more detailed discussion of the

preemption provisions in federal

hazmat law.)

Movement on public rights-of-way.

Most commenters from state and local

government agencies with responsibility

for environmental protection support a

narrow application of the term

‘‘transportation in commerce.’’ In their

view, transportation in commerce

begins when a transportation vehicle

physically leaves an offeror’s place of

business. As one commenter states, ‘‘49

U.S.C. 5102(12) defines transportation

as the ‘movement of property * * *’ not

the selection of packaging materials, etc.

‘Movement of property’ constituting

transportation does not occur until the

property is on a transport vehicle. DOT

regulations should not apply until

‘movement’ begins on a public right-ofway, railroad or water or air route.’’

(Pennsylvania Department of

Environmental Protection)

Under this approach, transportation

in commerce would begin when a

shipment exits an offeror facility and

enters a public right-of-way and ends

when the shipment exits the public

right-of-way at a facility that may or

may not be the destination indicated on

shipping documentation. Loading of a

hazardous material onto a transport

vehicle or into a bulk packaging,

unloading of a hazardous material from

a transport vehicle or a bulk packaging,

storage of a hazardous material at an

offeror facility, and storage of a

hazardous material at a consignee

facility would not fall within the scope

of the term ‘‘transportation in

commerce’’ and, thus, would not be

subject to the HMR. Commenters who

support this approach are concerned

that the scope of the HMR not be so

broad as to preempt ‘‘any state, county,

or city [hazardous materials] storage

requirement * * * This includes

secondary containment, transfer

equipment, operation of transfer

32426 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

equipment, storm water systems, storage

of incompatible chemicals and site

operating procedures that would protect

public health and safety and the

environment.’’ (Washington State

Department of Ecology)

This approach provides a clear

dividing line for determining when a

hazardous material is in transportation

in commerce and subject to the HMR

and when such materials are out of

transportation and potentially subject to

regulations of EPA, OSHA, or state and

local governments. Thus, this approach

enhances both compliance and

enforcement. Further, this approach

provides communities with wide

latitude to develop community- or sitespecific solutions to threats to safety

posed by hazardous materials. In the

words of one commenter, this approach

‘‘respects the rights of states and local

governments to maintain their own

regulatory programs, designed to fit

their own needs and priorities. These

programs cover a broad range of issues,

such as emergency planning, fire

protection, building codes, and

hazardous materials handling

safeguards.’’ (Maine Department of

Environmental Protection)

However, the flexibility this approach

provides to state and local governments

also has the potential to compromise

safety by undermining the national

uniformity of the HMR. By narrowly

applying the term ‘‘transportation in

commerce’’ to exclude carrier loading

and unloading operations, for example,

this approach permits state and local

governments to regulate such operations

and, thus, could subject hazardous

materials carriers to a number of

different requirements as they transport

hazardous materials from community to

community or from state to state. Such

an outcome would defeat one of the

chief purposes of federal hazmat law,

the HMR, and this rulemaking—that is,

promotion of a national, uniform set of

standards that apply to the

transportation of hazardous materials in

commerce. As one commenter notes,

‘‘The principle of regulatory uniformity

has been the basis for the safe, efficient

transportation of hazardous materials

since the Hazardous Materials

Transportation Act * * * was enacted

in 1975. Only DOT has been specifically

directed by Congress to provide ‘greater

uniformity’ in the regulation of

hazardous materials while in

transportation in order to promote ‘the

public health, welfare, and safety.’

* * * The underlying principle of

[federal hazmat law] is that regulatory

uniformity facilitates compliance and

enhances safety, particularly as the law

relates to non-federal requirements.

[Federal hazmat law] is not structured

as other environmental or worker safety

laws that set minimum standards that

can be exceeded by non-federal

entities.’’ (Association of Waste

Hazardous Materials Transporters)

Further, this approach, like the offeror

intent approach discussed above, is not

consistent with federal hazmat law.

Under this option, all loading and

unloading operations would be

excluded from regulation under the

HMR. However, in defining

‘‘transportation’’ as ‘‘the movement of

property and loading, unloading, and

storage incidental to the movement,’’

the law clearly intends the Secretary of

Transportation’s jurisdiction over

hazardous materials in transportation to

include those loading, unloading, and

storage operations that are part of the

transportation process.

Carrier possession. Some commenters

advocate an approach to defining

transportation in commerce that is

keyed to a carrier’s possession of

hazardous materials for purposes of

transporting it. ‘‘ ‘Transportation’ ***

occurs when a carrier (that is, the entity

used or engaged for the purpose of

transport) has control over activities in

which the hazardous material is

handled, regardless of mode of

transportation or location of the activity

being performed.’’ (American Forest and

Paper Association) Under this approach,

‘‘transportation in commerce’’ begins

when a carrier accepts and exercises

control over a hazardous material for

purposes of transporting it and ends

when the carrier relinquishes control of

the shipment. ‘‘Transportation in

commerce’’ would include hazardous

materials loading and unloading

operations when performed by a carrier

and temporary storage of a hazardous

material while in the care, custody, and

control of a carrier. ‘‘Care, custody, and

control’’ would be defined as ‘‘having

the hazardous materials physically on or

in a transport vehicle * * * [I]n the

instances where a * * * carrier controls

the loading and/or unloading

operations, the * * * carrier should be

held responsible for the process * * *’’

(American Trucking Associations)

This approach provides a definitive

line for determining the applicability of

the HMR. Hazardous materials in the

care, custody, and control of a carrier,

when acting as such, for purposes of

transportation would be clearly in

transportation in commerce and subject

to the HMR. Hazardous materials at

offeror or consignee facilities clearly

would not be in transportation in

commerce and subject to applicable

state and local government requirements

for storing and handling hazardous

materials at fixed facilities.

Further, keying ‘‘transportation in

commerce’’ to carrier custody and

control of a hazardous material provides

hazardous materials carriers with a

nationally uniform transportation safety

standard. The HMR would apply to the

transportation operations of hazardous

material carriers. States and local

governments could not impose

requirements on these carriers that

conflicted with or were inconsistent

with the HMR.

At the same time, this approach

accommodates state and local

government regulation of hazardous

materials at fixed facilities within their

jurisdictions. Issues related to fire

protection, emergency preparedness,

community right-to-know, zoning, and

building codes, for example, could be

handled by state and local government

agencies in the best position to evaluate

problems and develop communitybased solutions. ‘‘State and local laws

and ordinances are usually tailored to

meet localized concerns, conditions,

and appetencies [that] cannot be

addressed effectively by substituting a

one-size-fits-all preemptive regulation.’’

(Arkansas Department of Environmental

Quality)

Finally, this approach is consistent

with the definition of ‘‘transportation’’

contained in federal hazmat law—‘‘the

movement of property and loading,

unloading, and storage incidental to the

movement.’’ Movement of property

necessarily involves a carrier.

Elsewhere, as one commenter notes,

Congress stated, ‘‘The phrase ‘services

in connection with’ as used in the

definition of transportation * * * has

been uniformly construed to mean

services rendered while [a] shipment is

in custody and control of [a] carrier, or

service [that a] carrier is legally

obligated to perform (49 USCS 10102, n

6).’’ (American Forest and Paper

Association)

F. OSHA and EPA Regulations

On December 29, 1970, Congress

enacted the Occupational Safety and

Health Act of 1970 (OSH Act) for the

purpose of assuring safe and healthy

workplaces. Under the OSH Act, every

employer engaged in a business

affecting commerce has a general duty

to furnish each of its employees a

workplace free from recognized hazards

causing, or likely to cause, death or

serious physical harm. In addition,

employers are required to comply with

all safety and health standards issued

under the OSH Act that are applicable

to working conditions involved in their

businesses.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32427

OSHA has promulgated a number of

regulations that address the handling of

hazardous materials at fixed facilities.

These include regulations governing

process safety management of highly

hazardous chemicals and requirements

for handling and storage of specific

hazardous materials, such as

compressed gases, flammable and

combustible liquids, explosives and

blasting agents, liquefied petroleum

gases, and anhydrous ammonia. OSHA

regulations also address hazard

communication requirements at fixed

facilities, including container labeling

and other forms of warning, material

safety data sheets, and employee

training. In addition, facilities that

handle and store hazardous materials

must comply with OSHA regulations

that address more general types of

workplace hazards, such as walking and

working surfaces, means of egress,

noise, air quality, environmental

control, personal protective equipment,

and fire protection.

The mission of the U.S.

Environmental Protection Agency is to

protect human health and the natural

environment from pollution. More than

a dozen major statutes or laws form the

legal basis for EPA’s programs. Several

of these statutes establish programs

covering facilities that handle hazardous

materials. They include:

• The Emergency Planning and

Community Right-to-Know Act (EPCRA;

42 U.S.C. 11011 et seq.) requires

facilities to provide information

concerning the hazardous materials they

have on site to states, local planners, fire

departments, and, through them, to the

public. This information provides the

foundation for both community

emergency response plans and publicindustry dialogues on risks and risk

reduction. EPCRA also requires facilities

to report releases of certain hazardous

materials to state and local emergency

responders.

• The Clean Air Act (42 U.S.C. 7401

et seq.) establishes a general duty for

facility owners or operators to identify

hazards that may result from accidental

releases of extremely hazardous

substances, design and maintain a safe

facility as needed to prevent such

releases, and minimize the

consequences of releases that do occur.

EPA has promulgated a list of

substances that, in the event of an

accidental release, are known to cause

or may be reasonably expected to cause

death, injury, or serious adverse effects

to human health or the environment.

EPA also has established a threshold

quantity for each listed chemical.

Stationary sources that have more than

a threshold quantity of a regulated

substance in a process are subject to the

accident prevention regulations

promulgated by EPA, including the

requirement to develop risk

management plans.

• The Resource Conservation and

Recovery Act (RCRA; 42 U.S.C. 321 et

seq.) gave EPA the authority to control

hazardous waste from ‘‘cradle to grave.’’

This includes the generation,

transportation, treatment, storage, and

disposal of hazardous waste. RCRA

requires hazardous waste transportation

regulations to be consistent with

transportation regulations issued under

federal hazmat law.

• The Clean Water Act (33 U.S.C.

1251 et seq.) establishes authority for

the Spill Prevention, Control, and

Countermeasure (SPCC) program for

non-transportation-related facilities. The

SPCC regulations are designed to

prevent the discharge of oil from nontransportation-related onshore and

offshore facilities into or onto the

navigable waters of the United States or

adjoining shorelines.

Commenters to the 1996 and 1999

ANPRMs have varied opinions as to the

appropriate relationships between the

HMR and the OSHA regulations and the

HMR and EPA regulations. Commenters

generally state that ‘‘workers need to be

protected from harm in the workplace

and that OSHA is the lead agency for

workplace safety.’’ (American Trucking

Associations) In addition, commenters

generally recognize the ‘‘importance of

protecting against degradation of air,

water, and land (the ‘total environment’)

* * * as it relates to the public’s wellbeing (i.e., beyond the fenceline).’’

(American Forest and Paper

Association) Commenters further state

that ‘‘[a]ll affected agencies should share

a common goal to avoid duplicative or

inconsistent rules that are often the

consequence of competing jurisdictional

authority.’’ (Association of Waste

Hazardous Materials Transporters)

However, commenters do not agree on

how this goal can be achieved.

Most commenters accept a degree of

shared RSPA–OSHA–EPA jurisdiction

where hazardous materials safety is

concerned because ‘‘[t]ransportation of

hazardous materials affects and is

affected by regulations of other Federal

agencies addressing worker safety and

environmental protection.’’ (Utility

Solid Waste Activities Group) RSPA and

OSHA may share regulatory

responsibility for certain activities

involving hazardous materials because

‘‘[o]ther regulations, not in conflict with

the HMR may enhance safety of the

workers, and general public.’’

(Farmland) Thus, ‘‘[w]hen a consignor

designates a material as ‘hazardous’ and

classifies it according to the HMR, no

other government agency should be

allowed to alter the class or name as a

condition for transport. However, other

aspects of the material’s environment

can be regulated by other government

agencies.’’ (Association of Waste

Hazardous Materials Transporters)

Similarly, ‘‘storage of non-bulk packages

in warehouses on the plant site are

subject to applicable fire and building

code standards, OSHA and EPA

requirements, and applicable state and

local requirements (although clearly the

package itself would remain subject to

the HMR). Operational standards for use

of mechanical package handling

equipment should be prescribed by

agencies other than DOT, though those

agencies should consult with DOT when

developing those standards. Workers

who handle packages after filling on the

chemical plant site are subject primarily

to OSHA worker safety standards, but

also to DOT standards, such as training

requirements and attendance

requirements.’’ (HM–223 Working

Group) In addition, ‘‘storage at an

interim transfer facility [is]

transportation-related and subject to

RSPA packaging standards, [but] the

fixed facility itself should not be subject

to the HMR, as standards of other

agencies * * * adequately cover this.’’

(California Department of Toxic

Substances Control) Further, ‘‘[f]ire

codes, zoning laws, right-to-know, and

risk management requirements should

apply to storage of hazardous materials.

However, such shipments must remain

under DOT’s jurisdiction.’’ (E.I Dupont

de Nemours and Company) Another

commenter declares, ‘‘Federal, state,

and local agencies must be allowed to

fulfill their administrative functions in

protecting human health, safety, and the

environment * * * Altogether, these

requirements create safer environments

and more effective responses to

discharges.’’ (New Jersey Department of

Environmental Protection) Where OSHA

and EPA have established

comprehensive regulatory programs,

such as OSHA’s process safety

management program and EPA’s risk

management program for manufacturing

processes, ‘‘[a]dditional requirements

under the HMR for * * *

manufacturing processes would be

burdensome and create confusion by the

overlapping of jurisdictional boundaries

that are specifically identified by the

preeminent authorities as delineated for

each government agency.’’ (PCS

Nitrogen)

The relationship of the HMR to the

OSHA worker protection regulations is

complicated by a provision in federal

32428 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

hazmat law that expressly gives OSHA

shared jurisdiction with the Secretary of

Transportation in four specific areas:

training, handling criteria, registration,

and motor carrier safety permits. 49

U.S.C. 5107(f)(2). Several commenters

believe that this broadening of OSHA’s

jurisdiction to non-training areas of

hazardous materials transportation

safety resulted from a drafting error that

occurred when Congress enacted the

Hazardous Materials Transportation

Uniform Safety Act of 1990, Pub. L.

101–615 (HMTUSA) and was

perpetuated when HMTUSA

subsequently was codified at 49 U.S.C.

5101–5127. As one commenter states,

‘‘[w]hile there was general agreement in

1990 to grant shared jurisdiction for

training with OSHA, it was never

intended for DOT to relinquish its

authority in any of the affected areas nor

to have shared jurisdiction in any area

besides training. Therefore, before RSPA

can answer the question, in rulemaking,

where jurisdictional lines should be

drawn, Congress should amend section

5107 to reflect its original intent.’’

(American Trucking Associations)

Another commenter asserts that those

who wrote the 1990 law that allows this

shared jurisdiction agree that the broad

grant of authority is the result of a

typographical error. ‘‘At the federal

level, there is a presumption that

Congress enacts law with full

knowledge of existing law. However,

that is not always the case and

unintended consequences can result.

Those who wrote the 1990 provision of

law, now codified at 49 U.S.C.

5107(f)(2), which allows OSHA to share

jurisdiction with DOT over hazmat

worker training, hazardous materials

handling criteria, permitting of motor

carriers of hazardous materials, and the

registration of persons engaged in the

transportation of these materials, have

stated this broad grant of authority was

the result of a typographical error and

that Congress only intended to affirm

OSHA shared jurisdiction in the area of

hazmat worker training. Others may

wish history to be otherwise, but it is

not.’’ (Association of Waste Hazardous

Materials Transporters)

On the other hand, several

commenters see no sound reason for

changing the joint authority in section

5107 by eliminating, altering, or

confusing the current regulatory

scheme. ‘‘The law is clear in its

determination of joint responsibility for

the training of hazmat employees * * *

We believe the issue was contemplated

when Congress crafted the law and

intended there be joint responsibility to

ensure hazmat employers provided the

necessary training to provide maximum

coverage for the employee’s protection.’’

(Brotherhood of Locomotive Engineers)

Some commenters believe that a line of

separation to delineate activities and/or

facilities over which the HMR should

apply to the exclusion of OSHA

requirements could adversely affect

worker safety. ‘‘[I]t is inevitable that

confusion or degradation of existing

requirements could arise if shared

jurisdictions are changed. The training

perspective offered by OSHA and its

associated requirements for personal

protective equipment; monitoring;

medical surveillance; evacuation for

hazmat employees; and hazard

communication must be uniformly

administered to all elements of industry.

In the haste to eliminate regulatory

overlaps among regulatory agencies it

must not be forgotten that OSHA

requirements place an emphasis on

employee safety and that focus should

not be diluted to promote more efficient

and effective compliance with safety

standards.’’ (Brotherhood of Locomotive

Engineers) Another commenter agrees

and states, ‘‘[w]ith respect to the

relationship between RSPA and OSHA

regulation, [we] particularly [draw] to

RSPA’s attention the provision at

section 5107(f)(2) of Title 49 of the U.S.

Code. That section expressly provides

that regulation by the Secretary of

Transportation with respect to hazmat

handling, training, permitting, and other

activities does not oust OSHA from

concurrent jurisdiction over those

subjects.’’ (International Brotherhood of

Teamsters)

Based on their respective statutory

authorities, both DOT and OSHA

regulate hazardous materials. Prior to

1990, to the extent that DOT’s regulation

of hazardous materials and OSHA’s

regulation of hazardous materials

overlapped, DOT’s regulations took

precedence. Section 4(b)(1) of the OSH

Act provides that nothing in that Act

applies to working conditions of

employees where other federal agencies

exercise statutory authority to prescribe

or enforce standards or regulations

affecting occupational safety or health.

29 U.S.C. 653(b)(1). Consequently,

where DOT exercised its authority to

prescribe or enforce standards or

regulations affecting occupational safety

or health in a particular area, OSHA was

precluded from regulating in that same

area, without exception.

In 1990, Congress enacted HMTUSA.

Among other things, HMTUSA limited

the preemptive effect of the HMR on

OSHA regulations in certain specified

areas. Specifically, section 1805 of the

Act was amended to read as follows:

For purposes of section 653(b)(1) of title

29, no action taken by the Secretary [of

Transportation] pursuant to this section shall

be deemed to be an exercise of statutory

authority to prescribe or enforce standards or

regulations affecting occupational safety or

health. 49 U.S.C. App. 1805(b)(3). (Emphasis

added.)

This is the so-called ‘‘reverse 4(b)(1)’’

provision.

The words ‘‘pursuant to this section,’’

found in section 1805(b)(3) referred to

the entirety of § 1805, entitled

‘‘Handling,’’ and not solely to

subsection 1805(b)(3), which pertained

to training. Proponents who believe this

is a drafting error contend that Congress

intended to use the word ‘‘subsection’’

instead of ‘‘section’’ in section

1805(b)(3). They argue that the

references back to highway safety

permits and registration make no sense

and demonstrate their point.

The 1994 codification of federal

hazmat law, however, reinforced the

interpretation that the words ‘‘pursuant

to this section’’ referred to former

section 1805 in its entirety. The purpose

of this action was to ‘‘clean-up’’ several

related federal transportation laws,

‘‘restating’’ them in a format and

language intended to be easier to

understand without changing

substantive content.

The ‘‘reverse 4(b)(1)’’ provision was

codified at 49 U.S.C. section 5107(f)(2).

The language was revised to read as

follows:

An action of the Secretary of

Transportation under subsections (a)–(d) of

this section and sections 5106, 5108(c)–(g)(1)

and (h), and 5109 of this title is not an

exercise, under section 4(b)(1) of the

Occupational Safety and Health Act of 1970

(29 U.S.C. 653(b)(1)), of statutory authority to

prescribe or enforce standards or regulations

affecting occupational safety or health.

49 U.S.C. section 5107(f)(2).

Section 5107(f)(2) indicates that

RSPA’s exercise of authority under

section 5106 (‘‘Handling Criteria’’) of

federal hazmat law, as well as under

other specified sections, does not

constitute an exercise of authority under

section 4(b)(1) of the OSH Act that

would result in preemption of OSHA

regulations. Those other specified areas

are: (1) registration under 49 U.S.C.

section 5108(c)–(g)(1) and (h); (2) motor

carrier safety permits under 49 U.S.C.

section 5109; and (3) hazmat employee

training requirements under 49 U.S.C.

section 5107(a)–(d). Consequently, the

plain language of section 5107(f)(2)

nullifies the HMR’s preemptive effect on

OSHA regulations in the specified areas.

The legislative history of federal hazmat

law sheds no light on whether the 1990

extension of OSHA authority was

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32429

intentional. In these circumstances,

RSPA is bound by the literal language

of section 5107(f)(2).

EPA is also authorized to regulate

hazardous materials, and its statutes do

not expressly preclude EPA from

regulating hazardous materials activities

regulated by RSPA, although EPCRA

does exempt ‘‘transportation, including

the storage incident to such

transportation’’ from many of its

requirements. While most of EPA’s

programs focus on fixed facilities, EPA

also regulates transportation of

hazardous wastes under RCRA, as noted

above. Moreover, loading, unloading,

and storage of hazardous materials

generally occur at fixed facilities.

Recognizing the potential for regulatory

overlap, EPA has taken into account

RSPA regulation of hazardous materials

in deciding whether and how to

regulate. Consequently, the decisions

RSPA makes in this rulemaking may

affect some EPA programs. The nature

and extent of that effect will depend on

EPA’s interpretation and

implementation of its statutes and

regulations, some of which we describe

further below.

Some commenters suggest that

regulatory inconsistencies among

agencies with responsibilities for

hazardous materials safety could be

avoided if RSPA incorporated ‘‘within

49 CFR a reference to pertinent

regulations or regulatory codes

developed by other entities’’ for

application to hazmat employees. (FMC

Corporation) ‘‘Where there is a need for

an OSHA standard to protect a hazmat

employee of a motor carrier during the

normal course of transportation * * *

RSPA should adopt that standard, by

reference, into the HMR. By doing so,

the standard adopted would prevail and

be uniform throughout the United States

* * * Similarly, RSPA should consider

incorporating EPA’s environmental

regulations that impact hazardous

materials during the normal course of

transportation.’’ (American Trucking

Associations) We do not agree.

First, OSHA and EPA are authorized

by statute to develop broad programs for

worker safety and environmental

protection. OSHA is the agency tasked

by Congress with ensuring safety in the

workplace. EPA is the agency tasked

with protecting human health and the

natural environment. RSPA lacks the

expertise and the resources to establish

a credible OSHA safety program within

RSPA for all workers who perform

functions under the HMR. RSPA has a

narrower role to play in the area of

transportation worker safety—ensuring

that there are adequate protections for

transportation employees during the

transportation of hazardous materials in

commerce. Similarly, RSPA has neither

the resources nor the expertise to

address in a credible manner all the

environmental hazards posed by the

transportation of hazardous materials.

Again, RSPA has a more limited

environmental role—ensuring that

hazardous materials transported in

commerce are moved without release

under normal conditions of transport

from their point of origin to their

destination.

Second, the OSH Act and many of

EPA’s authorizing statutes permit states

to adopt and enforce regulations for

worker safety and environmental

protection that may be more stringent

than the federal regulations

promulgated by OSHA and EPA. By

contrast, federal hazmat law preempts

many state and local laws and

regulations applicable to hazardous

materials transportation that are not the

same as the federal requirements in the

HMR.

The relevant federal statutes do not

provide clear guidance as to the

preemptive effect OSHA and EPA

standards would have if RSPA

incorporated them into the HMR.

Incorporating OSHA and EPA

requirements into the HMR may prevent

states from adopting more stringent

worker safety and environmental

protection standards and would thus

undermine the intent of Congress as

expressed in the OSH Act and in EPA’s

authorizing legislation. On the other

hand, because the OSHA regulations are

promulgated under authority of the OSH

Act and EPA regulations under

authority of EPA’s authorizing statutes,

states may be permitted to adopt more

stringent requirements irrespective of

the preemption provisions of federal

hazmat law. Consequently, we do not

believe that incorporating certain OSHA

or EPA standards into the HMR would

result in uniform federal regulation of

transportation worker safety or

environmental protection in a manner

consistent with federal hazmat law, the

OSH Act, and the statutes authorizing

EPA’s programs.

Other commenters suggest that RSPA

and OSHA negotiate a memorandum of

understanding (MOU) that would

delineate each agency’s areas of

responsibility for worker protection at

hazardous materials facilities. We are

not convinced that such an effort is

necessary or desirable. MOU

negotiations can be lengthy and

resource-intensive. An MOU may be

difficult to develop to all parties’

satisfaction and may omit resolution of

facts and conditions that inevitably

arise, thereby failing to prevent the

problems it is designed to avoid.

Further, an MOU is a static document

and can require amendments when

policies change or its provisions become

outdated; while such amendments are

negotiated, application of the MOU may

have to be suspended for extended

periods of time. However, we agree with

commenters that RSPA and OSHA

should cooperate to assure that the HMR

and the OSHA regulations are

complementary, consistent, and clear.

We will consider all possible avenues

for enhancing our cooperative

relationship, including negotiation of an

MOU if both agencies agree that an

MOU is practicable and necessary.

We believe that a clarification of the

applicability of the HMR and how that

may affect the application of OSHA and

EPA regulations to specific hazardous

materials activities or facilities must be

made within the context of each

program’s authorizing statutes and

regulations. This approach involves

looking to Congressional and agency

intent as expressed in the body of

statutes and regulations exercising

federal jurisdiction over hazardous

materials where transportation and nontransportation activities intersect. The

OSH Act, EPA’s authorizing statutes,

and federal hazmat law express different

statutory purposes. Our task is to

interpret and implement federal hazmat

law in a way that fulfills its statutory

purpose and is consistent with the

statutory purposes of the OSH Act and

EPA’s statutes.

IV. Proposal

We agree with commenters that the

major issue for this rulemaking is how

the term ‘‘transportation in commerce’’

is applied for purposes of the HMR. For

the reasons stated above, we are

proposing to key this application to a

carrier’s possession of a hazardous

materials shipment. We believe that this

approach is most consistent with the

intent of federal hazmat law and with

other federal statutes governing the

regulation of hazardous materials at

fixed facilities. Further, we believe that

this approach assures national

uniformity of hazardous materials

transportation safety regulations while

permitting states, local governments,

and Indian tribes sufficient latitude to

develop community-specific regulations

to address local problems and issues.

The HMR would continue to apply to

certain activities performed by offerors

to prepare a hazardous material for

transportation. We propose a new term

to describe these activities—‘‘pretransportation functions.’’

‘‘Transportation in commerce’’ would

begin when a carrier takes physical

32430 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

possession of a hazardous materials

package or shipment for purposes of

transporting it and would continue until

delivery of the package to its consignee

or destination as evidenced by the

shipping documentation under which

the hazardous material is moving, such

as shipping papers, bills of lading,

freight orders, or similar documentation.

The HMR would apply to all carrier

activities after the carrier takes

possession of the hazardous material

from an offeror for purposes of

transporting it until the package is

delivered to its destination, including

loading and unloading activities

conducted by carrier personnel. For

purposes of the HMR, such activities

would be considered loading or

unloading ‘‘incidental to movement.’’ In

addition, the HMR would apply to

storage of a hazardous materials package

by any party between the time that a

carrier takes possession of the

hazardous material for purposes of

transporting it until the package is

delivered to its intended destination, as

evidenced by the shipping

documentation under which the

package is moving. Except for rail cars

stored on leased track, such storage

would be considered storage ‘‘incidental

to movement.’’ We are proposing and

requesting comment on two alternatives

for applying the HMR to rail cars stored

on leased track (see ‘‘Storage Incidental

to Movement’’ below for alternatives

discussion).

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

proposals in this rulemaking are

intended only to clarify the applicability

of the HMR to specific functions and

activities. It is not appropriate for DOT

to attempt to clarify the applicability of

other federal agencies’ statutes or

regulations to particular functions or

activities. However, it is important to

note that facilities at which pretransportation or transportation

functions are performed must comply

with applicable 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 must

also comply with applicable state and

local regulations for hazardous materials

handling and storage operations.

Facilities at which pre-transportation

or transportation functions are

performed may also be subject to EPA

and other OSHA regulations. For

example, facilities that store hazardous

materials may be subject to EPA’s risk

management, community right-to-know,

hazardous waste tracking and disposal,

and spill prevention, control and

countermeasure program requirements

and OSHA’s process safety management

and emergency preparedness

requirements. Questions as to the

applicability of EPA or OSHA

regulations to particular facilities or

operations should be directed to the

appropriate EPA or OSHA office.

Our proposal is described in more

detail in the following sections.

A. Packaging Specifications

Federal hazmat law and the HMR will

continue to apply, as they do currently,

to persons who manufacture, mark,

maintain, recondition, repair, or test

packagings or components thereof that

are represented, marked, certified, or

sold as qualified for use in the

transportation of hazardous materials in

commerce. Packaging integrity is critical

to safe transportation of hazardous

materials; therefore, it is imperative that

DOT exercise jurisdiction over

packaging requirements to the exclusion

of state and local governments. Further,

uniformity of packaging specifications

assures the safe and efficient movement

of hazardous materials across state lines

and international boundaries. Thus,

consistent with the preemption

provisions of federal hazmat law, the

Secretary’s regulatory jurisdiction in

this area must preempt state and local

law. It is important to note that a

packaging marked to certify that it

conforms to HMR requirements must be

maintained in accordance with

applicable specification requirements

whether or not it is in transportation in

commerce at any particular time.

B. Pre-Transportation Functions

The HMR currently apply to a number

of activities performed before a

hazardous materials shipment is

transported in commerce. Such

activities—or functions—include: (1)

Determining the hazard class of a

hazardous material; (2) selecting a

hazardous materials packaging; (3)

filling a hazardous materials packaging;

(4) securing a closure on a filled

hazardous materials package or

container or on one containing a residue

of a hazardous material; (5) marking a

package to indicate that it contains a

hazardous material; (6) labeling a

package to indicate that it contains a

hazardous material; (7) preparing a

hazardous materials shipping paper; (8)

providing and maintaining hazardous

materials emergency response

information; (9) reviewing a hazardous

materials shipping paper to verify

compliance with the HMR or

international equivalents; (10) for

persons importing a hazardous material

in to the United States, providing the

shipper and the forwarding agent at the

place of entry into the United States

with information as to the requirements

of the HMR that apply to the shipment

of the material while in the United

States; (11) certifying that a hazardous

material is in proper condition for

transportation in conformance with the

requirements of the HMR; (12) blocking

and bracing a hazardous materials

package in a freight container or

transport vehicle; (13) segregating a

hazardous materials package in a freight

container or transport vehicle from

incompatible cargo; and (14) selecting,

providing, or affixing placards for a

transport vehicle to indicate that it is

carrying hazardous materials.

These functions occur before

transportation in commerce begins, i.e.

before a carrier takes possession of the

hazardous material, but, as most

commenters agree, they have a direct

bearing on the safety of a hazardous

materials shipment in commerce and,

thus, should be subject to the HMR.

Further, regulation of these functions

must be uniformly applied and enforced

if a hazardous materials shipment is to

move smoothly, efficiently, and safely

from its point of origin to its

destination. Congress recognized the

importance of national uniformity in

these areas by creating a specific

preemption provision in section 5125(b)

applicable to state, local, and Indian

tribe requirements on: (1) the

designation, description, and

classification of hazardous material; (2)

the packing, repacking, handling,

labeling, marking, and placarding of

hazardous material; (3) the preparation,

execution, and use of shipping

documents related to hazardous

material and requirements related to the

number, contents, and placement of

those documents; (4) the written

notification, recording, and reporting of

the unintentional release in

transportation of hazardous material;

and (5) the design, manufacturing,

fabricating, marking, maintenance,

reconditioning, repairing, or testing of a

packaging or container represented,

marked, certified, or sold as qualified

for use in transporting hazardous

material.

In this NPRM, we propose to define

a new term—‘‘pre-transportation

function’’—to cover activities performed

prior to the transportation of a

hazardous material and to which the

HMR apply. The requirements in the

HMR for pre-transportation functions

apply to persons who offer hazardous

materials for transportation in

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32431

commerce or who cause hazardous

materials to be transported in

commerce. Persons who ‘‘cause’’

hazardous materials to be transported in

commerce include freight forwarders,

non-vessel operating common carriers,

freight brokers, and other entities that

may perform pre-transportation

functions. Any person who performs a

pre-transportation function is subject to

applicable requirements of the HMR.

We also propose to define ‘‘offer a

hazardous material’’ to mean the

performance of a pre-transportation

function under the HMR. In this way,

we intend to clarify that, consistent with

federal hazmat law, the HMR apply to

functions performed to prepare

hazardous materials for transportation

in commerce as well as to the actual

transportation of hazardous materials in

commerce.

Under this proposal, we would

continue to exercise our statutory

authority to inspect for compliance with

the HMR requirements applicable to

pre-transportation functions. We would

also 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, even if

transportation of the hazardous material

in commerce has not yet begun (i.e., the

carrier has not yet taken possession of

the material) or has not been performed

at all (i.e., undeclared shipments offered

for transportation). This approach is

consistent with our authority under

section 5103 of federal hazmat law (49

U.S.C. 5103) to regulate activities that

affect the safe transportation of

hazardous materials in commerce. Also,

as stated above, this approach is

consistent with Congress’ intent that the

HMR requirements applicable to the

activities we propose to define as ‘‘pretransportation functions’’ be applied

and enforced in a manner that promotes

uniformity in those areas.

It should be noted that several of the

pre-transportation functions identified

in our proposed definition generally

relate to loading of hazardous materials

into packagings or transport vehicles,

including filling of a packaging

(including a bulk packaging), securing

closures on a filled hazardous materials

package (including a bulk package) or

on one containing a residue of a

hazardous material, blocking and

bracing hazardous materials in a freight

container or transport vehicle, or

segregating hazardous materials

packages in a freight container or

transport vehicle from incompatible

cargo. These activities are regulated as

pre-transportation functions and not as

activities incidental to movement

because the carrier has not yet taken

possession of the material. In these

cases, transportation in commerce has

not yet begun. (See ‘‘Transportation

Functions Subject to the HMR’’ below

for a proposed definition of ‘‘loading

incidental to movement.’’)

C. Transportation That Is ‘‘in

Commerce’’

In this NPRM, we propose several

definitions to clarify the applicability of

the HMR to transportation functions and

the persons who perform them. Federal

hazmat law requires the Secretary of

Transportation to establish regulations

for the safe transportation of hazardous

materials in intrastate, interstate, and

foreign commerce. As noted above, the

law defines ‘‘transportation’’ and

‘‘commerce’’ separately. Further, federal

hazmat law authorizes the Secretary of

Transportation to apply these

regulations to persons who transport

hazardous materials in commerce or

cause hazardous materials to be

transported in commerce. Thus, in a

number of letters of interpretation

issued over the years, we have

explained that our statutory authority to

issue hazardous materials transportation

safety regulations extends, in addition

to pre-transportation and packaging

functions, only to transportation in

commerce or transportation for

commercial purposes. Persons who

transport hazardous material in

commerce or cause hazardous material

to be transported in commerce are

subject to the federal hazmat law and

the HMR. However, a government

entity, such as a state-chartered and

-funded university, is not subject to the

HMR as a carrier unless it transports

hazardous materials in furtherance of a

commercial enterprise (April 23, 1991

RSPA letter to the Department of

Energy; June 1, 1994 RSPA letter to The

Honorable Ronald V. Dellums; June 3,

1993 RSPA letter to the U.S. Department

of Energy; September 26, 1994 RSPA

letter to California Environmental

Protection Agency; August 12, 1999

RSPA letter to University of Colorado,

Boulder Campus). Similarly, we have

stated that the transportation of

hazardous materials by private

individuals in personal vehicles for

personal use is not subject to the HMR

(October 1, 1999 RSPA letter to

Raymond K. Barwin).

While we have declared in these and

other letters of interpretation that the

HMR do not apply to transportation of

hazardous materials in private motor

vehicles by private individuals for

personal use, or transportation of

hazardous materials by government

entities for noncommercial purposes,

this statement of applicability is not

formally expressed in the HMR. We

therefore propose to include in HMR a

section specifically stating that

noncommercial transportation of

hazardous materials is not subject to the

HMR. Noncommercial transportation

includes transportation of hazardous

materials by government employees for

government purposes and by private

individuals in private motor vehicles for

personal use.

We have historically considered

commerce to include all private—that

is, non-governmental—transportation of

hazardous materials except for

transportation in a personal vehicle for

the personal use of an individual. Thus,

noncommercial transportation does not

include transportation of hazardous

materials by not-for-profit entities. In

general, we regard the activities of an

entity to be its ‘‘business,’’ regardless of

whether it is organized for profit or not.

To the extent that an entity performs

activities for others, including its

shareholders and employees, it is

engaged in commerce. Thus, the fact

that an entity is established as a nonprofit organization is not relevant to the

determination of whether it performs

activities ‘‘in commerce.’’ A non-profit

entity may engage in commercial

activities to the same extent as a forprofit company. Not-for-profit entities

that offer or transport hazardous

materials are subject to all applicable

requirements of the HMR.

In letters of interpretation, we also

have clarified that the HMR do not

apply to intra-facility movements of

hazardous materials that take place

entirely on private property where

public access is denied or restricted. We

have explained that movements of

hazardous materials that take place

entirely within a private facility are not

subject to the HMR. If such movements

utilize or cross public roads, however,

they are subject to the HMR. (May 3,

1979 Materials Transportation Bureau

[RSPA predecessor agency] to the Olin

Corporation; September 15, 1981 FHWA

letter to Hooker Chemical Company;

March 25, 1983 RSPA letter to the

Assistant Fire Marshall for the State of

Kentucky; April 23, 1991 RSPA letter to

the Department of Energy; April 19,

1994 RSPA letter to California

Department of Justice; July 2, 1999

RSPA letter to Mr. Mark. R. Maki; and

August 19, 1997 RSPA letter to

Lockheed Martin Energy Systems, Inc.)

It should be noted, however, that these

letters of interpretation do not concern

baggage or packages offered to airlines

for transportation that are moved within

the contiguous boundaries of an airport.

32432 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

Baggage and packages that contain

hazardous materials are subject to

applicable HMR requirements even

when moving within the confines of an

airport facility.

One commenter suggests that the

HMR incorporate an exception from

regulation for the movement of

containerized, non-bulk hazardous

materials from one part of a facility to

another part across a public road.

‘‘Extensive DOT regulation under the

HMR is not needed to protect public

safety during such crossing * * * The

movement * * * associated with the

proposed road crossing exception would

occur only at the point of origin * * *

The personnel involved would be

trained per OSHA and EPA

requirements on how to handle

hazardous materials safely and how to

respond in the unlikely event of an

incident. On-site emergency response

personnel would be immediately

available to respond. Those facts

warrant the exclusion of a larger

quantity of material from the HMR

requirements during such crossings.’’

(The Boeing Company) We do not

believe such an exception is necessary.

In letters of interpretation, we have

indicated that use of a red traffic signal

or road closure to deny public access to

a public highway utilized for

movements of hazardous materials

between areas of the same facility makes

the portion of the highway to which

access is restricted private and that

movements of hazardous materials in

such circumstances would not be

subject to the HMR (December 30, 1998

RSPA letter to General Electric

Company). We have further explained

that ‘‘[i]f a road is used by members of

the general public (including

dependents of Government employees)

without their having to gain access

through a controlled access point,

transportation on (across or along) that

road is in commerce. On the other hand,

if access to a road is controlled at all

times * * * transportation on that road

is not in commerce.’’ (December 30,

1998 RSPA letter to General Electric

Company) Signs and automated access

control systems that warn the public

that an area is restricted and prevent

access to restricted areas are methods

that can be used to control public access

(December 12, 1997 RSPA letter to

Richland Operations Center,

Department of Energy). This NPRM

proposes to add a statement to the HMR

indicating that the HMR do not apply to

rail and motor vehicle movements of a

hazardous material that occur entirely

within a contiguous facility boundary,

other than at a transportation facility as

defined in this NPRM, where public

access is controlled even when such

movements are performed by a for-hire

carrier.

D. Transportation Functions Subject to

the HMR

As discussed above, in addition to

pre-transportation and packaging

functions, only transportation that is ‘‘in

commerce’’ is subject to regulation

under federal hazmat law. Federal

hazmat law defines ‘‘transportation’’ as

‘‘the movement of property and loading,

unloading, or storage incidental to the

movement.’’ However, federal hazmat

law does not define ‘‘movement ‘‘ nor

does it define ‘‘loading, unloading, or

storage incidental to movement.’’

Neither do the HMR currently define

these terms.

Movement. Clearly, the key word in

the definition of ‘‘transportation’’

included in federal hazmat law is

‘‘movement.’’ We propose to define

‘‘movement’’ to mean ‘‘the physical

transfer of a hazardous material from

one geographic location to another by

rail car, aircraft, motor vehicle, or

vessel.’’ A carrier ‘‘moves’’ a hazardous

material; thus, transportation in

commerce necessarily involves

activities performed by a carrier in

connection with the movement of a

hazardous material. In this NPRM, we

propose that, for purposes of

applicability of the HMR, transportation

in commerce begins when a carrier takes

physical possession of a hazardous

material for the purpose of transporting

it and continues until the package

containing the hazardous material is

delivered to its destination as indicated

on the shipping paper under which the

hazardous material is moving. All

loading, unloading, and storage

functions performed by a carrier in the

course of transporting a hazardous

material in commerce would be subject

to the requirements of the HMR.

Many hazardous materials shipments

are transported by private motor

carriers—companies that own the

hazardous materials they transport and

transport them in company-operated

vehicles driven by company personnel.

Commenters to the 1996 ANPRM and

the 1999 supplemental ANPRM state

that the HMR should apply in the same

manner to private and for-hire carriers.

As one commenter notes, ‘‘Distinctions

should not be made between private and

common carriers, as the function of the

activity is the same whether private or

common.’’ (HM–223 Working Group)

However, the nature of private carriage

makes it difficult to identify a point at

which a private carrier makes the

transition from offeror to carrier to

consignee for the purpose of

determining when the ‘‘carrier’’ takes

possession of a hazardous materials

shipment from the ‘‘offeror.’’ In this

NPRM, we propose that, for private

motor carriers, transportation in

commerce begins when a motor vehicle

driver takes possession of a hazardous

material for the purpose of transporting

it and continues until the motor vehicle

driver relinquishes possession of the

package at its destination and is no

longer responsible for performing

functions subject to the HMR.

Under this NPRM, a hazardous

material would be in transportation in

commerce until it reaches the final

destination as indicated on the shipping

paper under which the hazardous

material is moving, except where the

hazardous material is repackaged prior

to delivery or stored for purposes other

than transportation. For example, when

a hazardous material transported in a

rail tank car arrives at an intermodal

transfer facility where the material will

be transferred to several cargo tanks for

delivery to a consignee, transportation

in commerce ends when the rail carrier

relinquishes possession of the tank car

at the transfer facility. The transfer

facility will perform pre-transportation

activities in the process of transferring

the material to the cargo tanks and

preparing them for transportation.

Transportation in commerce would

begin when a highway carrier takes

possession of the hazardous material

from the transfer facility. Similarly,

when a hazardous material is

transported to and held at a storage

facility at the request of the consignor or

consignee, as indicated on shipping

papers under which the hazardous

material is moving, transportation in

commerce ends when the carrier places

the material in the storage facility, even

if it is owned by the carrier. Note,

however, that we are proposing and

requesting comment on two alternatives

for applying the HMR to rail cars stored

on leased track (see ‘‘Storage Incidental

to Movement’’ below for alternatives

discussion).

This proposal is consistent with

current HMR requirements and letters of

interpretation we have issued to clarify

the meaning of the term ‘‘transportation

in commerce.’’ For example, we have

explained that ‘‘a hazardous material is

considered ‘in transit’ * * * until it

reaches its final destination, provided it

has not been repackaged.’’ (December

17, 1990 letter to David K. Lindemuth

Company, Inc.)

Loading and Unloading Incidental to

Movement. Loading and unloading

‘‘incidental to movement’’ of a

hazardous material is loading or

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32433

unloading associated with such

movement. We therefore propose to

define these terms based on whether the

activities to which they refer are

associated with a carrier’s movement in

commerce of a hazardous material.

Using this approach, we propose to

define ‘‘loading incidental to

movement’’ to mean loading of a

hazardous material onto a transport

vehicle, aircraft, or vessel or into a bulk

packaging for purposes of transporting it

when performed by a person employed

by or under contract to a for-hire carrier

or, in the case of a private motor carrier,

when performed by the driver of the

motor vehicle into which the hazardous

material is being loaded immediately

prior to movement in commerce of the

hazardous material. We propose to

define ‘‘unloading incidental to

movement’’ to mean unloading of a

hazardous material from a transport

vehicle, aircraft, or vessel or from a bulk

packaging when performed by a person

employed by or under contract to a forhire carrier or, in the case of a private

motor carrier, when performed by the

driver of the motor vehicle from which

the hazardous material is being

unloaded immediately after movement

in commerce is completed. Loading and

unloading incidental to movement in

commerce would also include loading

and unloading of packaged hazardous

materials at facilities where such

packages are transferred from one

transport vehicle to another or from one

mode of transportation to another.

As proposed in this NPRM, hazardous

materials unloading operations

performed by consignees would not be

subject to the HMR. Consignee

unloading is not part of transportation

in commerce as we propose to apply

that term because it occurs after

movement in commerce is completed.

For the most part, this proposal is

consistent with current HMR

requirements and letters of

interpretation and administrative

decisions we have issued to clarify the

applicability of the HMR to unloading

operations from transport vehicles and

bulk packagings other than tank cars. As

long ago as 1978, we stated that

requirements in the HMR applicable to

cargo tank unloading end when the

activities of the carrier relative to a

given shipment end (November 24, 1978

Materials Transportation Bureau letter

to Dow Chemical). More recently, we

explained that the HMR requirements

governing cargo tank unloading

operations do not apply when the cargo

tank has been placed on the consignee’s

premises and the motive power has

been removed from the premises (March

23, 1999 RSPA letter to Great Lakes

Chemical Corporation).

For hazardous materials

transportation by rail tank car, however,

the proposals in this NPRM applicable

to hazardous materials unloading

operations represent a change from

current practice and interpretation.

Historically, the tank car unloading

requirements included in Part 174 of the

HMR have been applied to all unloading

operations. These requirements are set

forth in section 174.67 of the HMR and

include procedural and attendance

requirements. The requirements date

back to a time when tank cars were

unloaded while on a carrier’s track or

public siding in the center of or adjacent

to a populated area. Interpretations and

administrative determinations issued by

RSPA and FRA reflect this historical

application of the HMR. Thus, in an

administrative determination of

preemption applicable to certain

California and Los Angeles County

requirements for handling and

transportation of hazardous materials

(February 15, 1995; 60 FR 8773) and in

informal letters of interpretation

(February 14, 1984 FRA letter to W.R.

Grace & Co.), we recognized that section

174.67 applies to consignee unloading

and, therefore, that consignee unloading

of tank cars is ‘‘unloading that is

incidental to transportation’’ and subject

to requirements of the HMR.

Today, a large proportion of

hazardous materials tank cars are

unloaded by consignees over extended

periods of time directly into

manufacturing processes at privately

owned facilities where public access is

restricted. As one commenter states,

‘‘The transfer of cargo into, and out of,

tank cars is primarily a shipper activity.

We are not aware of any circumstances

in which rail carriers are responsible for

loading or unloading, except in

emergency operations where the carrier

is the consignor or consignee of the tank

car.’’ (Chemical Manufacturers

Association; comments originally

submitted under Docket HM–212)

Another commenter suggests that the

current tank car unloading requirements

in the HMR are biased ‘‘toward the old,

obsolete, and inappropriate regulatory

requirements that only carriers are

responsible for unloading. In the

majority of cases, the shipper has total

control over the unloading process and

has established, safe, proven practices to

accomplish the load and unload product

transfer process.’’ (Akzo Chemicals, Inc.,

comments originally submitted under

Docket HM–212).

We agree that hazardous materials

tank car loading and unloading

operations generally are part of the

manufacturing process and, as such, are

inappropriate for regulation as

transportation functions under the

HMR. In this NPRM, we propose that

loading of a tank car by a shipper and

unloading of a tank car by a consignee

within a facility would not be subject to

the HMR. This approach is consistent

with RSPA’s current regulation of cargo

tank loading and unloading and takes

into account the changes in industry rail

tank car unloading practices since the

regulations in section 174.67 were

promulgated. Accordingly, we propose

to remove the obsolete requirements

relating to tank car unloading from

section 174.67.

While hazardous materials tank car

loading and unloading operations per se

are more appropriately regulated as

manufacturing rather than

transportation operations, FRA believes

that unique features of rail tank car

loading and unloading facilities and of

rail tank cars themselves require

continued application of certain HMR

requirements related to the protection of

train and engine crews operating within

a shipper or consignee facility. For

example, a rail tank car on a gentle

slope can move without being attached

to motive power. Rail tank cars that do

not have their brakes set or wheels

blocked have rolled out through plant

fence lines; such unrestrained

movements have fouled railroad

trackage and caused accidents.

In addition, rail carriers routinely

enter and exit loading and unloading

facilities to pick up or drop off rail cars.

Further, facilities frequently contract

with rail carriers to move rail cars

within a facility. Rail tank cars with

hoses attached may be buried within a

string of similar cars and not visible to

a train and engine crew tasked with

switching or relocating the cars. FRA

wants to assure that, at the point of

physical interface between the general

system of rail transportation and the

facility rail system, train and engine

crews do not make inappropriate

assumptions about the status of a

particular rail car or series of rail cars

and attempt to move cars that are

attached to facility storage tanks or

manufacturing processes, thereby

endangering train and engine crew

safety or adversely affecting movement

along the general system of rail

transportation.

Therefore, in this NPRM we propose

to consolidate requirements related to

the protection of train and engine crews

operating within a shipper or consignee

facility in Part 173 of the HMR.

Specifically, requirements for posting

warning signs, setting hand brakes, and

blocking the wheels of hazardous

32434 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

materials tank cars placed for unloading

with closures open would be moved

from section 174.67(a)(2) and (a)(3) and

added to section 173.31. We further

propose to require application of these

protective measures whenever a tank car

is placed for loading with a closure

open. The risk to the general system of

rail transportation and to train and

engine crews operating within a facility

is the same whether a hazardous

materials tank car is placed for either

loading or unloading with a closure

open. The HMR include a requirement

at section 174.9 for a rail carrier to

inspect at ground level hazardous

materials rail cars accepted for

transportation or placed in a train for

required markings, labels, placards,

securement of closures, and leakage.

The requirements we are proposing for

section 173.31 will serve to reinforce the

more general provision in section 174.9.

In addition to the above requirements,

hazardous materials rail tank car

loading and unloading operations,

including unloading operations

conducted by railroad employees on

railroad property of, typically, diesel

fuel for locomotives, are subject to

applicable regulations of OSHA, EPA,

and state and local governments and

Indian tribes.

Storage incidental to movement.

Storage ‘‘incidental to movement’’ of a

hazardous material is storage

undertaken by a carrier as part of the

essentially uninterrupted movement of a

hazardous material in commerce. In

general, this would not include the

directed holding of a hazardous material

by the shipper (offeror) at an en route

point until its further movement is

requested. (But see the discussion,

below, of storage of rail tank cars on

leased track.) We propose to define

‘‘storage incidental to movement’’ to

mean temporary storage of a transport

vehicle, freight container, or package

containing a hazardous material

between the time that a carrier takes

physical possession of the hazardous

material to transport it in commerce

until the package containing the

hazardous material is delivered to its

destination as indicated on shipping

documentation. As a specific alternative

concerning railroad tank cars stored on

railroad property that is the shipping

paper destination but not the ultimate

destination where the car will be

unloaded, we also propose to consider

such storage as storage incidental to

movement.

Thus, ‘‘storage incidental to

movement’’ in commerce would include

temporary storage at a carrier’s terminal

where the package containing the

hazardous material is to be transferred

from one transport vehicle to another or

from one transportation mode to

another. (Note, however, that, as

discussed above, storage of a hazardous

material at a carrier’s terminal where a

hazardous material is repackaged prior

to re-shipment is not storage incidental

to transportation as we propose to

define it in this NPRM.) Storage

incidental to movement of a hazardous

material in commerce would also

include the period during which a

transport vehicle carrying hazardous

materials is parked temporarily at an en

route point, e.g., safe haven, a rail yard,

a marine terminal, or at a truck stop,

motel, restaurant, rest area, or similar

location.

Storage incidental to movement in

commerce would include temporary

storage of a hazardous material at a

carrier’s facility after the carrier takes

possession of the package for purposes

of transporting it with reasonable

dispatch to a specifically identified

destination and prior to delivery of the

package to its consignee. We recognize,

however, that a carrier may store

hazardous materials under

circumstances in which such storage is

not incidental to movement as we

propose to define it in this NPRM. For

example, if a hazardous materials

package is consigned to a storage facility

operated by a carrier—that is, if the

shipping documentation accompanying

the shipment indicates a carrieroperated storage facility as the

destination—then, movement in

commerce ends when the shipment

arrives at the storage facility.

Subsequent storage of the hazardous

material at the storage facility is not

storage incidental to movement as

proposed in this NPRM. Again, we

propose an alternative for railroad tank

car storage at interim locations that

would consider such cars as in storage

incidental to transportation even if the

shipping paper shows the interim

location as the car’s destination.

The temporary holding of a package

containing hazardous materials at a

motor carrier terminal for consolidation

with other packages is clearly within the

meaning of storage incidental to

movement of a hazardous material in

commerce as proposed here. Further, for

through shipments, storage incidental to

movement in commerce as proposed in

this NPRM also includes the temporary

holding of a package, freight container,

rail car, or other instrument of

containment of a hazardous material at

a marine terminal pending the arrival of

a vessel onto which it will be loaded or

prior to its inland movement by rail or

highway. Similarly, the holding of a

freight container or trailer at a carrier’s

intermodal container transfer facility is

within the meaning of storage incidental

to movement of a hazardous material in

commerce as proposed here. Storage

incidental to movement of hazardous

materials in commerce is subject to

requirements in the HMR.

As proposed in this NPRM, neither

storage of a hazardous material at an

offeror facility prior to its acceptance by

a carrier nor storage of a hazardous

material at a consignee facility after it

has been delivered by a carrier would be

subject to the HMR. Offerors sometimes

store hazardous materials, except for

hazardous wastes, in authorized

packagings for weeks or even months

prior to shipment; similarly, consignees

sometimes store hazardous materials in

authorized packagings for extended

periods after delivery. In the case of a

shipper, transportation in commerce has

yet to begin because a carrier has not yet

taken physical possession of the

package; in the case of a consignee,

transportation in commerce is

completed because the carrier has

relinquished physical possession of the

package. For a hazardous material that

is consigned by an offeror to a storage

facility rather than to an end user, the

material is no longer in transportation in

commerce once it has been delivered to

the storage facility even if the storage

facility is owned or operated by the

carrier. (Under our alternative proposal,

tracks of the general railroad system at

interim locations where tank cars are

stored would not be considered such a

storage facility.) Similarly, a hazardous

material that is delivered to a transfer

facility for repackaging and is stored

temporarily pending its repackaging is

not in storage incidental to movement

and, thus, not subject to the

requirements of the HMR.

Generally, this proposed definition of

‘‘storage incidental to movement’’ of

hazardous materials in commerce is

consistent with current HMR

requirements and previous

interpretations and administrative

decisions issued by RSPA. In IR–28,

City of San Jose, California; Restrictions

on Storage of Hazardous Materials

(March 8, 1990; 55 FR 8884), we stated

that consignor and consignee storage of

hazardous materials is not incidental to

transportation in commerce. Similarly,

in an administrative determination of

preemption applicable to certain

California and Los Angeles County

requirements for handling and

transportation of hazardous materials

(February 15, 1995; 60 FR 8773), we

stated that ‘‘storage that is incidental to

transportation includes storage by a

carrier that may occur between the time

a hazardous material is offered for

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32435

transportation to a carrier and the time

it reaches its intended destination and

is accepted by the consignee * * *

[C]onsignor and consignee storage of

hazardous materials is not incidental to

transportation in commerce * * *’’

Further, ‘‘hazardous materials that are

stored at a manufacturing facility

awaiting consumption in the

manufacturing process are not stored

incidental to transportation in

commerce, and are beyond the reach of

federal hazmat law.’’ This position is

reiterated in a number of letters of

interpretation. (See, for example, an

April 4, 1992 RSPA letter to Adcom

Express Incorporated, an October 13,

1992 RSPA letter to North American

Transportation Consultants, Inc., and an

April 23, 1993 RSPA letter to the

Southeastern Association of Fire Chiefs

Incorporated.)

In the 1999 supplemental ANPRM, we

asked whether the HMR should specify

a time limit on storage incidental to

movement in commerce after which the

material would no longer be considered

to be ‘‘in transportation in commerce’’

and subject to the requirements of the

HMR. Most industry commenters

opposed a time limit. Typical of their

position is the following comment:

‘‘Any time limit is an arbitrary

assignment. An arbitrary time limit

could increase the risk of a hazardous

materials incident because it would

force extra handling of hazardous

materials * * * It is inappropriate for

RSPA (or any other agency) to prescribe

a time limit for storage incidental to

transportation as it is the reason for the

standstill and not the duration that

determines whether the storage is

incidental to transportation or not.’’

(HM–223 Working Group)

On the other hand, many state

environmental agencies strongly believe

that there should be a time limit on

storage incidental to movement of

hazardous materials in commerce. ‘‘[I]t

is reasonable to expect that the

hazardous materials transportation must

resume within a specific time frame,

from when the hazardous materials

transportation ceased [its] movement, to

remain subject to the HMR. If the

hazardous materials are not being

actively transported from one place to

another within 24 hours of

transportation ceasing, then the

materials are no longer in transportation

* * * If [the time frame is] exceeded,

then the materials are not being

transported and ‘storage incidental to

transportation’ has also ceased, and the

materials are in non-transportation

related storage. The hazardous materials

are no longer subject to the HMR * * *’’

(New Jersey Department of

Environmental Protection)

In this NPRM, we are not proposing

to limit the time that a hazardous

material shipment may remain in

storage incidental to movement of

hazardous materials in commerce. We

agree with commenters that such a time

limit could have an adverse effect on

transportation safety. To comply with a

time limit, for example, carriers might

move hazardous materials from one

storage location to another, increasing

public exposure and the risk of an

incident. Moreover, placing a time limit

on the applicability of the HMR to

storage of hazardous materials during

transportation in commerce could

subject carriers to a myriad of different

state and/or local hazardous materials

labeling, packaging, or other

requirements on packages held in

incidental storage beyond the specified

time limit and could obstruct or unduly

burden interstate commerce. As

explained later in this preamble,

however, facilities at which hazardous

materials are held in storage incidental

to movement in commerce are not

exempt from OSHA requirements

governing the safety of workers and the

facility, nor are they exempt from state

and local fire and building code

standards and similar requirements.

EPA regulations may also apply. For

example, hazardous wastes stored

incidental to movement in commerce

are subject to EPA RCRA regulations,

including time limits for shipment and

disposal.

For one aspect of rail transportation,

special clarification may be necessary.

We have said that storage of rail cars

containing hazardous materials on

leased track is storage incidental to

transportation in commerce and subject

to regulation under the HMR; in such

instances, the leased track is considered

to be carrier property, and any storage

of hazardous materials on leased track is

considered storage prior to delivery of

the hazardous materials to a consignee

(see February 14, 1994 letter from FRA

to Wheeling and Lake Erie Railway). As

we examined storage issues related to

this NPRM, we have re-evaluated our

previous interpretations concerning

storage of hazardous materials in rail

cars on leased track.

Leased track may be located directly

adjacent to a shipper or consignee

facility or within a rail carrier facility

some distance from either the shipper or

ultimate consignee. The lessee may have

exclusive use of the leased track, or the

leased track also may be used for

movement of rail cars other than those

of the shipper or consignee. In some

situations, the lease is a ‘‘rolling’’ one,

comprised of the track beneath a

particular rail car. Railroads often agree

to store cars along the route to their

ultimate destinations due to fluctuation

in seasonal demand for the commodities

and limited track space at a consignee’s

facility. Examples are liquefied

petroleum gas, often held at locations

distant from its end user pending the

demand for the product in cold weather,

and anhydrous ammonia, often held

until the agricultural cycle requires

forwarding to a consignee. In these

situations, tank cars may be consigned

to interim storage locations on leased

track. Where that is true, the cars

arguably have reached the destination

shown on the shipping papers and,

under our first alternative, would be

considered not in storage that is

incidental to transportation. However,

these interim storage locations are not

the ultimate destination of the

shipments, and the railroad maintains

effective custody and control of the

shipments, which, as proposed in this

NPRM and explained earlier in this

preamble, is the primary consideration

for determining the applicability of the

HMR to transportation functions.

Under the Federal Railroad Safety Act

(FRSA) and other rail safety laws, FRA

has treated leased track as being outside

the general rail system and, thus,

outside the scope of FRA’s rail safety

regulations only if such track is

‘‘immediately adjacent’’ to a plant

facility and the ‘‘lease provides for, and

actual practice entails, exclusive use of

that trackage by the plant railroad

***’’ 49 CFR part 209, Appendix A.

(For a discussion of FRA’s jurisdiction

over leased track, see Appendix A to

Part 209. Like RSPA, FRA has a

functional view of safety and relies

more on the activities being performed

in a particular context than on the job

title or facility name to determine if its

regulatory authority applies.) Cars on

railroad tracks in railroad yards or

sidings distant from the consignee are,

in FRA’s view, still on the general

railroad system and within the care,

custody, and control of the railroad.

Even if a shipper or consignee leases

such track, it is rarely for the exclusive

use of the shipper’s or consignee’s cars,

and, even if so restricted, the track is not

in any practical sense controlled by the

distant shipper or consignee.

Current HMR requirements, previous

interpretations, and related proposals in

this NPRM suggest two possible

approaches for addressing storage of rail

cars on leased track. First, storage on

leased track could be considered storage

by a consignee after movement in

transportation of the rail car has been

completed, as indicated by the

32436 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

destination on shipping documentation.

In such situations, the rail carrier is

acting as a storage facility on behalf of

the shipper or consignee rather than

performing transportation functions as a

carrier. Alternatively, storage of rail cars

on leased track (other than leased track

immediately adjacent to the shipper or

consignee facility and exclusively for

the shipper or consignee’s use) could be

considered storage incidental to

movement because the cars have not

been physically delivered to the

consignee, and the carrier retains

physical possession of the shipment.

Under the first alternative, which is

reflected in the proposed rule text,

storage of rail cars on leased track

would not be considered ‘‘storage

incidental to movement’’ in commerce

subject to applicable HMR requirements

as we propose to define the term in this

NPRM. In situations where rail cars

stored on leased track have been

delivered to the destination indicated

on the shipping documentation, new

shipping documentation must be

prepared before the rail cars can be

moved to the consignee location where

they will be unloaded. Under this

alternative, rail cars stored on leased

track would be subject to relevant

railroad safety rules administered by

FRA. However, because such storage

would not be subject to applicable HMR

requirements, FRA hazardous materials

inspectors could not apply rules

concerning proper shipping papers,

securement of closures, or placarding of

such cars while they were in storage.

Moreover, this alternative could present

FRA inspectors with the difficult

practical problem of determining which

railroad cars on a particular general

railroad system track or in a railroad

yard are subject to the HMR by

obtaining shipping papers and lease

information on all of the cars before

beginning an inspection. Of course, if a

shipper or consignee orders the

movement of a rail car containing

hazardous materials from a leased track

where it has been stored to a facility

where it will be unloaded, the rail car

is subject to the HMR with regard to the

performance of all pre-transportation

and transportation functions related to

its movement. This approach is

consistent with the proposals applicable

to storage incidental to movement in

other modes of transportation and

would make clear that relevant rules of

other agencies apply to cars in such

storage because it is not storage

incidental to transportation.

Under the second alternative, which

is not reflected in the proposed rule

text, rail cars stored on leased track not

immediately adjacent to a plant facility

would be considered in storage

incidental to movement and subject to

all applicable HMR requirements even if

the leased track is the destination

shown on the shipping documents. This

would ensure that any rail car subject to

the railroad safety laws would also be

subject to pertinent hazardous materials

requirements. We recognize that this

alternative is an exception to the general

principle enunciated in this NPRM that

storage of a shipment of hazardous

materials at the destination indicated on

the shipping document is not storage

incidental to transportation. However,

this alternative would be consistent

with the NPRM’s proposal that the

question of whether a given shipment is

moving in transportation in commerce

should be answered based in part on

whether the shipment is in the physical

possession of a carrier. It also would be

consistent with FRA’s regulation of

those cars under FRSA. Further, it can

be argued that the risks associated with

rail transportation of hazardous

materials exist whenever a rail car

loaded with hazardous materials is on

the general railroad system.

Generally, continuing the current

policy that rail cars stored on leased

track are stored incidental to movement

could be accomplished without

changing current regulatory language.

However, if the final rule in this

proceeding adopts this alternative for

rail tank cars but retains the general

proposal for other modes, proposed

sections 171.1(c)(4), 171.1(d)(3), and

171.8 would be amended to make clear

that such interim storage is storage

incidental to movement.

Moreover, if we continue the current

policy, then separate rulemaking may be

necessary to address related safety and

emergency response issues. For

example, we would need to consider the

continued applicability of the section

174.14 expedited movement

requirements to such incidental storage.

Further, we would need to consider

how to assure that emergency response

information relevant to the specific

hazardous materials stored in rail cars

on leased track is available as needed to

assist local officials in planning for and

responding to incidents involving such

rail cars. In addition, we may need to

consider imposing a time limit on rail

cars stored on leased tracks after which

such storage would not be considered

storage incidental to movement for

purposes of the HMR. Although we

generally oppose the imposition of time

limits for storage incidental to

movement for the reasons stated above,

for specific materials stored on leased

track a time limit on storage could

enhance federal, state, and local

government efforts to plan for

emergencies.

Commenters are invited to address the

alternatives outlined above for applying

the HMR to rail cars containing

hazardous materials that are consigned

to and stored on leased track. Should

the HMR continue to apply to rail cars

stored on leased track in a manner

consistent with FRA’s application of its

rail safety regulations, as described in

the second alternative? If so, what

would be the effect of such application

on hazardous materials shippers and

railroads? What would be the effect on

federal, state, and local government

regulation for emergency response

planning and community right-to-know

purposes? Is the 48-hour limit on

holding a shipment at any point short of

its destination reasonable? If a rail

shipment has arrived at the destination

shown on the shipping documents, or at

the nearest railroad facility, should the

railroad be permitted to store it

indefinitely? Should a time limit be

imposed on the length of time rail cars

could be stored on leased track for such

storage to be incidental to movement? If

so, should such a time limit be

commodity specific? What would be the

impact of such a time limit?

If, as described in the first alternative,

rail cars stored on leased track that is

not adjacent to the shipper’s or

consignee’s facility are not considered

to be in storage incidental to movement,

what would be the effect of such

application on hazardous materials

shippers and rail carriers? What would

be the effect on federal, state, and local

government regulations for emergency

response planning and community

right-to-know purposes? Would placing

such storage on leased track outside the

HMR present safety issues in terms of

FRA’s inability to inspect cars in such

storage and/or to investigate incidents

related to them? How would FRA

inspectors be able to readily distinguish

cars that are not subject to the HMR

from cars that are?

E. State/Local Requirements and

Preemption

One of the primary purposes of

federal hazmat law is to assure national

uniformity of regulations applicable to

the transportation of hazardous

materials in commerce. Thus, the

preemption provisions of federal hazmat

law generally preclude non-federal

governments from imposing

requirements applicable to hazardous

materials transportation if complying

with the non-federal regulation and

complying with federal hazmat law or

the HMR is not possible (dual

compliance test) or if the non-federal

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32437

requirement is an obstacle to carrying

out federal hazmat law or the HMR

(obstacle test). Further, federal hazmat

law preempts a non-federal requirement

applicable to any specified covered

subject if it is not substantively the same

as federal hazmat law or the HMR

(covered subjects test). The HMR are not

minimum requirements that other

jurisdictions may exceed if local

conditions warrant; rather, the HMR are

national standards and must be

uniformly applied across jurisdictional

lines. However, non-federal

requirements may be authorized by

another federal law. Also, RSPA may

waive preemption of a non-federal

requirement if it: (1) provides the public

with at least as much protection as

requirements of federal hazmat law and

the HMR, and (2) does not impose an

unreasonable burden on commerce. 49

U.S.C. 5125(e).

The preemption provisions of federal

hazmat law effectively preclude state,

local, and tribal governments from

regulating pre-transportation functions,

as defined in this NPRM, in a manner

that differs from the federal

requirements if the non-federal

requirement is not authorized under

another federal law and the non-federal

requirement fails the dual compliance,

obstacle, or covered subject test.

Examples of such pre-transportation

functions include: (1) Determining the

hazard class of a hazardous material; (2)

selecting a hazardous materials

packaging; (3) filling a hazardous

materials packaging; (4) securing a

closure on a filled hazardous materials

package or container or on one

containing a residue of a hazardous

material; (5) marking a package to

indicate that it contains a hazardous

material; (6) labeling a package to

indicate that it contains a hazardous

material; (7) preparing a shipping paper;

(8) providing and maintaining

emergency response information; (9)

reviewing a shipping paper to verify

compliance with the HMR or

international equivalents; (10) for

persons importing a hazardous material

in to the United States, providing the

shipper and the forwarding agent at the

place of entry into the United States

with information as to the requirements

of the HMR that apply to the shipment

of the material while in the United

States; (11) certifying that a hazardous

material is in proper condition for

transportation in conformance with the

requirements of the HMR; (12) blocking

and bracing a hazardous materials

package in a freight container or

transport vehicle; (13) segregating a

hazardous materials package in a freight

container or transport vehicle from

incompatible cargo; and (14) selecting or

providing placards for a transport

vehicle to indicate that it is carrying

hazardous materials. Note that we have

not attempted, in this NPRM, to identify

every function that is a pretransportation function—that is, a

function performed in advance of

transportation in commerce to prepare a

shipment for transportation in

commerce or that affects the safety of

the shipment in transportation in

commerce. State, local, or Indian tribe

regulation of pre-transportation

functions not specifically identified in

this NPRM may also be preempted

under federal hazmat law.

Unless the Secretary waives

preemption, the preemption provisions

of federal hazmat law effectively

preclude state, local, and tribal

governments from regulating

transportation functions, as defined in

this NPRM, in a manner that differs

from the federal requirements if the

non-federal requirement is not

authorized by another federal law and

the non-federal requirement fails the

dual compliance, obstacle, or covered

subject test. Examples of such

transportation functions include: (1)

Movements of hazardous materials in

commerce—that is, the physical transfer

of a hazardous material from one

geographic location to another by rail

car, aircraft, motor vehicle, or vessel; (2)

loading and unloading of a hazardous

material onto or from a transport

vehicle, aircraft, or vessel or into or

from a bulk packaging when performed

by carrier personnel; and (3) storage of

a hazardous material between the time

that a carrier takes possession of the

material until it is delivered to its

destination as indicated on shipping

documentation.

State, local, and tribal governments

may impose regulations on hazardous

materials-related functions that are not

covered by the HMR or federal hazmat

law, except where RSPA has specifically

determined that regulation of a

hazardous materials-related function is

not necessary. For example, hazardous

materials that are not being transported

in commerce as defined in this NPRM

could be subject to non-federal

regulations applicable to community

right-to-know, fire protection, worker

protection, building codes, and zoning

requirements. Moreover, although the

HMR apply to pre-transportation

functions as defined in this NPRM, the

facilities within which pretransportation functions are performed

could be subject to non-federal

regulations that do not affect the

performance of the pre-transportation

function—again, fire protection, worker

protection, building codes, and zoning

requirements may apply. Thus, state

and local regulations applicable to

hazardous materials stored at a

consignee’s facility or at a

manufacturing facility awaiting use in a

manufacturing process would not be

preempted (PD–9(R), 60 FR 8787).

Similarly, the HMR do not apply to

regulation of consignee storage tanks;

therefore, state or local requirements as

to the types of storage tanks into which

a hazardous material may be unloaded

from a tank car are not preempted (PD–

9(R), 60 FR 8788). Further, local fire

code requirements that do not apply to

the transportation of hazardous

materials in commerce are not

preempted (PD–14(R), 63 FR 67506).

The above discussion is intended as

general guidance only. We will continue

to make preemption determinations

applicable to specific non-federal

requirements on a case-by-case basis,

using the obstacle, dual compliance,

and covered subjects tests provided in

federal hazmat law. RSPA’s preemption

determinations are legally binding,

subject to judicial review.

F. OSHA Programs and Regulations

The OSH Act vests OSHA with

primary responsibility for promulgating

and enforcing workplace safety and

health standards. Under the OSH Act,

every employer has a general duty to

provide its employees with a workplace

free from recognized hazards that are

likely to cause death, illness, or injury.

Federal hazmat law authorizes the

Secretary of Transportation to develop

and enforce regulations for the safe

transportation of hazardous materials in

commerce. The HMR apply to persons

who transport hazardous materials in

commerce; cause the transportation of

hazardous materials in commerce; and

manufacture, repair, or test packagings

or packaging components that are

certified or sold as qualified for use in

the transportation of hazardous

materials in commerce. In addition, the

‘‘reverse 4(b)(1)’’ provision of federal

hazmat law (49 U.S.C. 5107(f)(2))

provides for shared regulatory

jurisdiction with OSHA for hazardous

materials handling, registration, motor

carrier safety permits, and hazmat

employee training requirements. As we

noted above, in exercising our authority

under federal hazmat law to regulate

hazardous materials transportation in

commerce, we must be consistent with

both the statutory purposes of federal

hazmat law and OSH Act requirements.

Requirements in the HMR applicable

to pre-transportation functions, such as

determining the hazard class of a

32438 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

material, selecting a packaging, and

preparing shipping papers, set forth the

procedures that must be followed for the

performance of specific functions. Thus,

the regulations explain how to

determine a material’s hazard class, how

to select an appropriate packaging, and

how to complete a shipping paper. One

commenter suggests that the existence

of a hazmat employee function should

determine ‘‘the scope of the agency’s

preemptive effect * * * No action of a

hazmat employee in performing a

function under the DOT hazardous

materials regulations should be affected

or influenced by the requirements of

another agency, whether federal or nonfederal.’’ (The Conference on Safe

Transportation of Hazardous Articles,

Inc.) We agree that functions under the

HMR should not also be subject to

conflicting regulation by state and local

governments and that other federal

requirements should not conflict with

the HMR. At the same time, the HMR do

not address the work environment

within which such functions are

performed nor do the HMR address the

working conditions applicable to

employees performing such functions. It

is not appropriate for RSPA to become

extensively involved in developing and

enforcing a complex regulatory scheme

covering working conditions for

hazardous materials employees who,

although performing various functions

regulated under the HMR, are located in

facilities that have characteristics

similar to those of many industrial

workplaces. If RSPA were to address all

occupational safety and health issues

that arise in facilities where regulated

functions are performed, as some

commenters have suggested, the agency

would need to develop a staff and field

capability already possessed by OSHA.

OSHA has concurrent authority in

this area and regulates to protect the

workers who perform pre-transportation

functions. Further, Congress authorized

OSHA, rather than the Secretary of

Transportation, to promulgate

regulations applicable to workplace

safety and occupational health, even in

facilities where pre-transportation

functions are performed. Such facilities

are not excepted from OSHA

requirements merely because certain of

the activities performed at the facility

are subject to HMR requirements. The

facility must assure that functions

subject to the HMR are performed in

accordance with the HMR and must also

assure that the workplace in which the

functions are performed conforms to

applicable OSHA requirements for

occupational health and safety and that

workers who perform such functions are

protected from hazards.

Where hazmat employees perform

pre-transportation functions as defined

in this NPRM, the HMR apply to the

function being performed and OSHA’s

regulations for occupational safety and

health apply to the working conditions

applicable to the hazmat employee

performing the function. Examples

include hazmat employees working in

chemical plants, manufacturing

facilities, and warehouses who

determine a material’s hazard class

under the HMR and prepare packages

for shipment. Preparation of hazardous

materials packages for shipment must be

performed in accordance with the HMR;

however, OSHA regulations apply to the

working conditions under which the

function is performed and to measures

necessary to protect the employee

performing the function.

The relationship between the OSHA

regulations and the HMR for

transportation functions is more

complex. Congress reauthorized federal

hazmat law in 1994 to ‘‘provide

adequate protection against the risks to

life and property inherent in the

transportation of hazardous material in

commerce.’’ The ‘‘risks to life inherent

in the transportation of hazardous

material’’ include risks to both the

general public and to transportation

workers, such as airline, railroad,

maritime, and motor carrier employees.

Protection of the public generally and

employees in particular is necessarily

an integrated undertaking. Thus, the

HMR include requirements aimed at

protecting both the general public and

employees of hazardous materials

carriers who perform transportation

functions.

In carrying out the mandate to

prescribe regulations for the safe

transportation of hazardous materials,

the Secretary of Transportation, through

the DOT operating administrations, has

developed a special expertise that

makes the Department uniquely

qualified to play the primary federal

regulatory role in the protection of

workers who operate motor vehicles,

trains, aircraft, and vessels used to

transport hazardous materials. Further,

the preemption provisions in federal

hazmat law provide the agency with the

statutory authority to promulgate

nationally uniform regulations, thereby

assuring that carriers are not forced to

comply with a number of different and

perhaps inconsistent regulatory

requirements applicable to the safety of

their employees who transport

hazardous materials by air, highway,

water, or rail in different state or local

jurisdictions. Thus, we believe that the

proper role for RSPA in the area of

occupational safety is to focus our

resources on carrier operations, an area

in which we have specialized

competence and for which uniform

national standards are key to safe and

efficient transportation.

FRA’s approach to assuring the

occupational safety and health of

railroad employees provides an

excellent model for assuring the

occupational safety and health of

hazmat employees. FRA regulations

issued under authority of the Federal

Railroad Safety Act of 1970 generally

address worker safety in the context of

railroad operations. Thus, the FRA

regulations cover occupational safety

and health issues that are so intimately

intertwined with the integrated rail

transportation system that they cannot

be addressed satisfactorily apart from

that system—hours of service

requirements, for example. OSHA

regulations apply to railroad worker

occupational safety and health issues

that are not addressed by FRA; these are

areas that are not intrinsic to rail

operations, but apply generally to all

industrial workplaces. For the most

part, the FRA regulations prescribe

working conditions applicable to train

and engine employees. Working

conditions applicable to rail carrier

employees who work at fixed facilities

are regulated by OSHA. (For a more

complete discussion of FRA’s policy on

occupational safety and health

regulations applicable to railroad

workers, see FRA’s policy statement,

published in the Federal Register on

March 14, 1978 (43 FR 10583), a copy

of which appears in the public docket

to this rulemaking.)

Similarly, the Coast Guard and OSHA

have a long-standing working

relationship stemming from their

separate statutory roles to prescribe and

enforce regulations affecting the safety

of those on board vessels. The

distinguishing factor as to whether

OSHA can regulate the working and

safety conditions of marine employees

on a vessel is determined by the status

of the vessel. If the vessel is subject to

inspection under sub-title II of Title 46,

U.S. Code, hereafter referred to as the

Vessel Inspection Laws of the United

States, it is ‘‘inspected’’. The Coast

Guard is the dominant federal agency

with the statutory authority to prescribe

and enforce standards or regulations

affecting the safety of those on board

vessels. Under the Vessel Inspection

Laws of the United States, the Coast

Guard has issued comprehensive

standards and regulations concerning

working conditions affecting mariners

aboard inspected vessels. Consequently,

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32439

OSHA is prohibited from regulating

conditions affecting occupational safety

and health of marine employees under

section 4(b)(1) of the OSH Act of 1970.

With respect to those vessels not subject

to the Vessel Inspection Laws of the

United States or ‘‘uninspected’’ vessels,

OSHA may regulate the working

conditions of marine employees except

in very limited instances. (For a more

complete discussion of Coast Guard’s

policy on occupational safety and health

regulations applicable to seamen aboard

inspected vessels see MEMORANDUM

OF UNDERSTANDING BETWEEN THE

UNITED STATES COAST GUARD, U.S.

DEPARTMENT OF

TRANSPORTATION, AND THE

OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR,

CONCERNING THEIR AUTHORITY TO

PRESCRIBE AND ENFORCE

STANDARDS OR REGULATIONS

AFFECTING THE OCCUPATIONAL

SAFETY AND HEALTH OF SEAMEN

ABOARD VESSELS INSPECTED AND

CERTIFICATED BY THE UNITED

STATES COAST GUARD dated March

8, 1983, a copy of which appears in the

public docket to this rulemaking.)

Our current approach for dividing the

responsibility for the occupational

safety and health of hazmat employees

between OSHA and RSPA is similar.

Where the functions performed by

hazmat employees are intrinsic to the

operations of carriers that transport

hazardous materials in commerce, the

Secretary of Transportation exercises

regulatory authority under federal

hazmat law for occupational safety and

health issues related to those hazmat

employees. Examples include airplane

pilots and crews; truck drivers, codrivers, and other motor carrier

employees who load or unload motor

vehicles; locomotive engineers and train

crews; and marine employees. These

hazmat employees perform

transportation functions as defined in

this NPRM. Thus, when the driver of a

cargo tank motor vehicle loads the

vehicle at a fixed facility immediately

prior to movement in commerce of the

vehicle or unloads the vehicle at a fixed

facility immediately after movement in

commerce is completed, the loading and

unloading functions are regulated under

the HMR, including requirements

applicable to the health and safety of the

worker performing the function.

We believe that the current

application of the HMR and OSHA

regulations to hazmat employees is

consistent with the underlying goals of

both federal hazmat law and the OSH

Act, Congress’s recognition of the need

for uniformity in hazardous materials

transportation in commerce, and the

‘‘reverse 4(b)(1)’’ provision of federal

hazmat law. Consequently, we are

proposing no changes in this division of

responsibilities.

G. EPA Programs and Regulations

The concurrent applicability of EPA’s

regulations and the HMR to loading,

unloading, and storage of hazardous

materials has caused significant

confusion. The clarifications we are

proposing in this NPRM concern the

applicability of the HMR to specific

functions and activities. Entities

involved with handling and

transporting hazardous materials should

be aware that a number of EPA

requirements may also apply to their

operations. Following are descriptions

of some EPA programs that apply to

facilities that handle and store

hazardous materials.

EPCRA (SARA Title II). The

Emergency Planning and Community

Right-to-Know Act, enacted by Congress

in 1986 as Title III of the Superfund

Amendments and Reauthorization Act

(SARA; 42 U.S.C. 11011 et seq.) requires

states to establish state and local

emergency planning groups to develop

chemical emergency response plans for

each community. EPCRA also requires

facilities to provide information

regarding the hazardous materials they

have on site to states, local planners, fire

departments and, through them, the

public. In addition, EPCRA requires

notification of releases of certain

hazardous substances. This information

forms the foundation of both the

community emergency response plans

and the public-industry dialogue on

risks and risk reduction. EPCRA

emphasizes prevention, preparedness,

and response as key factors in reducing

the hazards associated with chemical

releases.

Pursuant to EPCRA requirements,

EPA has issued a list of extremely

hazardous substances and threshold

planning quantities for each substance.

A facility is subject to a one-time

emergency planning notification if a

substance on the list is present at the

facility in an amount in excess of the

threshold planning quantity established

for the substance. 42 U.S.C. 11002(b)(1).

Among other requirements, facilities

where hazardous chemicals, as defined

by OSHA, are present must prepare and

submit an emergency and hazardous

chemical inventory form to the

appropriate local emergency planning

committee (LEPC), state emergency

response commission (SERC), and fire

department with jurisdiction over the

facility. 42 U.S.C. 11022(a)(1). EPCRA

also specifically requires the owner or

operator of a facility to promptly

provide to an LEPC, on request,

information that the LEPC believes is

necessary for developing and

implementing an emergency plan. 42

U.S.C. 11003(d)(3). Thus, certain

hazardous materials that are on site at

a facility, in above-threshold quantities,

awaiting consumption in the

manufacturing process, are regulated

under EPCRA.

Except for the release reporting

requirements under EPCRA 304, EPCRA

does not apply to the transportation in

commerce, including storage incident to

that transportation, of any substance or

chemical subject to EPCRA. 42 U.S.C.

11047. In its regulations implementing

EPCRA, EPA states that a substance is

stored ‘‘incident to transportation’’ in

commerce if the stored substance is

moving under active shipping papers

and has not reached the ultimate

consignee. 40 CFR 355.40(b)(4)(ii).

Consequently, hazardous materials that

are stored incident to transportation in

commerce, as defined by EPA, are not

subject to the requirements of EPCRA.

On the other hand, regulated materials

that have been delivered to the ultimate

consignee’s facility are not stored

‘‘incident to transportation’’ in

commerce and are subject to EPCRA

requirements.

Although its terminology differs,

EPA’s definition of ‘‘storage incident to

transportation’’ in commerce for

purposes of EPCRA is generally the

same as the definition we propose in

this NPRM for ‘‘storage incidental to

movement’’ of a hazardous material in

commerce. For both definitions, a

hazardous materials package, freight

container, or transport vehicle is stored

incidental to movement in commerce if

it is en route to, but has not yet reached,

its consignee. For these situations, most

of the EPCRA requirements do not

apply. Similarly, EPA agrees with the

proposed definition in this NPRM that

regulated materials that have been

delivered to their consignee are not in

transportation in commerce and, thus,

are subject to EPCRA requirements.

Based on the proposals in this NPRM,

hazardous materials in the following

non-transportation situations could be

subject to EPCRA requirements:

(1) Hazardous materials stored at an

offeror’s facility prior to a carrier taking

possession of the hazardous material for

movement in transportation in

commerce.

(2) Hazardous materials being

unloading from a transport vehicle or

bulk packaging by a person employed

by or under contract to the consignee

following delivery, including unloading

into a manufacturing process.

32440 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

(3) Hazardous materials stored at a

consignee facility after delivery,

including hazardous materials stored on

track leased from a rail carrier by the

consignee.

Clean Air Act, Section 112(r) (Risk

Management Program). Although

EPCRA governs emergency response

planning, it does not mandate that

facilities establish accident prevention

programs. The CAA Amendments of

1990, Pub. L. 101–549, 104 Stat. 2399,

amended section 112 of the Clean Air

Act, 42 U.S.C. 7412, by adding, among

other things, a new subsection (r),

which includes requirements related to

chemical accident prevention. The goal

of section 112(r) is to prevent accidental

releases of extremely hazardous

substances from ‘‘stationary sources’’

and to minimize the consequences of

any accidental releases that do occur.

Section 112(r) establishes a general

duty for facility owners or operators of

stationary sources to identify hazards

that may result from accidental releases,

design and maintain a safe facility, and

minimize the consequences of releases

when they occur. Pursuant to section

112(r)(3), EPA has promulgated a list of

substances that, in the event of an

accidental release, are known to cause

or may be reasonably expected to cause

death, injury, or serious adverse effects

to human health and the environment.

EPA also has established a threshold

quantity for each listed chemical.

Stationary sources that have more than

a threshold quantity of a regulated

substance are subject to the accident

prevention regulations promulgated by

EPA under CAA section 112(r),

including the requirement to develop

risk management plans.

EPA in its regulations defines

‘‘stationary source’’ as follows:

Stationary source means any buildings,

structures, equipment, installations, or

substance emitting stationary activities

which belong to the same industrial group,

which are located on one or more contiguous

properties, which are under the control of the

same person (or persons under common

control), and from which an accidental

release may occur. The term stationary

source does not apply to transportation,

including storage incident to transportation,

of any regulated substance or any other

extremely hazardous substance under the

provisions of this part. A stationary source

includes transportation containers used for

storage not incident to transportation and

transportation containers connected to

equipment at a stationary source for loading

or unloading * * *

40 CFR 68.3. (Emphasis added).

In 1999, EPA clarified its definition of

stationary source by stating,

Because a transportation container may at

times function as a storage container or a

process at a stationary source, or may

function as part of operations at a stationary

source, EPA is specifically directed by statute

to address these activities (CAA section

112(r)(7)(B)(i)) (‘‘The regulations shall cover

storage, as well as operations’’). To the extent

that DOT is also authorized under Federal

Hazmat Law to regulate activities that are at

a stationary source, nothing in the CAA

prohibits both agencies from exercising

concurrent jurisdiction over these activities.

As EPA has said in the context of the RMP

Rule, compliance with Federal Hazmat Law

and HMR requirements may satisfy parallel

requirements of part 68. This approach to

implementation reflects the coordination

between the agencies that is called for under

CAA section 112(r)(7)(D). The exercise of

concurrent jurisdiction preserves the

applicability of the Federal Hazmat Law and

HMR and does not supersede or limit DOT’s

jurisdiction.

(64 FR 28696, at 28698; May 26, 1999).

The proposals in this NPRM would

make clear that, from DOT’s

perspective, the following situations are

neither transportation in commerce nor

storage incidental to transportation in

commerce:

(1) Hazardous materials stored at an

offeror’s facility prior to a carrier taking

possession of the hazardous material for

movement in transportation in

commerce.

(2) Hazardous materials being

unloaded from a transport vehicle or

bulk packaging by a person employed

by or under contract to the consignee

following delivery, including unloading

into a manufacturing process.

(3) Hazardous materials stored at a

consignee facility after delivery,

including hazardous materials stored on

track leased from a rail carrier by the

consignee.

(4) Hazardous materials stored at a

carrier facility where shipping papers

indicate the carrier facility as the

shipment destination.

(5) Hazardous materials temporarily

stored at an intermodal carrier facility

for repackaging.

Resource Conservation and Recovery

Act (RCRA). RCRA requires EPA to issue

regulations to ensure the proper

management of hazardous waste from

its point of generation to its ultimate

disposal—‘‘cradle to grave.’’ The

regulations establish a step-by-step

approach to monitor and control

hazardous wastes at every point in the

waste cycle. The regulated community

in this system includes those who

generate, recycle, transport, treat, store,

and dispose of hazardous wastes.

EPA and DOT have joint

responsibility for regulating the

transportation of hazardous wastes, and

the two agencies’ regulations in this area

are inter-related. EPA has incorporated

DOT’s pre-transportation requirements

into its regulations—i.e., generators that

send hazardous wastes off-site for

treatment or disposal must comply with

all applicable requirements in the HMR,

including those for packaging, marking,

and labeling. In addition, generators are

required to prepare a uniform hazardous

waste manifest to accompany any

hazardous waste transported off-site.

DOT has incorporated this requirement

into its regulations.

Hazardous waste transporters are

subject to both the HMR and the EPA

regulations governing hazardous waste

transportation, storage, and disposal. In

the event of a release during

transportation, transporters must

comply with EPA requirements for

hazardous waste spill cleanup.

Hazardous wastes stored incidental to

movement in commerce as that term is

proposed to be defined in this NPRM—

that is, between the time that a carrier

takes possession of the hazardous waste

until the hazardous waste is delivered to

the destination indicated on the

hazardous waste manifest—must be

stored in accordance with EPA

requirements for hazardous waste

storage, including time limits on such

storage. Similarly, in the event that a

carrier discovers a leaking hazardous

materials package and the offeror directs

the carrier to dispose of the material, the

carrier is subject to all applicable EPA

and DOT requirements for transporting,

storing, and disposing of the material.

Spill Prevention, Control, and

Countermeasure (SPCC) Program. The

Clean Water Act (33 U.S.C. 1251 et seq.)

establishes authority for the Spill

Prevention, Control, and

Countermeasure (SPCC) program for

non-transportation-related facilities. The

SPCC regulations are designed to

prevent the discharge of oil from nontransportation-related onshore and

offshore facilities into or onto the

navigable waters of the United States or

adjoining shorelines. A 1971

Memorandum of Understanding (MOU)

between EPA and DOT establishes

definitions of transportation-related and

non-transportation-related facilities for

purposes of the FWPCA. Under the

MOU, SPCC regulations apply to the

following non-transportation-related

facilities: (1) Oil storage facilities,

including all related equipment and

appurtenances and bulk plant storage;

(2) terminal oil storage; (3) pumps and

drainage systems used in the storage of

oil, except for in-line or breakout tanks

needed for the continuous operation of

a pipeline system; and (4) any terminal

facility, unit, or process integrally

associated with the transfer of oil in

bulk to or from a vessel. Loading racks,

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32441

transfer hoses, loading arms, and other

equipment that is appurtenant to a nontransportation-related facility or

terminal and that is used to transfer oil

in bulk to or from highway vehicles or

rail cars are also subject to regulation

under the SPCC program. The SPCC

regulations include several

requirements for facility rail tank car

and cargo tank motor vehicle loading

and unloading racks, such as a

secondary containment system and

lights or barriers to prevent the vehicle

from departing the facility prior to

disconnecting transfer lines.

V. Section-by-Section Review

General

In Section 171.8, we propose to define

a new term, ‘‘movement,’’ to mean ‘‘the

physical transfer of a hazardous material

from one geographic location to another

by rail car, aircraft, motor vehicle, or

vessel.’’ Accordingly, we propose to

replace the term ‘‘movement’’ when it

appears in the HMR in a context where

the proposed definition would be

inappropriate. These changes are

proposed for Sections 173.3(c)(2);

173.6(b)(1) and (b)(3); 173.24a(a)(3);

173.62(c) in the table under Packing

Instruction 131 each time it appears;

173.166(e)(4)(iii); 173.171 (d);

173.181(a)(2); 173.185(e)(7), (g)(1), and

(g)(2); 173.189(b) and (d)(4)(i);

173.219(b)(3); 173.308(a)(4); 173.335(c);

173.416(f); 174.110; 174.112(b) and

(c)(3); 174.115(a) and (b)(3); 175.81(a);

176.69(d); 176.76(a)(2) each time it

appears; 176.78(f)(8); 176.93(a)(1);

176.116(d); 176.132(c); 176.168(g);

176.200(b) and (c) each time it appears;

177.834(a); 177.840(b)(3); 177.870(e);

178.601(g)(1)(i)(D), (g)(1)(ii), and

(g)(4)(v); and 178.704(d)(3).

Part 171

Section 171.1. In this NPRM, we

propose to retitle this section

‘‘Applicability of HMR to persons and

functions.’’ We further propose to add

introductory text to this section to

explain the authority provided to the

Secretary of Transportation under

federal hazmat law to establish

regulations for the safe transportation of

hazardous materials in commerce, the

Secretary’s delegation of this authority

to RSPA, and the applicability of this

section to packagings represented as

qualified for use in the transportation of

hazardous materials in commerce and to

pre-transportation and transportation

functions.

In paragraph (a) of this section, we

propose to specify that the HMR apply

to each person who manufactures,

fabricates, marks, maintains,

reconditions, repairs, or tests a

packaging or a component of a

packaging that is represented, marked,

certified, or sold as qualified for use in

the transportation of hazardous

materials in commerce, including each

person who performs these activities

under contract to an agency or branch

of the federal government. Proposed

paragraph (a) restates requirements in

current paragraphs (a)(3) and (b) of

Section 171.1.

Proposed paragraph (b) of this section

specifies that the HMR apply to pretransportation functions performed by

persons who offer hazardous materials

for transportation in commerce or cause

hazardous materials to be transported in

commerce, including persons who

perform pre-transportation functions

under contract to an agency or branch

of the federal government. Proposed

paragraph (b) includes a non-exhaustive

list of pre-transportation functions to

which the HMR apply.

Proposed paragraph (c) of this section

states that the HMR apply to

transportation of hazardous materials in

commerce and to persons who transport

hazardous materials in commerce,

including persons who transport

hazardous materials in commerce under

contract to an agency or branch of the

federal government. Proposed paragraph

(c) also defines the points at which

transportation in commerce begins and

ends and lists transportation functions

included in ‘‘transportation in

commerce’’—movement of a hazardous

material in commerce, loading

incidental to movement of a hazardous

material in commerce, unloading

incidental to movement of a hazardous

material in commerce, and storage

incidental to movement of a hazardous

material in commerce.

Proposed paragraph (d) of this NPRM

lists specific functions that are not

subject to the HMR.

Proposed paragraph (e) states that

facilities at which functions are

performed in accordance with the HMR

may also be subject to applicable

standards and regulations of other

federal agencies.

Proposed paragraph (f) states that

facilities at which functions are

performed in accordance with the HMR

may also be subject to applicable laws

and regulations of state and local

governments, except to the extent that

such laws and regulations are

preempted by federal hazmat law.

Proposed paragraph (f) also sets forth

the criteria established in federal

hazmat law for making preemption

determinations.

Proposed paragraph (g) restates the

penalties for noncompliance with the

HMR that are currently in paragraph (c)

of Section 171.1. The maximum

criminal fines under Title 18 of the

United States Code are $250,000 for an

individual and $500,000 for a

corporation.

Section 171.2. We propose to revise

this section to clarify those persons and

activities that are subject to the

requirements of the HMR. Generally, we

propose to revise this section to state

more clearly the current requirements

and prohibitions.

Proposed paragraph (a) states that a

person who performs a function that is

required by the HMR must perform the

function in accordance with the HMR.

Proposed paragraph (b) requires a

person who offers hazardous materials

for transportation in commerce to

comply with the HMR or with an

exemption, approval, or registration

issued in accordance with the HMR.

Proposed paragraph (c) requires each

person who performs a function covered

by or having an effect on the packaging

specifications in parts 178, 179, or 180

of the HMR or an exemption or approval

to perform the function in accordance

with the specification, exemption, or

approval.

Proposed paragraph (d) prohibits any

person subject to the registration

requirements in subpart G of Part 107

from offering or accepting a hazardous

material for transportation in commerce

or from transporting a hazardous

material in commerce unless that person

is registered.

Proposed paragraph (e) prohibits any

person from offering or accepting a

hazardous material for transportation in

commerce unless the hazardous

material is prepared for shipment as

required by the HMR or an applicable

exemption, approval, or registration.

Proposed paragraph (f) prohibits any

person from transporting a hazardous

material in commerce except in

conformance with the HMR or an

applicable exemption, approval, or

registration.

Proposed paragraph (g) restates

requirements in current paragraph (c) of

Section 171.2. Proposed paragraph (g)

prohibits any person from representing,

marking, certifying, selling, or offering a

packaging as meeting the requirements

of the HMR unless the packaging is

manufactured, fabricated, marked,

maintained, reconditioned, repaired,

and retested in accordance with the

applicable HMR requirements. Proposed

paragraph (g) applies the same

prohibition to any person who performs

these functions under the terms of an

exemption, approval, or registration.

This paragraph also would require a

packaging marked as meeting a DOT

32442 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

specification or UN standard to conform

to the specification or standard at all

times that the marking is visible. The

requirements of proposed paragraph (g),

like the current requirements in Section

171.2(a), would apply whether or not

the packaging is used for the

transportation in commerce of a

hazardous material.

Proposed paragraph (h) restates the

requirements in current paragraph (d) of

Section 171.2. This paragraph lists the

representations, markings, and

certifications subject to the prohibitions

of proposed paragraph (g) of this

section.

Proposed paragraph (i) prohibits any

person from certifying that a hazardous

material is offered for transportation in

commerce in accordance with the HMR

unless the hazardous material has been

prepared for shipment as required or

authorized by the HMR or an

exemption, approval, or registration.

This proposed paragraph requires

persons who offer a hazardous materials

package for transportation under the

HMR to assure that the package remains

in condition for shipment until it is in

the possession of the transporting

carrier.

Proposed paragraph (j) prohibits any

person from marking or representing

that a package for transporting a

hazardous material in commerce is safe,

certified, or in compliance with the

HMR unless it meets all applicable

regulatory requirements issued under

federal hazmat law. This proposed

paragraph restates a prohibition in

current paragraph (f)(1) of Section 171.2.

Proposed paragraph (k) prohibits any

person from marking or representing

that a hazardous material is present in

a package or transportation conveyance

if the hazardous material is not, in fact,

present. This proposed paragraph

restates a prohibition in current

paragraph (f)(2) of Section 171.2.

Proposed paragraph (l) prohibits any

person from unlawfully tampering with

any marking, label, placard, or

description on a document that is

required by federal hazmat law or a

regulation issued under federal hazmat

law. This proposed paragraph also

prohibits any person from unlawfully

tampering with a package or

transportation conveyance used to

transport hazardous materials. This

proposed paragraph restates a

prohibition in current paragraphs (g)(1)

and (g)(2) of Section 171.2.

Proposed paragraph (m) prohibits any

person from falsifying or altering an

exemption, approval, registration, or

other grant of authority relevant to the

transportation of hazardous materials

issued by RSPA. This proposed

paragraph further prohibits any person

from offering a hazardous material for

transportation under an exemption,

approval, registration, or other grant of

authority that has been altered without

the consent of RSPA. Finally, this

proposed paragraph prohibits any

person from representing, marking,

certifying, or selling a packaging under

an exemption, approval, registration, or

other grant of authority that has been

altered without the consent of RSPA.

Section 171.8. We propose to add or

revise definitions for the following

terms: Administrator, Associate

Administrator, carrier, commerce,

consignee, hazmat, HMR, loading

incidental to movement, movement,

offer a hazardous material, person, pretransportation function, Secretary,

sheathing, storage incidental to

movement, transportation or transport,

transportation facility, and unloading

incidental to movement.

Part 173

Section 173.1. We propose to remove

paragraph (c) and redesignate current

paragraph (d) as paragraph (c). Current

paragraph (c) is redundant with the

proposed revisions to Sections 171.1

and 171.2.

Section 173.10. We propose to remove

this section. It contains outdated and

obsolete requirements.

Section 173.30. We propose to remove

this section because it conflicts with the

new definitions of ‘‘loading incidental

to movement’’ and ‘‘unloading

incidental to movement’’ proposed in

Sections 171.1 and 171.8

Section 173.31. We propose to add

new paragraph (g) to consolidate

requirements related to the protection of

train and engine crews during rail tank

car loading and unloading operations.

Part 174

We propose to delete Section 174.67.

Consignee unloading of tank cars is not

unloading incidental to movement as

that term is defined in this NPRM for

purposes of HMR applicability; thus,

tank car unloading would not be subject

to requirements in the HMR.

VI. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This proposed rule is considered a

significant regulatory action under

Executive Order 12866 and the

Regulatory Policies and Procedures of

the Department of Transportation (44 FR

11034) because of significant public

interest. A preliminary regulatory

evaluation is available for review in the

public docket for this rulemaking.

For the most part, the proposals in

this NPRM maintain the status quo for

applicability of the HMR and, thus,

neither increase nor decrease the costs

of compliance with the HMR for persons

who offer hazardous materials for

transportation or transport hazardous

materials in commerce. The only change

from the status quo concerning rail tank

car unloading operations and storage of

rail tank cars on leased track. This

NPRM proposes to exclude consignee

unloading of rail cars and rail car

storage on leased track from regulation

under the HMR, thereby reducing the

costs of compliance with the HMR for

rail tank car unloading facilities and

consignees that store hazardous

materials in rail cars on leased track. In

addition, this NPRM proposes to expand

application of current requirements for

placing warning signs, setting brakes,

and blocking wheels during rail tank car

unloading operations to loading

operations, as well. FRA believes that

rail facilities currently utilize these

protective measures as part of their

standard safe operating procedures and,

thus, should incur minimal increased

costs as a result of this proposal.

We invite all commenters to address

the issues discussed in the preliminary

regulatory evaluation. In particular, we

invite comments on our general

conclusion that the proposals in this

NPRM (other than cost reductions

pertaining to the unloading and storage

of tank cars) maintain the status quo for

applicability of the HMR and, thus,

neither increase nor decrease the costs

of compliance with the HMR for persons

who offer hazardous materials for

transportation or transport hazardous

materials in commerce. Do you agree

that these proposals generally represent

a restatement of the current status quo

for applicability of the HMR? If not, how

would these proposals change your

current business practices? Which

requirements in the proposal represent

potential increases or decreases in the

cost of compliance with the HMR? For

persons required to comply with the

HMR, can you quantify any increased

costs? For emergency responders,

members of local emergency planning

committees, and other interested

persons, what benefits would result if

the proposals in this NPRM are

implemented? Can you quantify any

benefits that may result?

B. Executive Order 13132

This proposed rule has been analyzed

in accordance with the principles and

criteria contained in Executive Order

13132 (‘‘Federalism’’). This proposed

rule would preempt state law and

would have substantial direct effects on

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32443

the states, the relationship between the

national government and the states, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, the

consultation requirements of Executive

Order 13132 apply.

The Federal hazardous materials

transportation law, 49 U.S.C. 5101–

5127, contains an express preemption

provision (49 U.S.C. 5125(b)) that

preempts State, local, and Indian tribe

requirements on certain covered

subjects. Covered subjects are:

(1) The designation, description, and

classification of hazardous materials;

(2) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous materials;

(3) The preparation, execution, and

use of shipping documents related to

hazardous materials and requirements

related to the number, contents, and

placement of those documents;

(4) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material; or

(5) The design, manufacture,

fabrication, marking, maintenance,

recondition, repair, or testing of a

packaging or container represented,

marked, certified, or sold as qualified

for use in transporting hazardous

material.

This proposed rule addresses covered

subject item(s) 1–5 above and would

preempt state, local, and Indian tribe

requirements not meeting the

‘‘substantively the same’’ standard. This

proposed rule is necessary because there

appears to be confusion in the regulated

community and among federal, state,

and local agencies with hazardous

materials safety responsibilities

concerning whether and to what extent

the HMR apply to particular operations

and activities related to the

transportation of hazardous materials in

commerce. The most obvious area of

confusion was identified in the 1996

and 1999 ANPRMs issued for this

docket—which loading, unloading, and

storage activities are incidental to the

movement of hazardous materials in

commerce and therefore subject to the

HMR. In addition, there is uncertainty

concerning the extent to which other

federal, state, and local agencies may

regulate hazardous materials safety,

particularly at fixed facilities where the

lines between pre-transportation,

transportation, and non-transportation

operations are not clearly articulated.

Federal hazardous materials

transportation law provides at Section

5125(b)(2) that, if DOT issues a

regulation concerning any of the

covered subjects, DOT must determine

and publish in the Federal Register the

effective date of federal preemption. The

effective date may not be earlier than

the 90th day following the date of

issuance of the final rule and not later

than two years after the date of issuance.

We propose that the effective date of

federal preemption will be 90 days from

publication of a final rule in this matter

in the Federal Register.

As required under Executive Order

13132, we consulted with state and

local officials early in the process of

developing a proposed regulation in this

matter. Through letters dated November

2, 1999, we invited the following

organizations to participate in a meeting

to discuss the HM–223 rulemaking:

National Governors’ Association;

Council of State Governments; National

Conference of State Legislatures; U.S.

Conference of Mayors; the National

Association of Counties; the National

Association of Towns and Townships;

and the National League of Cities. We

met with representatives of the National

Governors’ Association, the Council of

State Governments, and the National

Conference of State Legislatures on

January 20, 2000. During the meeting,

we provided a brief summary of the

status of the rulemaking. In addition, we

explained the preemption provisions of

federal hazmat law and how this

rulemaking could affect state and local

government programs governing

hazardous materials safety. The state

and local government representatives

asked several questions about time

frames and procedures for the

rulemaking and expressed general

support for the rulemaking goals as

expressed in the two ANPRMs. The

state and local government

representatives did not comment on the

issues and options discussed in the two

ANPRMs and expressed a preference to

wait to submit comments until we

publish a specific proposal in an NPRM.

We encouraged the state and local

representatives to submit written

comments in advance of publication of

the NPRM to assure that the rulemaking

addresses their concerns. After the

meeting, we sent letters to all of the

invited organizations, summarizing the

meeting and again encouraging them to

submit written comments to the HM–

223 docket in advance of publication of

the NPRM. None chose to do so.

RSPA made all written

communications submitted in this

proceeding by state and local officials

available to the Director of the Office of

Information and Regulatory Affairs,

Office of Management and Budget.

C. Executive Order 13175

This 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, does not

impose substantial direct compliance

costs, and is required by statute, the

funding and consultation requirements

of Executive Order 13175 do not apply.

Nevertheless, through a letter dated

November 2, 1999, we invited the

National Congress of American Indians

(NCAI) to participate in a meeting to

discuss this rulemaking. The NCAI did

not attend the meeting, which occurred

on January 20, 2000. After the meeting,

we sent a letter to the NCAI,

summarizing the meeting and

encouraging the organization to submit

written comments to the docket in

advance of publication of this NPRM.

The NCAI chose not to do so.

D. 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 impact on a

substantial number of small entities.

Based on the assessment in the

preliminary regulatory evaluation, I

hereby certify that the proposed rule

would not have a significant economic

impact on a substantial number of small

businesses.

Need for the proposed rule. There is

confusion in the regulated community

and among government agencies with

hazardous materials safety

responsibilities concerning whether and

to what extent the HMR apply to

particular operations and activities

related to the transportation of

hazardous materials in commerce. This

NPRM proposes to clarify specific

functions to which the HMR apply.

Providing a definitive line for

determining the applicability of the

HMR will reduce confusion on the part

of the regulated public concerning

where the transportation requirements

apply and should have the beneficial

effect of clarifying EPA and OSHA

requirements for hazardous materials at

fixed facilities. This should result in

improved compliance with the separate

regulatory requirements of DOT, EPA,

and OSHA and, thus, enhance

hazardous materials transportation

safety, reduce risks to the environment

from hazardous materials, and promote

workplace safety at facilities that

32444 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

manufacture or handle hazardous

materials.

Identification of potentially affected

small entities. For the most part, the

selected alternative maintains the status

quo in terms of applicability of the

HMR, thus imposing no new

compliance costs on the regulated

industry. For rail tank car unloading

facilities, the selected alternative

reduces the costs of compliance with

the HMR by eliminating the current

requirement that rail tank car

consignees comply with the unloading

requirements in section 174.67.

Unless alternative definitions have

been established by the agency in

consultation with the Small Business

Administration (SBA), the definition of

‘‘small business’’ has the same meaning

as under the Small Business Act.

Therefore, since no such special

definition has been established, RSPA

employs the thresholds published by

SBA for industries subject to the HMR.

(A complete listing of industries and

their SBA thresholds is included as

Appendix A to the Preliminary

Regulatory Evaluation that has been

placed in the public docket for this

rulemaking.) Based on data for 1997

compiled by the U.S. Census Bureau, it

appears that upwards of 95 percent of

these firms are small businesses. These

entities will incur no new costs to

comply with the HMR if the proposals

in this NPRM are implemented.

The Federal Railroad Administration

estimates that there are 2,500 rail tank

car loading and unloading facilities

operated by manufacturers of chemicals

and allied products. Since no special

definition has been established, we

employ the threshold of 500–1,000

employees published by SBA for

manufacturers of chemicals and allied

products (NAICS Subsector 325). Based

on data for 1997 compiled by the U.S.

Census Bureau, it appears that 93

percent of these firms are small

businesses. The proposals in this NPRM

will minimally increase the costs of

complying with HMR requirements

related to preventing access to rail tank

cars during loading operations and will

reduce the cost of complying with the

HMR unloading requirements.

Related federal rules and regulations.

OSHA issues regulations related to safe

handling, including containment and

transfer operations, of 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 handling

and storage of specific hazardous

materials, such as compressed gases,

flammable and combustible liquids,

explosives and blasting agents, liquefied

petroleum gases, and anhydrous

ammonia. OSHA regulations also

address hazard communication

requirements at fixed facilities,

including container labeling and other

forms of warning, material safety data

sheets, and employee training.

EPA issues regulations, codified at 40

CFR part 68, designed to prevent

accidental releases into the environment

of hazardous materials at fixed facilities.

These regulations include requirements

for risk management plans that must

include a hazard assessment, a program

for preventing accidental releases, and

an emergency response program to

mitigate the consequences of accidental

releases. In addition, EPA regulations

applicable to hazardous materials

handling at fixed facilities address

community right-to-know requirements;

hazardous waste generation,

transportation, storage, disposal, and

treatment; and requirements to prevent

the discharge of oil into or onto the

navigable waters of the United States or

adjoining shorelines.

Conclusion. We have determined that

this NPRM will impose no new costs for

compliance with the HMR. The NPRM

will reduce the costs to comply with the

HMR for companies that operate rail

tank car loading and unloading

facilities.

E. Paperwork Reduction Act

This NPRM does not impose any new

information collection requirements.

F. Regulation Identifier Number (RIN)

A regulation identifier number (RIN)

is assigned to each regulatory action

listed in the Unified Agenda of Federal

Regulations. The Regulatory Information

Service Center publishes the Unified

Agenda in April and October of each

year. The RIN containing in the heading

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

Agenda.

G. Unfunded Mandates Reform Act

This NPRM imposes no mandates and

thus does not impose unfunded

mandates under the Unfunded

Mandates Reform Act of 1995.

H. Environmental Assessment

We find that there are no significant

environmental impacts associated with

this proposed rule. An environmental

assessment has been placed in the

public docket for this rulemaking.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials

transportation, Hazardous waste,

Imports, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation,

Packaging and containers, Radioactive

materials, Reporting and recordkeeping

requirements.

49 CFR Part 174

Hazardous materials transportation,

Radioactive materials, Railroad safety.

49 CFR Part 175

Air carriers, Hazardous materials

transportation, Radioactive materials,

Reporting and recordkeeping

requirements.

49 CFR Part 176

Hazardous materials transportation,

Maritime carriers, Radioactive materials,

Reporting and recordkeeping

requirements.

49 CFR Part 177

Hazardous materials transportation,

Motor carriers, Radioactive materials,

Reporting and recordkeeping

requirements.

49 CFR Part 178

Hazardous materials transportation,

Motor vehicle safety, Packaging and

containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, we

propose to amend 49 CFR Parts 171,

173, 174, 175, 176, 177, and 178 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; 49 CFR

1.53.

2. Sections 171.1 is revised to read as

follows:

§ 171.1 Applicability of Hazardous Material

Regulations (HMR) to persons and

functions.

Federal hazardous material

transportation law (49 U.S.C. 5101 et

seq.) directs the Secretary of

Transportation to establish regulations

for the safe transportation of hazardous

materials in commerce. The Secretary is

authorized to apply these regulations to

persons who transport hazardous

materials in commerce. In addition, the

law authorizes the Secretary to apply

these regulations to persons who

perform pre-transportation functions

that relate to assuring the safe

transportation of hazardous materials in

commerce, specifically persons who

offer for transportation or otherwise

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32445

cause hazardous materials to be

transported in commerce. The law also

authorizes the Secretary to apply these

regulations to persons who manufacture

or maintain packagings or components

of packagings that are represented,

marked, certified, or sold as qualified

for use in the transportation of a

hazardous material in commerce.

Federal hazardous material

transportation law also applies to:

anyone who indicates by marking or

other means that a hazardous material is

present in a package or transport

conveyance when it is not, and to

anyone who tampers with a package or

transport conveyance used to transport

hazardous materials or a required

marking, label, placard, or shipping

description. In 49 CFR 1.53, the

Secretary delegated authority to issue

regulations to the Research and Special

Programs Administrator. The Hazardous

Materials Regulations (HMR; 49 CFR

Parts 171 through 180) are issued by the

Administrator under that delegated

authority. This section addresses the

applicability of the HMR to packagings

represented as qualified for use in the

transportation of hazardous materials in

commerce and to pre-transportation and

transportation functions.

(a) Packagings. Requirements in the

HMR apply to each person who

manufactures, fabricates, marks,

maintains, reconditions, repairs, or tests

a packaging or a component of a

packaging that is represented, marked,

certified, or sold as qualified for use in

the transportation of a hazardous

material in commerce, including each

person under contract with any

department, agency, or instrumentality

of the executive, legislative, or judicial

branch of the federal government who

manufactures, fabricates, marks,

maintains, reconditions, repairs, or tests

a packaging or a component of a

packaging that is represented, marked,

certified, or sold as qualified for use in

the transportation of a hazardous

material in commerce.

(b) Pre-transportation functions.

Requirements in the HMR apply to pretransportation functions performed by

each person who offers a hazardous

material for transportation in commerce

or causes a hazardous material to be

transported in commerce, including

each person performing pretransportation functions under contract

with any department, agency, or

instrumentality of the executive,

legislative, or judicial branch of the

federal government. Pre-transportation

functions include the following:

(1) Determining the hazard class of a

hazardous material.

(2) Selecting a hazardous materials

packaging.

(3) Filling a hazardous materials

packaging.

(4) Securing a closure on a filled

hazardous materials package or

container or on a package or container

containing a residue of a hazardous

material.

(5) Marking a package to indicate that

it contains a hazardous material.

(6) Labeling a package to indicate that

it contains a hazardous material.

(7) Preparing a shipping paper.

(8) Providing and maintaining

emergency response information.

(9) Reviewing a shipping paper to

verify compliance with the HMR or

international equivalents.

(10) For each person importing a

hazardous material into the United

States, providing the shipper and the

forwarding agent at the place of entry

into the United States with timely and

complete information as to the HMR

requirements that will apply to the

transportation of the material within the

United States.

(11) Certifying that a hazardous

material is in proper condition for

transportation in conformance with the

requirements of the HMR.

(12) Blocking and bracing a hazardous

materials package in a freight container

or transport vehicle.

(13) Segregating a hazardous materials

package in a freight container or

transport vehicle from incompatible

cargo.

(14) Selecting, providing, or affixing

placards for a transport vehicle to

indicate that it contains a hazardous

material.

(c) Transportation functions.

Requirements in the HMR apply to

transportation of a hazardous material

in commerce and to each person who

transports a hazardous material in

commerce, including each person under

contract with any department, agency,

or instrumentality of the executive,

legislative, or judicial branch of the

federal government who transports a

hazardous material in commerce.

Transportation in commerce begins

when a carrier takes possession of a

hazardous material for the purpose of

transporting it and continues until the

package containing the hazardous

material arrives at the destination

indicated on a shipping document,

package marking, or other medium. For

a private motor carrier, transportation in

commerce begins when a motor vehicle

driver takes possession of a hazardous

material for the purpose of transporting

it and continues until the driver

relinquishes possession of the package

containing the hazardous material at its

destination and is no longer responsible

for performing functions subject to the

HMR. Transportation in commerce

includes the following:

(1) Movement. Movement of a

hazardous material by rail car, aircraft,

motor vehicle, or vessel (except as

delegated at section 1.46(t) of this title).

(2) Loading incidental to movement of

a hazardous material. Loading of

packaged or containerized hazardous

material onto a transport vehicle,

aircraft, or vessel or loading of a

hazardous material into a bulk

packaging for the purpose of

transporting it, when performed by a

person employed by or under contract

to a for-hire carrier or, in the case of a

private motor carrier, when performed

by the driver of the motor vehicle into

which the hazardous material is being

loaded immediately prior to movement

of the hazardous material (except as

delegated at section 1.46(t) of this title).

(3) Unloading incidental to movement

of a hazardous material. Unloading of a

packaged or containerized hazardous

material from a transport vehicle,

aircraft, or vessel or unloading of a

hazardous material from a bulk

packaging when performed by a person

employed by or under contract to a forhire carrier or, in the case of a private

motor carrier, when performed by the

driver of the motor vehicle from which

the hazardous material is being

unloaded immediately after movement

is completed (except as delegated at

§ 1.46(t) of this title).

(4) Storage incidental to movement of

a hazardous material. Storage of a

transport vehicle, freight container, or

package containing a hazardous material

between the time that a carrier takes

physical possession of the hazardous

material for the purpose of transporting

it until the package containing the

hazardous material is delivered to the

destination indicated on a shipping

document, package marking, or other

medium, or, in the case of a private

motor carrier, between the time that a

motor vehicle driver takes physical

possession of the hazardous material for

the purpose of transporting it until the

driver relinquishes possession of the

package containing the hazardous

material at its destination and is no

longer responsible for performing

functions subject to the HMR.

(d) Functions not subject to the

requirements of the HMR. Requirements

of the HMR do not apply to the

following:

(1) Storage of a freight container,

transport vehicle, or package containing

a hazardous material at an offeror

facility prior to a carrier taking

possession of the hazardous material for

32446 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

movement in transportation in

commerce or, for a private motor carrier,

prior to a motor vehicle driver taking

physical possession of the hazardous

material for movement in transportation

in commerce.

(2) Unloading of a hazardous material

from a transport vehicle or a bulk

packaging performed by a person

employed by or working under contract

to the consignee or, in the case of a

private motor carrier, following delivery

of the hazardous material by the carrier

to its destination, unloading by a person

other than the driver of the motor

vehicle from which the hazardous

material is being unloaded.

(3) Storage of a freight container,

transport vehicle, or package containing

a hazardous material after its delivery

by a carrier to the destination indicated

on a shipping document, package

marking, or other medium.

(4) Rail and motor vehicle movements

of a hazardous material within a

contiguous facility boundary, other than

at a transportation facility, where public

access is restricted, except to the extent

that the movement is on or crosses a

public road or on track that is part of the

general railroad system of

transportation.

(5) Transportation of a hazardous

material in a motor vehicle, aircraft, or

vessel operated by a federal, state, or

local government employee solely for

noncommercial federal, state, or local

government purposes.

(6) Transportation of a hazardous

material by an individual for noncommercial purposes in a private motor

vehicle, including a leased or rented

motor vehicle.

(7) Any matter subject to the postal

laws and regulations of the United

States.

(e) Requirements of other federal

agencies. Each facility at which

functions are performed in accordance

with the HMR may be subject to

applicable standards and regulations of

other federal agencies.

(f) Requirements of state and local

government agencies. Each facility at

which functions are performed in

accordance with the HMR may be

subject to applicable laws and

regulations of state and local

governments and Indian tribes, except

to the extent that such laws and

regulations are preempted under 49

U.S.C. section 5125. Under section

5125, a non-federal law or regulation

may be preempted, unless otherwise

authorized by another federal statute,

if—

(1) Complying with both the nonfederal law or regulation and a

requirement of federal hazardous

materials transportation law or the HMR

is not possible;

(2) The non-federal law or regulation

as applied or enforced is an obstacle to

accomplishing and carrying out federal

hazardous material transportation law

or the HMR; or

(3) The non-federal law or regulation

is not substantively the same as a

provision of federal hazardous materials

transportation law or the HMR with

respect to—

(i) The designation, description, and

classification of hazardous material;

(ii) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous material;

(iii) The preparation, execution, and

use of shipping documents related to

hazardous material and requirements

related to the number, contents, and

placement of these documents;

(iv) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material; or

(v) The design, manufacturing,

fabrication, marking, maintenance,

reconditioning, repairing, or testing of a

package or container represented,

marked, certified, or sold as qualified

for use in transporting hazardous

material.

(g) Penalties for noncompliance. Each

person who knowingly violates a

requirement of federal hazardous

material transportation law, an order

issued under federal hazardous material

transportation law, subchapter A of this

chapter, or an exemption or approval

issued under subchapter A or C of this

chapter is liable for a civil penalty of not

more than $27,500 and not less than

$250 for each violation. When a

violation is a continuing one and

involves transporting of hazardous

materials or causing them to be

transported or shipped, each day of the

violation constitutes a separate offense.

Each person who knowingly violates a

requirement in § 171.2(l) of this

subchapter or willfully violates a

provision of federal hazardous material

transportation law or an order issued

under federal hazardous material

transportation law may be fined under

Title 18, United States Code, or

imprisoned for not more than 5 years, or

both.

3. Section 171.2 is revised to read as

follows:

§ 171.2 General requirements.

(a) Each person who performs a

function covered by this subchapter

must perform that function in

accordance with this subchapter.

(b) Each person who offers a

hazardous material for transportation in

commerce must comply with all

applicable requirements of this

subchapter or an exemption, approval,

or registration issued under this

subchapter or subchapter A of this

chapter.

(c) Each person who performs a

function covered by or having an effect

on a specification prescribed in part

178, 179, or 180 of this subchapter, an

approval issued under the HMR, or an

exemption issued under subchapter A of

this chapter, must perform the function

in accordance with that specification,

approval, or exemption, as appropriate.

(d) No person may offer or accept a

hazardous material for transportation in

commerce or transport a hazardous

material in commerce unless that person

is registered in conformance with

subpart G of part 107 of this chapter, if

applicable.

(e) No person may offer or accept a

hazardous material for transportation in

commerce unless the hazardous

material is properly classed, described,

packaged, marked, labeled, and in

condition for shipment as required or

authorized by applicable requirements

of this subchapter or an exemption,

approval, or registration issued under

this subchapter or subchapter A of this

chapter.

(f) No person may transport a

hazardous material in commerce unless

the hazardous material is transported in

accordance with applicable

requirements of this subchapter or an

exemption, approval, or registration

issued under this subchapter or

subchapter A of this chapter.

(g) No person may represent, mark,

certify, sell, or offer a packaging or

container as meeting the requirements

of this subchapter governing its use in

the transportation of a hazardous

material in commerce unless the

packaging or container is manufactured,

fabricated, marked, maintained,

reconditioned, repaired, and retested in

accordance with the applicable

requirements of this subchapter. No

person may represent, mark, certify,

sell, or offer a packaging or container as

meeting the requirements of an

exemption, approval, or registration

issued under this subchapter or

subchapter A of this chapter unless the

packaging or container is manufactured,

fabricated, marked, maintained,

reconditioned, repaired, and retested in

accordance with the applicable

requirements of the exemption,

approval, or registration issued under

this subchapter or subchapter A of this

chapter. Except as provided in section

178.2 of this subchapter, a packaging or

container marked as meeting a DOT

specification or UN standard must

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32447

conform to the specification or standard

at all times that the marking is visible.

The requirements of this paragraph

apply whether or not the packaging or

container is used or to be used for the

transportation of a hazardous material.

(h) The representations, markings,

and certifications subject to the

prohibitions of paragraph (g) of this

section include—

(1) Specification identifications that

include the letters ‘‘ICC’’, ‘‘DOT’’,

‘‘CTC’’, ‘‘MC’’, or ‘‘UN’’;

(2) Exemption, approval, and

registration numbers that include the

letters ‘‘DOT’’, ‘‘EX’’, ‘‘M’’, or ‘‘R’’; and

(3) Test dates associated with

specification, registration, approval,

retest, or exemption markings indicating

compliance with a test or retest

requirement of the HMR, or an

exemption, approval, or registration

issued under the HMR or under

subchapter A of this chapter.

(i) No person may certify that a

hazardous material is offered for

transportation in commerce in

accordance with the requirements of

this subchapter unless the hazardous

material is properly classed, described,

packaged, marked, labeled, and in

condition for shipment as required or

authorized by applicable requirements

of this subchapter or an exemption,

approval, or registration issued under

this subchapter or subchapter A of this

chapter. Each person who offers a

package containing a hazardous material

for transportation in commerce in

accordance with the requirements of

this subchapter, to include the signing

of the shipper’s certification, or an

exemption, approval, or registration

issued under this subchapter or

subchapter A of this chapter, must

assure that the package remains in

condition for shipment until it is in the

possession of the carrier.

(j) No person may, by marking or

otherwise, represent that a container or

package for transportation of a

hazardous material is safe, certified, or

in compliance with the requirements of

this chapter unless it meets the

requirements of all applicable

regulations issued under federal

hazardous material transportation law.

(k) No person may, by marking or

otherwise, represent that a hazardous

material is present in a package,

container, motor vehicle, rail car,

aircraft, or vessel if the hazardous

material is not present.

(l) No person may alter, remove,

deface, destroy, or otherwise unlawfully

tamper with any marking, label, placard,

or description on a document required

by federal hazardous material

transportation law or the regulations

issued under federal hazardous material

transportation law. No person may alter,

deface, destroy, or otherwise unlawfully

tamper with a package, container, motor

vehicle, rail car, aircraft, or vessel used

for the transportation of hazardous

materials.

(m) No person may falsify or alter an

exemption, approval, registration, or

other grant of authority issued under

this subchapter or subchapter A of this

chapter. No person may offer a

hazardous material for transportation or

transport a hazardous material in

commerce under an exemption,

approval, registration or other grant of

authority issued under this subchapter

or subchapter A of this chapter if such

grant of authority has been altered

without the consent of the issuing

authority. No person may represent,

mark, certify, or sell a packaging or

container under an exemption,

approval, registration or other grant of

authority issued under this subchapter

or subchapter A of this chapter if such

grant of authority has been altered

without the consent of the issuing

authority.

4. In section 171.8, definitions for

‘‘carrier,’’ ‘‘person,’’ and ‘‘sheathing’’ are

revised, and definitions for

‘‘Administrator,’’ ‘‘Associate

Administrator,’’ ‘‘commerce’’,

‘‘consignee,’’ ‘‘hazmat,’’ ‘‘HMR,’’

‘‘loading incidental to movement,’’

‘‘movement,’’ ‘‘offer a hazardous

material,’’ ‘‘pre-transportation

function,’’ ‘‘Secretary,’’ ‘‘storage

incidental to movement,’’

‘‘transportation or transport,’’

‘‘transportation facility,’’ and

‘‘unloading incidental to movement’’ are

added in alphabetical order, to read as

follows:

§ 171.8 Definitions and abbreviations.

* * * * *

Administrator means the

Administrator, Research and Special

Programs Administration.

* * * * *

Associate Administrator means the

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration.

* * * * *

Carrier means a person who

transports passengers or property in

commerce by rail car, aircraft, motor

vehicle, or vessel.

* * * * *

Commerce means trade or

transportation in the jurisdiction of the

United States between a place in a state

and a place outside of the state; or that

affects trade or transportation between a

place in a state and place outside of the

state.

* * * * *

Consignee means the person or place

shown on a shipping document,

package marking, or other media as the

location to which a carrier is directed to

transport a hazardous material.

* * * * *

Hazmat means a hazardous material.

* * * * *

HMR means the Hazardous Materials

Regulations, Parts 171 through 180 of

this chapter.

* * * * *

Loading incidental to movement

means loading of packaged or

containerized hazardous material onto a

transport vehicle, aircraft, or vessel or

loading of a hazardous material into a

bulk packaging for the purpose of

transporting it, when performed by a

person employed by or under contract

to a for-hire carrier or, in the case of a

private motor carrier, when performed

by the driver of the motor vehicle into

which the hazardous material is being

loaded immediately prior to movement

of the hazardous material in commerce.

* * * * *

Movement means the physical transfer

of a hazardous material from one

geographic location to another by rail

car, aircraft, motor vehicle, or vessel.

* * * * *

Offer a hazardous material means

perform, attempt to perform, or is

required to perform a pre-transportation

function under the HMR.

* * * * *

Person means an individual,

corporation, company, association, firm,

partnership, society, joint stock

company; or a government, Indian tribe,

or authority of a government or tribe

offering a hazardous material for

transportation in commerce or

transporting a hazardous material to

support a commercial enterprise. This

term does not include the United States

Postal Service or, for purposes of 49

U.S.C. 5123 and 5124, a Department,

agency, or instrumentality of the

government.

* * * * *

Pre-transportation function means

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, including—

(1) Determining the hazard class of a

hazardous material.

(2) Selecting a hazardous materials

packaging.

32448 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules

(3) Filling a hazardous materials

packaging.

(4) Securing a closure on a filled

hazardous materials package or

container or on a package or container

containing a residue of a hazardous

material.

(5) Marking a package to indicate that

it contains a hazardous material.

(6) Labeling a package to indicate that

it contains a hazardous material.

(7) Preparing a shipping paper.

(8) Providing and maintaining

emergency response information.

(9) Reviewing a shipping paper to

verify compliance with the HMR or

international equivalents.

(10) Certifying that a hazardous

material is in proper condition for

transportation in conformance with the

requirements of the HMR.

(11) Blocking and bracing a hazardous

materials package in a freight container

or transport vehicle.

(12) Segregating a hazardous materials

package in a freight container or

transport vehicle from incompatible

cargo.

(13) Selecting, providing, or affixing

placards for a transport vehicle to

indicate that it contains a hazardous

material.

* * * * *

Secretary means the Secretary of

Transportation.

* * * * *

Sheathing means a covering

consisting of non-sparking, non-metallic

material used as a lining over metal, and

secured to prevent any motion, to

reduce sparking or damage to inner

packagings.

* * * * *

Storage incidental to movement

means storage of a transport vehicle,

freight container, or package containing

a hazardous material between the time

that a carrier takes physical possession

of the hazardous material for the

purpose of transporting it until the

package containing the hazardous

material is physically delivered to the

destination indicated on a shipping

document, package marking, or other

medium, or, in the case of a private

motor carrier, between the time that a

motor vehicle driver takes physical

possession of the hazardous material for

the purpose of transporting it until the

driver relinquishes possession of the

hazardous material at its intended

destination and is no longer responsible

for performing functions subject to the

HMR.

* * * * *

Transportation or transport means the

movement of property and loading,

unloading, or storage incidental to the

movement.

Transportation facility means an

airport, rail yard or terminal, marine

terminal, truck terminal, or intermodal

terminal. This term also includes a

warehouse or storage location where

hazardous materials are stored

incidental to transportation.

* * * * *

Unloading incidental to movement

means unloading of a packaged or

containerized hazardous material from a

transport vehicle, aircraft, or vessel or

unloading of a hazardous material from

a bulk packaging when performed by a

person employed by or under contract

to a for-hire carrier or, in the case of a

private motor carrier, when performed

by the driver of the motor vehicle from

which the hazardous material is being

unloaded immediately after movement

in commerce is completed.

* * * * *

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

AND PACKAGINGS

5. The authority citation for Part 173

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.45 and 1.53.

§ 173.1 [Amended]

6. In § 173.1, paragraph (c) is removed

and paragraph (d) is redesignated as

new paragraph (c).

§ 173.10 [Removed and Reserved]

7. Section 173.10 is removed and

reserved.

§ 173.30 [Removed and Reserved]

8. Section 173.30 is removed and

reserved.

9. Section 173.31 is amended by

adding new paragraph (g) to read as

follows:

§ 173.31 Use of tank cars.

* * * * *

(g) Tank car loading and unloading.

When placed for loading or unloading

and before unsecuring any closure, a

tank car must be protected against

movement or coupling as follows:

(1) Caution signs must be placed

between the rails to give necessary

warning to persons approaching the

car(s) from the open end of a siding and

must be left up until after all closures

are secured and the cars are in proper

condition for transportation. The signs

must be of a durable material, blue in

color, rectangular in shape, at least

30.48 cm (12 inches) high by 38.10 cm

(15 inches) wide, and bear the word

‘‘STOP.’’ The word ‘‘STOP’’ must

appear in white letters at least 10.16 cm

(4 inches) high. Additional words, such

as ‘‘Tank Car Connected’’ or ‘‘Crew at

Work,’’ may also appear in white letters

under the word ‘‘STOP.’’

(2) At least one wheel on the tank car

must be blocked against movement in

both directions, and the hand brakes

must be set. If multiple tank cars are

coupled together, sufficient hand brakes

must be set and wheels blocked to

prevent movement in both directions.

§§ 173.3, 173.6, 173.24a, 173.62, 173.166,

173.171, 173.181, 173.185, 173.189, 173.219,

173.308, 173.335 and 173.416 [Amended]

10. In addition to the amendments set

forth above, in Part 173 the word

‘‘movement’’ is revised to read

‘‘shifting’’ in the following places:

a. Section 173.3(c)(2);

b. Section 173.6(b)(1) and (b)(3);

c. Section 173.24a(a)(3);

d. Section 173.166(e)(4)(iii);

f. Section 173.171(d);

g. Section 173.181(a)(2);

h. Section 173.189(b) and (d)(4)(i);

i. Section 173.335(c); and

j. Section 173.416(f).

11. In addition to the amendments set

forth above, in Part 173 the words

‘‘freedom of movement’’ are revised to

read ‘‘free moving’’ in § 173.62(c) in the

table under Packing Instruction 131

each time they appear.

12. In addition to the amendments set

forth above, in Part 173 the word

‘‘movement’’ is revised to read

‘‘moving’’ in the following places:

a. Section 173.185(e)(7), (g)(1), and

(g)(2);

b. Section 173.219(b)(3); and

c. Section 173.308(a)(4).

PART 174—CARRIAGE BY RAIL

13. The authority citation for Part 174

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 174.67 [Removed and Reserved]

14. Section 174.67 is removed and

reserved.

§§ 174.110, 174.112, and 174.115

[Amended]

15. In addition to the amendments set

forth above, in Part 174 the word

‘‘movement’’ is revised to read

‘‘shifting’’ in the following places:

a. Section 174.110;

b. Section 174.112(b) and (c)(3) each

time it appears; and

c. Section 174.115(a) and (b)(3) each

time it appears.

PART 175—CARRIAGE BY AIRCRAFT

16. The authority citation for Part 175

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules 32449

§ 175.81 [Amended]

17. In § 175.81(a), the word

‘‘movement’’ is revised to read

‘‘shifting’’.

PART 176—CARRIAGE BY VESSEL

18. The authority citation for Part 176

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§§ 176.69, 176.76, 176.78, 176.93, 176.116,

176.132, 176.168, and 176.200 [Amended]

19. In Part 176, the word ‘‘movement’’

is revised to read ‘‘shifting’’ in the

following places:

a. Section 176.69(d);

b. Section 176.76(a)(2) each time it

appears;

c. Section 176.116(d);

e. Section 176.132(c); and

f. Section 176.200(b) and (c) each time

it appears.

20. In Part 176, the word ‘‘movement’’

is revised to read ‘‘motion’’ in

§ 176.93(a)(1).

21. In Part 176, the word ‘‘movement’’

is revised to read ‘‘moving’’ in the

following places:

a. Section 176.78(f)(8); and

b. Section 176.168(g).

PART 177—CARRIAGE BY PUBLIC

HIGHWAY

22. The authority citation for Part 177

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§§ 177.834, 177.840, and 177.870

[Amended]

23. In Part 177, the word ‘‘movement’’

is revised to read ‘‘shifting’’ in the

following places:

a. Section 177.834(a);

b. Section 177.840(b)(3); and

c. Section 177.870(e).

PART 178—SPECIFICATIONS FOR

PACKAGINGS

24. The authority citation for Part 178

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§§ 178.601, 178.704 [Amended]

25. In Part 178, the word ‘‘movement’’

is revised to read ‘‘moving’’ in

§ 178.601(g)(1)(i)(D), (g)(1)(ii), and

(g)(4)(v).

26. In Part 178, the word ‘‘movement’’

is revised to read ‘‘motion’’ in

§ 178.704(d)(3).

Issued in Washington, DC, on June 1, 2001

under authority delegated in 49 CFR part

106.

Robert A. McGuire,

Associate Administrator for Hazardous

Materials Safety, Research and Special

Programs Administration.

[FR Doc. 01–14385 Filed 6–13–01; 8:45 am]

BILLING CODE 4910–60–P