[Federal Register Volume 68, Number 210 (Thursday, October 30, 2003)]
[Rules and Regulations]
[Pages 61906-61942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27057]



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Part III





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 171, 173, 174, et al.



Applicability of the Hazardous Materials Regulations to Loading, 
Unloading, and Storage; Final Rule

  Federal Register / Vol. 68, No. 210 / Thursday, October 30, 2003 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 173, 174, 175, 176, 177, and 178

[Docket No. RSPA-98-4952 (HM-223)]
RIN 2137-AC68


Applicability of the Hazardous Materials Regulations to Loading, 
Unloading, and Storage

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: RSPA is clarifying the applicability of the Hazardous 
Materials Regulations (HMR) to specific functions and activities, 
including hazardous materials loading and unloading operations and 
storage of hazardous materials during transportation. We are also 
listing in the HMR pre-transportation functions to which the HMR apply. 
Pre-transportation functions are functions performed to prepare 
hazardous materials for transportation in commerce by persons who offer 
a hazardous material for transportation or cause a hazardous material 
to be transported. Transportation functions are functions performed as 
part of the actual movement of hazardous materials in commerce, 
including loading, unloading, and storage of hazardous materials that 
is incidental to that movement. For purposes of applicability of the 
HMR, ``transportation in commerce'' begins when a carrier takes 
possession of a hazardous material and continues until the carrier 
delivers the package containing the hazardous material to its 
destination as indicated on shipping papers or other shipping 
documentation.

DATES: This final rule is effective October 1, 2004.

FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of 
Hazardous Materials Standards, Research and Special Programs 
Administration; or Donna O'Berry (202) 366-4400, Office of the Chief 
Counsel, Research and Special Programs Administration.

SUPPLEMENTARY INFORMATION: 

List of Topics

I. Background
II. Summary of Final Rule
III. Analysis of Comments
    A. Packaging Specifications
    B. Pre-Transportation Functions
    C. Transportation that is ``in Commerce''
    D. Transportation Functions Subject to the HMR
    E. State/Local Requirements and Preemption
    F. OSHA, EPA, and ATF Programs and Regulations
IV. Revisions to Sec.  174.67
V. Section-by-Section Review
VI. Regulatory Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act
    E. Paperwork Reduction Act
    F. Regulation Identifier Number (RIN)
    G. Unfunded Mandates Reform Act
    H. Environmental Assessment
    I. Privacy Act Statement

I. Background

     Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) are 
promulgated under the mandate in section 5103(b) of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq., as amended by section 1711 of the Homeland Security Act of 2002, 
Pub. L. 107-296) that the Secretary of Transportation ``prescribe 
regulations for the safe transportation, including security, of 
hazardous material in intrastate, interstate, and foreign commerce.'' 
Section 5103(b)(1)(B) provides that the HMR ``shall govern safety 
aspects, including security, of the transportation of hazardous 
material the Secretary considers appropriate.''
    ``Transportation'' is defined as ``the movement of property and 
loading, unloading, or storage incidental to the movement.'' 49 U.S.C. 
5102(12). ``Commerce'' is defined as ``trade or transportation in the 
jurisdiction of the United States between a place in a State and a 
place outside of the State; or that affects trade or transportation 
between a place in a State and a place outside of the State.'' 49 
U.S.C. 5102(1). Neither the statute nor the HMR define the terms 
``loading incidental to movement,'' ``unloading incidental to 
movement,'' or ``storage incidental to movement.'' The legislative 
history of the statute does not clarify this matter.
    On June 14, 2001, the Research and Special Programs Administration 
(RSPA, we) issued a notice of proposed rulemaking (NPRM; 66 FR 32420) 
proposing to clarify the applicability of the HMR to specific functions 
and activities, including hazardous materials loading and unloading 
operations and storage of hazardous materials during transportation. 
The proposals in the NPRM were based on previously issued 
administrative determinations as to the applicability of the HMR, 
including informal letters of interpretation, formal interpretations 
published in the Federal Register, inconsistency rulings, and 
preemption determinations. In the NPRM, we proposed to key the 
definition of ``transportation in commerce'' to a carrier's possession 
of a hazardous materials shipment. As we stated in the NPRM, we believe 
this approach is most consistent with the intent of Federal hazmat law 
and with other Federal statutes governing the regulation of hazardous 
materials at fixed facilities.
    As we explained in the NPRM, using this approach, the HMR would 
continue to apply, as they do now, to certain activities performed by 
offerors to prepare a hazardous material for transportation. We 
proposed a new term to describe these activities--``pre-transportation 
functions.'' These are functions that affect the safe movement of 
hazardous materials during transportation. ``Transportation in 
commerce'' would begin when a carrier takes physical possession of a 
hazardous materials package or shipment for purposes of transporting it 
and would continue until delivery of the package to its consignee or 
destination as evidenced by the shipping documentation under which the 
hazardous material is moving, such as shipping papers, bills of lading, 
freight orders, or similar documentation. The HMR would apply to all 
carrier activities after the carrier takes possession of the hazardous 
material from an offeror for purposes of transporting it until the 
package is delivered to its destination, including loading and 
unloading activities conducted by carrier personnel. We proposed that, 
for purposes of the HMR, such activities would be considered loading or 
unloading ``incidental to movement.'' In addition, the HMR would apply 
to storage of a hazardous materials package by any party between the 
time that a carrier takes possession of the hazardous material for 
purposes of transporting it until the package is delivered to its 
intended destination, as evidenced by the shipping documentation under 
which the package is moving. Except for rail cars stored on leased 
track, we proposed that such storage would be considered storage 
``incidental to movement.'' We proposed and requested comment on two 
alternatives for applying the HMR to rail cars stored on leased track 
in certain circumstances.
    In addition, the NPRM described the statutory authorities and 
associated regulatory programs of the Department of Labor's 
Occupational Safety and Health Administration (OSHA) and the 
Environmental Protection Agency (EPA) and explained their applicability 
to

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operations at fixed facilities involving hazardous materials. The NPRM 
indicated that facilities at which functions regulated by the HMR occur 
might also be subject to applicable OSHA and/or EPA regulations. 
Finally, the NPRM discussed the preemption provisions of Federal hazmat 
law and indicated that facilities at which functions regulated by the 
HMR occur may also be subject to laws and regulations of state, local, 
or tribal governments.

II. Summary of Final Rule

    This final rule amends the HMR to incorporate the following new 
definitions and provisions:
    [sbull] We are defining a new term--``pre-transportation 
function''--to mean a function performed by any person that is required 
to assure the safe transportation of a hazardous material in commerce. 
When performed by shipper personnel, loading of packaged or 
containerized hazardous material onto a transport vehicle, aircraft, or 
vessel and filling a bulk packaging with hazardous material in the 
absence of a carrier for the purpose of transporting it is a pre-
transportation function as that term is defined in this final rule. 
Pre-transportation functions must be performed in accordance with 
requirements in the HMR.
    [sbull] We are defining ``transportation'' to mean the movement of 
property and loading, unloading, or storage incidental to the movement. 
This definition is consistent with the definition of ``transportation'' 
in Federal hazmat law. Transportation in commerce begins when a carrier 
takes physical possession of a hazardous material for the purpose of 
transporting it and continues until delivery of the package to its 
consignee or destination as evidenced by the shipping documentation 
under which the hazardous material is moving, such as shipping papers, 
bills of lading, freight orders, or similar documentation.
    [sbull] We are defining ``movement'' to mean the physical transfer 
of a hazardous material from one geographic location to another by rail 
car, aircraft, motor vehicle, or vessel.
    [sbull] We are defining ``loading incidental to movement'' to mean 
the loading by carrier personnel or in the presence of carrier 
personnel of packaged or containerized hazardous material onto a 
transport vehicle, aircraft, or vessel for the purpose of transporting 
it. For a bulk packaging, ``loading incidental to movement'' means the 
filling of the packaging with a hazardous material by carrier personnel 
or in the presence of carrier personnel for the purpose of transporting 
it. Loading incidental to movement is regulated under the HMR. Note, 
however, that, as discussed elsewhere in this preamble, OSHA shares 
jurisdiction for certain aspects of the loading operation.
    [sbull] We are defining ``unloading incidental to movement'' to 
mean the removal of a packaged or containerized hazardous material from 
a transport vehicle, aircraft, or vessel or the emptying of a hazardous 
material from a bulk packaging after a hazardous material has been 
delivered to a consignee and prior to the delivering carrier's 
departure from the consignee facility or premises. Unloading incidental 
to movement is subject to regulation under the HMR. Note, however, 
that, as discussed elsewhere in this preamble, OSHA shares jurisdiction 
for certain aspects of the unloading operation. Unloading by a 
consignee after the delivering carrier has departed the facility is not 
unloading incidental to movement and not regulated under the HMR.
    [sbull] We are defining ``storage incidental to movement'' to mean 
storage by any person of a transport vehicle, freight container, or 
package containing a hazardous material between the time that a carrier 
takes physical possession of the hazardous material for the purpose of 
transporting it until the package containing the hazardous material is 
physically delivered to the destination indicated on a shipping 
document. However, in the case of railroad shipments, even if a 
shipment has been delivered to the destination shown on the shipping 
document, if the track is under the control of a railroad carrier or 
track is used for purposes other than moving cars shipped to or from 
the lessee, storage on the track is storage incidental to movement. We 
have revised the definition of ``private track or private siding'' to 
make this clear. Storage at a shipper facility prior to a carrier 
exercising control over or taking possession of the hazardous material 
or storage at a consignee facility after a carrier has delivered the 
hazardous material is not storage incidental to movement and is not 
regulated under the HMR.
    [sbull] We are amending Sec.  171.1 of the HMR to list regulated 
and non-regulated functions. Regulated functions include: (1) 
Activities related to the design, manufacture, and qualification of 
packaging represented as qualified for use in the transportation of 
hazardous materials; (2) pre-transportation functions; and (3) 
transportation functions (movement of a hazardous material and loading, 
unloading, and storage incidental to the movement). Non-regulated 
functions include: (1) Rail and motor vehicle movements of a hazardous 
material solely within a contiguous facility where public access is 
restricted; (2) transportation of a hazardous material in a transport 
vehicle or conveyance operated by a Federal, state, or local government 
employee solely for government purposes; (3) transportation of a 
hazardous material by an individual for non-commercial purposes in a 
private motor vehicle; and (4) any matter subject to U.S. postal laws 
and regulations.
    [sbull] We are amending Sec.  171.1 of the HMR to indicate that 
facilities at which functions are performed in accordance with the HMR 
may be subject to applicable standards and regulations of other Federal 
agencies or to applicable state or local government laws and 
regulations (except to the extent that such non-Federal requirements 
may be preempted under Federal hazmat law). Federal hazmat law does not 
preempt other Federal statutes nor does it preempt regulations issued 
by other Federal agencies to implement statutorily authorized programs. 
This final rule is intended to clarify the applicability of the HMR to 
specific functions and activities. It is not appropriate for DOT to 
attempt to clarify the applicability of other Federal agencies' 
statutes or regulations to particular functions or activities. However, 
it is important to note that facilities at which pre-transportation or 
transportation functions are performed must comply with OSHA and state 
or local regulations applicable to physical structures--for example, 
noise and air quality control standards, emergency preparedness, fire 
codes, and local zoning requirements. Facilities may also have to 
comply with applicable state and local regulations for hazardous 
materials handling and storage operations. Facilities at which pre-
transportation or transportation functions are performed may also be 
subject to EPA and other OSHA regulations. For example, facilities may 
be subject to EPA's risk management; community right-to-know; hazardous 
waste tracking and disposal; and spill prevention, control and 
countermeasure requirements, and OSHA's process safety management and 
emergency preparedness requirements. Similarly, facilities at which 
pre-transportation functions are performed may also be subject to 
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(ATF) concerning the handling of explosives. Questions as to the 
applicability of EPA, OSHA, or ATF regulations to particular facilities 
or

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operations should be directed to the appropriate EPA, OSHA, or ATF 
office.
    The provisions of this final rule are explained in more detail in 
the following preamble discussion.

III. Analysis of Comments

    We received more than 120 comments on the NPRM. Commenters included 
representatives of individual shippers and carriers, industry trade 
associations, state and local governments, and the National 
Transportation Safety Board (NTSB). Most commenters express support for 
the goals of this rulemaking, but oppose many of the specific proposals 
in the NPRM. Generally, industry commenters express concern that the 
NPRM appears to contradict one of the major goals of Federal hazmat 
law--establishment of uniform national regulations for the safe 
transportation in commerce of hazardous materials. On the other hand, 
commenters representing state and local governments generally support 
the NPRM proposals. The comments are discussed in detail below.
    Several commenters submitted comments that are outside of the scope 
of this rulemaking. For example, one commenter wants us to eliminate 
any regulation that allows shippers to prepare and load any hazardous 
material into a non-bulk fiber drum. This commenter also suggests that 
we develop a uniform hazardous materials shipping paper or bill of 
lading. Several other commenters recommend revisions to the current 
training requirements in Subpart H of Part 172. Other commenters 
suggest that we should provide special handling provisions applicable 
to the transportation and recycling of lead batteries. Because these 
comments are beyond the scope of this rulemaking, they are not 
addressed in this final rule.

A. Packaging Specifications

    The NPRM proposed that Federal hazmat law and the HMR would 
continue to apply, as they do currently, to persons who manufacture, 
mark, maintain, recondition, repair, or test packagings or components 
thereof that are represented, marked, certified, or sold as qualified 
for use in the transportation of hazardous materials in commerce.
    Packaging integrity is critical to safe transportation of hazardous 
materials; therefore, it is imperative that DOT exercise jurisdiction 
over packaging requirements to the exclusion of state and local 
governments. Further, uniformity of packaging specifications assures 
the safe and efficient movement of hazardous materials across state 
lines and international boundaries. Thus, consistent with the 
preemption provisions of Federal hazmat law, the Secretary's regulatory 
jurisdiction in this area must preempt state and local law. The NPRM 
noted that a packaging marked to certify that it conforms to HMR 
requirements must be maintained in accordance with applicable 
specification requirements whether or not it is in transportation in 
commerce at any particular time.
    Commenters generally support this aspect of the NPRM. Commenters 
agree that the packaging requirements ``directly affect packaging 
integrity and are specifically delineated in the enabling statute.'' 
(American Chemistry Council)
    Three commenters express concern that the requirement to maintain a 
certified packaging in accordance with applicable specification 
requirements whether or not it is in transportation will impose a 
significant compliance burden. The commenters ``purchase many 
containers, such as steel drums, which arrive with DOT or UN 
specification markings, but are used for purposes other than the 
transport of hazardous materials. Since DOT or UN specification 
markings are permanently affixed to such containers, and cannot be 
easily removed or covered, this requirement would require considerable 
effort to establish a separate supply chain * * *'' (Detroit Edison) 
Another commenter states, ``Containers are used in facilities for a 
number of things from interim storage to waste receptacles. A facility 
should not be required to maintain the certification for a package if 
it is in any other use than for transportation.'' (Nuclear Energy 
Institute)
    The specification markings on DOT or UN specification packagings 
certify that the packaging has been designed, tested, and maintained in 
conformance with all applicable HMR requirements. The NPRM proposed no 
change in the current applicability of the HMR to packagings that are 
represented, marked, certified, or sold as qualified for use in the 
transportation of hazardous materials in commerce. We recognize that 
many entities use DOT or UN specification packagings for temporary or 
permanent storage of hazardous materials. However, because a packaging 
that is used for storage one day may be used for transportation the 
next, it is critical to transportation safety that packagings 
represented as meeting DOT or UN specification requirements in fact do 
so.
    A DOT or UN specification packaging that does not conform to the 
marked standard must be clearly identified by the manufacturer or 
distributor as not conforming to the marked standard. Under the 
notification provisions of Sec.  178.2(c) of the HMR, the manufacturer 
and each subsequent distributor of a non-conforming packaging must 
inform customers of all regulatory requirements not met at the time of 
transfer. For example, the manufacturer of a drum for which both 
conforming and non-conforming covers are offered may indicate as part 
of the notification requirement that, when fitted with the non-
conforming cover, the drum does not conform to the marked standard. 
Covers must be marked or there must be a sufficient description in the 
notification for the user to readily distinguish between the conforming 
and non-conforming cover. In such cases, non-applicable standard 
markings should be covered, removed, or obliterated. We realize that 
this may not be practical, particularly for packagings with embossed 
markings. Provided sufficient information is provided to enable the 
user to identify packagings that do not meet all applicable regulatory 
requirements, the appearance of standard markings is not prohibited.
    Persons who offer hazardous materials for transportation must 
assure that the packaging used for such transportation conforms to all 
applicable regulatory requirements. In the case of specification 
packagings, persons who offer hazardous materials for transportation 
must assure that the packaging conforms to the applicable specification 
in all respects and that it has been properly maintained and repaired. 
If a packaging shows evidence of damage such that its effectiveness as 
a container may be substantially reduced or if the packaging has been 
subjected to conditions or operating practices that could reduce its 
effectiveness, it must be inspected and repaired, in accordance with 
applicable requirements, before it can be filled with a hazardous 
material and offered for transportation.
    In this final rule, we are reiterating that the HMR apply, as they 
do currently, to persons who manufacture, mark, maintain, recondition, 
repair, or test packagings or components thereof that are represented, 
marked, certified, or sold as qualified for use in the transportation 
of hazardous materials in commerce.

B. Pre-Transportation Functions

    In the NPRM, we proposed a new term--``pre-transportation 
function''--for activities performed prior to the transportation of a 
hazardous material and to which the HMR apply. As defined in the NPRM, 
a pre-

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transportation function is performed to prepare a hazardous material 
and its accompanying shipping documentation for transportation and is 
required to assure its safe transportation in commerce. Thus, pre-
transportation functions include activities such as determining a 
material's hazard class, selecting a packaging, marking and labeling a 
package, preparing shipping papers and emergency response information, 
and selecting and affixing placards. Preparation of a hazardous 
material for transportation also includes filling and closing the 
packaging. As defined in the NPRM, pre-transportation functions 
include: (1) Determining the hazard class of a hazardous material; (2) 
selecting a hazardous materials packaging; (3) filling a hazardous 
materials packaging; (4) securing a closure on a filled hazardous 
materials package or container or on one containing a residue of a 
hazardous material; (5) marking a package to indicate that it contains 
a hazardous material; (6) labeling a package to indicate that it 
contains a hazardous material; (7) preparing a hazardous materials 
shipping paper; (8) providing and maintaining hazardous materials 
emergency response information; (9) reviewing a hazardous materials 
shipping paper to verify compliance with the HMR or international 
equivalents; (10) for persons importing a hazardous material in to the 
United States, providing the shipper and the forwarding agent at the 
place of entry into the United States with information as to the 
requirements of the HMR that apply to the shipment of the material 
while in the United States; (11) certifying that a hazardous material 
is in proper condition for transportation in conformance with the 
requirements of the HMR; (12) blocking and bracing a hazardous 
materials package in a freight container or transport vehicle; (13) 
segregating a hazardous materials package in a freight container or 
transport vehicle from incompatible cargo; and (14) selecting, 
providing, or affixing placards for a transport vehicle to indicate 
that it is carrying hazardous materials.
    These functions usually occur before transportation in commerce 
begins--that is, before a carrier takes possession of the hazardous 
material. However, most commenters agree that pre-transportation 
functions have a direct bearing on the safety of a hazardous materials 
shipment in commerce and, thus, should be subject to the HMR. Further, 
commenters agree that regulation of these functions must be uniformly 
applied and enforced if a hazardous materials shipment is to move 
smoothly, efficiently, and safely from its point of origin to its 
destination. As we explained in the NPRM, Congress recognized the 
importance of national uniformity in these areas by creating a specific 
preemption provision in section 5125(b) of Federal hazmat law 
applicable to state, local, and Indian tribe requirements on: (1) The 
designation, description, and classification of hazardous material; (2) 
the packing, repacking, handling, labeling, marking, and placarding of 
hazardous material; (3) the preparation, execution, and use of shipping 
documents related to hazardous material and requirements related to the 
number, contents, and placement of those documents; (4) the written 
notification, recording, and reporting of the unintentional release in 
transportation of hazardous material; and (5) the design, 
manufacturing, fabricating, marking, maintenance, reconditioning, 
repairing, or testing of a packaging or container represented, marked, 
certified, or sold as qualified for use in transporting hazardous 
material.
    Certain functions may be considered both pre-transportation and 
transportation functions, particularly those that involve loading of 
hazardous materials into packagings or onto transport vehicles. In the 
NPRM, we identified loading functions as pre-transportation functions, 
including: (1) Filling of a packaging (both bulk and non-bulk); (2) 
securing closures on a filled hazardous materials package (both bulk 
and non-bulk) or on one containing a residue of a hazardous material; 
(3) blocking and bracing hazardous materials in a freight container or 
transport vehicle; or (4) segregating hazardous materials packages in a 
freight container or transport vehicle from incompatible cargo. The 
NPRM also identified loading of packaged or containerized material onto 
a transport vehicle or loading of hazardous materials into a bulk 
packaging as loading incidental to movement. Commenters expressed 
confusion about this aspect of the NPRM.
    It was our intention in the NPRM to clarify that loading functions, 
as listed above, are regulated under the HMR when performed by any 
person, whether shipper or carrier. If a shipper performs a loading 
function prior to the carrier's arrival at the shipper facility, that 
function is a pre-transportation function and is subject to all 
applicable regulatory requirements. Because carrier possession of a 
hazardous material is key to our definition of ``transportation'' for 
purposes of the HMR, loading functions that are performed by carrier 
personnel or by shipper personnel in the presence of the carrier are 
considered loading incidental to movement and are, thus, transportation 
functions. Irrespective of the person performing the function or the 
designation as a pre-transportation or transportation function, loading 
is regulated under the HMR.
    For consistency with our treatment of non-bulk packagings, in the 
NPRM and this final rule we include filling and closing of a bulk 
packaging as a pre-transportation function in the same way that filling 
and closing a non-bulk packaging is a pre-transportation function. 
Filling and closing a hazardous materials packaging, whether bulk or 
non-bulk, is part of the process of preparing the hazardous material 
for transportation. As stated above, any person who performs a pre-
transportation function must perform that function in accordance with 
the HMR. Thus, any person who fills and closes a bulk or non-bulk 
packaging must assure that the packaging is filled and closures are 
secured in accordance with all applicable regulatory requirements. Such 
person may be a shipper or a carrier. If a shipper performs the 
function, it is a pre-transportation function. If a carrier performs 
the function or if the function is performed in the presence of the 
carrier, then it is a transportation function.
    Similarly, blocking and bracing and segregation of packages in a 
transport vehicle are functions frequently performed by carrier 
personnel. However, shipper personnel may also perform such functions, 
particularly when loading hazardous materials packages into freight 
containers. These are regulated functions under the HMR, whether 
performed by shipper or carrier personnel.
    In this final rule, we modified the definitions of ``pre-
transportation function'' and ``loading incidental to movement'' to 
reflect commenters'' suggestions and concerns. ``Pre-transportation 
function'' is defined in this final rule as a function specified in the 
HMR that is performed prior to the movement of hazardous materials in 
commerce and is required to assure the safe transportation of a 
hazardous material in commerce. The list of examples of pre-
transportation functions includes filling a hazardous materials 
packaging, including a bulk packaging; blocking and bracing a hazardous 
materials package in a freight container or transport vehicle; and 
segregating a hazardous materials package in a freight container or

[[Page 61910]]

transport vehicle from incompatible cargo.
    ``Loading incidental to movement'' is defined in this final rule to 
mean loading of packaged or containerized hazardous material by carrier 
personnel or in the presence of carrier personnel onto a transport 
vehicle, aircraft, or vessel for the purpose of transporting it, 
including blocking and bracing a hazardous materials package in a 
freight container or transport vehicle, and segregating a hazardous 
materials package in a freight container or transport vehicle from 
incompatible cargo. For a bulk packaging, ``loading incidental to 
movement'' means filling of a bulk packaging by carrier personnel or in 
the presence of carrier personnel for the purpose of transporting it. A 
shipper who loads hazardous materials into a cargo tank or rail tank 
car is subject to HMR requirements applicable to such loading in the 
same way that a carrier performing the same function is subject to 
applicable HMR requirements. When a shipper performs such loading 
functions in the absence of the carrier, they are pre-transportation 
functions. When a carrier performs such loading functions or the 
shipper performs the functions with the carrier present, the functions 
meet the definition for ``loading incidental to movement.'' We also 
modified the description of pre-transportation functions in Sec.  
171.1(b) to indicate that such functions may be performed by shipper or 
carrier personnel. It is important to note in this context that, even 
where the HMR specify requirements for loading a packaging or 
container, OSHA requirements may also apply. As discussed elsewhere in 
this preamble, OSHA regulations may specify operational procedures for 
hazardous materials loading operations. Persons who perform loading 
operations generally will have to comply with both the HMR and OSHA 
requirements. Similarly, EPA requirements for environmental protection 
that relate to loading operations--such as requirements for secondary 
containment or vapor recovery--may also apply.
    One commenter suggests that the ``discussion of `pre-transportation 
functions' in [the NPRM], which concludes that such activities are not 
`incidental' to the movement of hazardous materials, is statutorily 
nonsensical and unsupported by the words of the statute. * * * The 
statute contains no authorization for ``pre-transportation functions.'' 
It only contains authorization for the agency to regulate the 
`movement' of goods; or loading, unloading or storage `incidental' to 
movement; or (in Section 5103(b)(iii)) a few named activities connected 
with the manufacture and repair of packaging or containers (not at 
issue here). * * * If DOT insists that the named `pre-transportation' 
functions do not fall into the statutory category of `movement' 
(because the carrier has not taken possession of the material * * *), 
then they must fall into the statutory category of loading, unloading, 
or storage `incidental' to the movement of such goods.'' (National 
Industrial Transportation League) The commenter appears to have misread 
Federal hazmat law. Federal hazmat law authorizes the Secretary of 
Transportation to establish regulations for the safe and secure 
transportation of hazardous materials in commerce. The regulations 
apply to persons who: (1) Transport hazardous materials in commerce; 
(2) cause hazardous materials to be transported in commerce; or (3) 
manufacture, mark, maintain, recondition, repair, or test packagings or 
containers (or components thereof) that are represented, marked, 
certified, or sold as qualified for use in the transportation of 
hazardous materials in commerce. 49 U.S.C. 5103(b)(1)(A); emphasis 
added. In addition, the Secretary is authorized to regulate any aspect 
of hazardous materials transportation that the Secretary considers 
appropriate. 49 U.S.C. 5103(b)(1)(B); emphasis added. Federal hazmat 
law thus clearly recognizes the critical safety impact of activities 
performed in advance of transportation by persons who cause the 
transportation of hazardous materials in commerce. Such activities need 
not be considered ``loading, unloading, or storage incidental to 
movement'' to be subject to regulations promulgated under the authority 
of Federal hazmat law.
    One commenter recommends that the definition of the term ``pre-
transportation function'' should be ``explicit, complete, and self-
contained. Although the proposed definition includes descriptions of 
specific functions, the enumerated functions are not exclusive. * * * A 
definitive list would go a significant way to provide clarity and 
certainty in this gray area of federal jurisdiction.'' (Utility Solid 
Waste Activities Group) We disagree that a definitive list is 
necessary. As adopted in this final rule, the term ``pre-transportation 
function'' is defined to mean a function that is required to assure the 
safe transportation of a hazardous material in commerce. The list of 
examples provided in the definition includes functions currently 
regulated under the HMR. An all-inclusive listing of pre-transportation 
functions would limit our flexibility should we determine that 
additional pre-transportation functions should be regulated or discover 
that we inadvertently omitted functions or activities from the 
definition.
    A number of commenters address the specific functions we proposed 
to include in the definition for ``pre-transportation function.'' 
Several commenters state that blocking and bracing of packages in a 
transport vehicle, segregation of materials in a transport vehicle, and 
providing and affixing placards to a transport vehicle should not be 
considered pre-transportation functions because ``the carrier, not the 
shipper, typically performs these functions.'' (FedEx Ground Package 
Systems, Inc.) We do not agree that carrier personnel usually perform 
these functions. In fact, both shippers and carriers may perform these 
functions. Shippers frequently use their own personnel to load trailers 
or freight containers. Further, it is usually the shipper who provides 
placards to the carrier when placarding is required by the HMR. 
However, the commenters are correct that carriers may perform some or 
all of these functions, as well. Commenters are also correct that the 
definition of ``pre-transportation function'' should not be dependent 
on the person performing the function. The definition is intended to 
delineate functions and activities that are regulated under the HMR 
because, while they generally occur before transportation in commerce 
begins, they directly affect transportation safety.
    As one commenter points out, ``In reality, after taking possession 
of a hazardous material, carriers also perform activities that RSPA 
classifies in the Proposed Rule as `pre-transportation functions.' In 
any final rule, RSPA should clarify that `pre-transportation functions' 
are not solely performed prior to a carrier's possession of a hazardous 
material, and that carriers may perform `pre-transportation' functions 
after taking possession of a hazardous material.'' (United Parcel 
Service, Inc.) We agree. As we stated in the preamble to the NPRM, any 
person who performs a pre-transportation function must perform that 
function in accordance with HMR requirements. Such persons may include 
shippers, carriers, freight forwarders, non-vessel operating common 
carriers, freight brokers, and other entities. In this final rule, we 
modified the definition of ``pre-transportation function'' to clarify 
that the HMR requirements apply to any person who performs or is 
responsible

[[Page 61911]]

for performing a pre-transportation function.
    Several commenters address the statement in the preamble to the 
NPRM, reiterated above, that any person who performs a pre-
transportation function must perform that function in accordance with 
HMR requirements. In this context, the NPRM noted that the HMR apply to 
persons who offer hazardous materials for transportation in commerce or 
cause hazardous materials to be transported in commerce. As examples of 
persons who cause hazardous materials to be transported in commerce, 
the NPRM listed freight forwarders, non-vessel operating common 
carriers, freight brokers, and other entities that perform pre-
transportation functions. One commenter states, ``Since in more than 
70% of `third party shipments' the third party has no physical 
involvement with the shipments, making them liable on these shipments 
for compliance with hazmat regulations, makes them a guarantor of 
compliance, when they have no ability to effectuate compliance.'' 
(Gallagher and Howarth, P.C.) This commenter is concerned that this 
detail in the NPRM creates an uninsurable liability for third parties 
who ``simply arranged the transportation of the shipment.''
    Another commenter ``believes that the proposed regulation of `pre-
transportation functions' as drafted would be unfair, and possibly 
unenforceable as well. * * * [B]rokers, freight forwarders and [non-
vessel operating common carriers] seldom deal with the freight 
physically at the dock, and they must rely heavily on information 
received from shippers as to the contents. Intermediaries have the 
responsibility to select the carrier, and they may issue a house bill 
of lading or freight receipt to the shipper, but they do not ordinarily 
take responsibility for preparing the underlying carrier's shipment 
documentation, or for making the physical arrangements to classify, 
placard, brace and pack the cargo. As long as either the shipper or the 
underlying carrier is performing those functions, it would be unfair 
and unworkable for DOT to hold the intermediary liable for any errors 
made by parties over which they have no operational control.'' 
(Transportation Intermediaries Association)
    We agree. We did not mean to suggest that third-party 
intermediaries would be held responsible for errors made by the 
shippers and carriers with whom they work unless the third-party knew 
or should have known about the error. A third-party intermediary who 
prepares a shipping paper for a hazardous materials shipment and signs 
the shipper certification is, in effect, assuming responsibility for 
compliance with the regulations for all aspects of that shipment about 
which he knew or should have known. For example, if a freight forwarder 
or consolidator prepares a new shipping paper for a consolidated load 
that includes hazardous materials, the shipping paper must conform to 
all applicable HMR requirements. We realize that the shipping paper 
will be based on information provided by the original shipper. A third-
party intermediary would not be held responsible for errors made by the 
shipper in its initial shipping documentation, such as incorrect 
classification of a material. However, using the information available, 
a third-party intermediary is responsible for completing a shipping 
paper in accordance with HMR requirements. As another example, a third-
party intermediary may handle a package that contains a hazardous 
material. If the shipping documentation prepared by the original 
shipper indicates that the material is a flammable liquid, but the 
package label indicates a CORROSIVE hazard, the third-party 
intermediary must resolve the discrepancy before the package may be 
transported. In such a situation, the third-party intermediary knew or 
should have known that the shipment he was handling did not conform to 
applicable regulatory requirements. Further, as is currently the case, 
a third-party intermediary who performs a pre-transportation function 
must perform that function in conformance with the HMR. For example, if 
a third-party intermediary consolidates a number of packages into a 
freight container, he must assure that the packages are loaded into the 
freight container as required by applicable regulations, including 
those related to blocking and bracing of cargo or segregation of 
incompatible materials.
    In the NPRM, we proposed to define ``offer a hazardous material'' 
to mean the performance of a pre-transportation function under the HMR. 
In this way, we intended to clarify that, consistent with Federal 
hazmat law, the HMR apply to functions performed to prepare hazardous 
materials for transportation in commerce as well as to the actual 
transportation of hazardous materials in commerce. In addition, we 
proposed to define ``pre-transportation function'' to mean tendering a 
hazardous material to a carrier for transportation in commerce, causing 
a hazardous material to be transported in commerce, or performing a 
function in the HMR that is required to assure the safe transportation 
of a hazardous material in commerce. Further, in Sec.  171.2, we 
proposed that no person may offer or accept a hazardous material for 
transportation unless the hazardous material is properly classed, 
described, packaged, marked labeled, and in condition for shipment as 
required under the HMR.
    Several commenters note that under our proposed definitions, a 
shipper would offer a hazardous material when performing pre-
transportation functions that Sec.  171.2 requires the shipper to 
perform prior to offering a hazardous material for transportation. 
``RSPA could not have intended such an anomalous and circular result, 
and accordingly should either revise or withdraw its proposed 
definition of `Offer a hazardous material.' '' (United Parcel Service, 
Inc.) Commenters are correct. We did not intend such an anomalous and 
circular result. In this final rule, we revised the definition of 
``pre-transportation function'' to mean a function specified in the HMR 
that is required to ensure the safe transportation of a hazardous 
material in commerce. We agree with commenters that the proposed 
definition for ``offer a hazardous material'' is confusing and 
difficult to apply. Therefore, in this final rule we do not include a 
definition for ``offer a hazardous material.''
    Several commenters express confusion as to precisely when a person 
performing pre-transportation functions is responsible for 
demonstrating compliance with the HMR's pre-transportation 
requirements. ``Most [facilities at which hazardous materials are 
tendered for shipment] have multilevel check systems designed to ensure 
that the freight conforms to applicable HMR requirements. The 
[facility's hazmat employees] can make final changes to documentation, 
labels, etc., up until the time that the product is loaded and shipping 
documents are signed.'' (International Warehouse Logistics Association) 
We agree with commenters that this point needs clarification. However, 
the point at which non-compliance with a pre-transportation function 
becomes enforceable will depend on the facts applicable to a specific 
instance. As a general rule, we would expect an offeror to be able to 
demonstrate compliance with all applicable pre-transportation 
requirements at the time the hazardous material is staged for loading 
and the consignor or his agent signs the shipping paper. The offeror's 
signature (or that of his agent as permitted by Sec.  172.205(d)(1)) on 
the shipping paper is its certification that the hazardous

[[Page 61912]]

material is prepared for transportation in accordance with HMR 
requirements.
    Even in the absence of a signed shipping paper, a shipper may be 
responsible for assuring compliance with specific pre-transportation 
requirements if other factors indicate that a particular pre-
transportation activity has been completed. For example, if a shipper 
has loaded a trailer with improperly packaged hazardous materials and 
requested that a carrier pick it up for transport, it is fairly clear 
that the shipper does not intend to make further changes to the 
packages, even if a shipping paper has not yet been executed.
    We will continue to exercise our statutory authority to inspect for 
compliance with the HMR requirements applicable to pre-transportation 
functions. We will also continue to exercise our authority to take 
appropriate enforcement action when we discover that a pre-
transportation function has been performed in a manner that does not 
comply with the HMR, even if transportation of the hazardous material 
in commerce has not yet begun (i.e., the carrier has not yet taken 
possession of the material) or has not been performed at all (i.e., 
undeclared shipments offered for transportation). This approach is 
consistent with our authority under Sec.  5103 of Federal hazmat law to 
regulate activities that affect the safe and secure transportation of 
hazardous materials in commerce. Also, as stated above, this approach 
is consistent with Congress' intent that the HMR requirements 
applicable to the activities we propose to define as ``pre-
transportation functions'' be applied and enforced in a manner that 
promotes uniformity in those areas.
    Several commenters note that the NPRM included two inconsistent 
descriptions of pre-transportation functions. In proposed Sec.  171.2, 
we listed 14 activities; in proposed Sec.  171.8, we inadvertently 
omitted one listed activity. In this final rule, we corrected the 
regulatory text to make the two sections consistent.
    The NPRM proposed to include as a ``pre-transportation function'' 
the providing of timely and complete information as to the HMR 
requirements that will apply to the transportation of the material 
within the United States to the shipper and the forwarding agent at the 
place of entry into the United States. Two commenters suggest a 
revision to remove the phrase ``and the forwarding agent at the place 
of entry into the United States'' for consistency with applicable 
Customs requirements. ``The shipper, to be in compliance with 
applicable international and United States regulations, is required to 
provide the requisite hazmat information to the carrier and/or 
forwarding agents prior to the introduction of the material into 
international transportation and commerce. Classification, product 
description (selection of shipping name), package selection, testing, 
marking, labeling and creation of applicable shipping papers should all 
occur before the material reaches the `place of entry into the United 
States.' Further, communications with the involved freight forwarder 
may or may not involve the importer. The party responsible for 
obtaining the transportation generally has this relationship. Removal 
of this phrase from the regulation will continue to meet the safety and 
communications requirements intended while providing the flexibility of 
clearance now permitted under Customs rules.'' (E.I. DuPont de Nemours 
and Company) We agree and have made the suggested revision in this 
final rule.
    In this final rule, we are adopting the definition for ``pre-
transportation function'' as proposed in the NPRM, with the revisions 
suggested by commenters and discussed above.

C. Transportation That Is ``in Commerce''

    In the NPRM, we proposed several definitions to clarify the 
applicability of the HMR to transportation functions and the persons 
who perform them. Federal hazmat law requires the Secretary of 
Transportation to establish regulations for the safe and secure 
transportation of hazardous materials in intrastate, interstate, and 
foreign commerce. As noted above, the law defines ``transportation'' 
and ``commerce'' separately. Further, Federal hazmat law authorizes the 
Secretary of Transportation to apply these regulations to persons who 
transport hazardous materials in commerce or cause hazardous materials 
to be transported in commerce.
    The NPRM proposed to include in the HMR a section specifically 
stating that noncommercial transportation of hazardous materials is not 
subject to the HMR. Consistent with numerous letters of interpretation 
issued over the past several decades (see NPRM discussion at 66 FR 
32431-32432), the NPRM proposal included a list of activities that are 
not part of transportation of a hazardous material in commerce and, 
therefore, not subject to regulation under the HMR. The list included: 
(1) Transportation by private individuals in private motor vehicles for 
personal use; (2) transportation by government employees for government 
purposes; and (3) rail and motor vehicle movements of hazardous 
material occurring solely within a contiguous facility boundary where 
public access is restricted.
    Commenters generally agree that transportation of hazardous 
materials by private individuals in private motor vehicles for personal 
use is not transportation in commerce and is thus outside the scope of 
authority delineated in Federal hazmat law. Similarly, most commenters 
agree that government entities transporting hazardous materials for 
non-commercial purposes are not ``persons'' subject to Federal hazmat 
law. (See 49 U.S.C. 5102(9).)
    One commenter disagrees that transportation of hazardous materials 
by government entities for government purposes should be excluded from 
regulation under the HMR. ``[We do] not see why hazardous materials 
being moved `* * * in motor vehicles, aircraft or vessels operated by 
federal, state or local government employees * * *' pose any less of a 
threat to the people of the United States than those of private 
operators.'' (E.I. DuPont de Nemours and Company) Our authority to 
regulate the transportation of hazardous materials is restricted by 
Federal hazmat law. As stated above, Federal hazmat law specifically 
excludes government entities from regulation when moving hazardous 
materials for a non-commercial purpose. Thus, application of the HMR to 
such movements is outside the scope of the Secretary's regulatory 
authority under the law.
    One commenter expresses confusion about movements of hazardous 
materials that occur entirely within a contiguous facility boundary 
where public access is restricted. The commenter formulates the 
following scenario: ``Once the shipper personnel have loaded the 
hazardous material into the cargo tank, it is then returned to the 
central staging area [within the contiguous facility boundary]. If the 
carrier moves the loaded cargo tank from the loading point back to the 
central staging area then the HMRs would apply; however, if [company] 
personnel move the loaded cargo tank from the loading area back to the 
central staging area then the HMR would not apply.'' (Dow) The 
commenter is not correct. As described in the NPRM (66 FR 32431) and 
adopted in this final rule, movement of hazardous materials that occurs 
entirely within a contiguous facility boundary where public access is 
restricted is not commercial transportation and therefore is not

[[Page 61913]]

subject to HMR requirements, even if the movement is conducted by a 
common or contract carrier. Thus, for example, movement of hazardous 
materials between Warehouse A and Warehouse B that occurs solely within 
the contiguous boundaries of a facility is not movement in commerce; 
shipping paper, UN specification packaging, labeling, marking, and 
other HMR requirements do not apply to these types of movements.
    As we discussed in the preamble to the NPRM (66 FR 32432), we have 
indicated in letters of interpretation that use of a red traffic signal 
or road closure to deny public access to a public highway utilized for 
movements of hazardous materials between areas of the same facility 
makes the portion of the highway to which access is restricted private. 
Movements of hazardous materials in such circumstances are not subject 
to the HMR. The same conditions apply to rail transportation of 
hazardous materials that utilizes private railroad tracks that cross a 
public highway. In a letter of interpretation, we have said that the 
HMR apply to transportation on private tracks that are not part of the 
general system of rail transportation if the private tracks cross a 
public highway and access to the tracks is not controlled or restricted 
(May 4, 1998 RSPA letter to Amoco Chemicals). However, if warning 
lights or a gate restricts access to the tracks during the hazardous 
materials movement, then the HMR do not apply.
    Another commenter requests clarification of the status under the 
HMR of emergency vehicles, such as aircraft rescue and firefighting 
vehicles, that are owned by a private company and respond to 
emergencies on company property. The commenter notes that, although 
these emergency vehicles generally operate on company property, they 
also have official county identification numbers as emergency vehicles 
and may be dispatched to respond to incidents in the community in the 
same way that a public agency would respond.
    Emergency vehicles owned by a company are not regulated under the 
HMR when they operate solely within the contiguous boundaries of a 
facility to respond to emergencies at the facility. Further, such 
emergency vehicles are not subject to HMR requirements when they leave 
company property to respond to emergencies because they are acting 
under the authority of the local government, which treats them as a 
government-operated vehicle for community emergency response. 
Similarly, because such vehicles operate under local government 
authority, they are not subject to HMR requirements when they leave 
company property for maintenance, offsite training, or other purposes.
    The NPRM included transportation activities of state-chartered and 
-funded universities as noncommercial transportation, unless the 
university transports hazardous materials in furtherance of a 
commercial enterprise. One commenter suggests that ``[t]he definition 
of ``in commerce'' should be expanded to include state entities which 
are engaged in private enterprises of any percentage. If a state entity 
chooses to allow private enterprises to use its facilities and to co-
mingle their hazardous [materials] with that of the state entity, the 
state entity has taken itself out of the `in commerce' exception.'' 
(The Frickey Law Firm) We disagree. A state entity need not treat all 
transportation activities as commercial transportation merely because 
some of its transportation of hazardous materials is in furtherance of 
a commercial enterprise.
    This commenter also asks for clarification concerning whether the 
use of contractor personnel by a state-chartered and -funded university 
to perform functions regulated under the HMR triggers coverage by the 
HMR. ``[T]he use of outside contractors by a state entity * * * should 
be clearly defined as falling within the HMR.'' (The Frickey Law Firm) 
We agree. The NPRM (66 FR 32431) and this final rule specifically state 
that the HMR apply to contractor personnel who perform regulated 
activities related to: (1) Packaging manufacturing, maintenance, and 
requalification; (2) pre-transportation functions; and (3) 
transportation functions (see Sec.  171.1(a), (b), and (c)).
    One commenter requests clarification of the statements in the NRPM 
on the applicability of the HMR to movements of hazardous materials 
within an airport facility. ``Proposed Sec.  171.1(d)(4) appears to 
imply that movement [of hazardous materials] by or aboard ramp vehicles 
[at an airport]--either containerized cargo on dollies or 
uncontainerized packages on carts, or ramp vehicles making ramp 
transfers of packages--could require the issuance of shipping papers to 
those on-airport drivers. At the time that hazardous materials are 
staged for flight, they are fully prepared for pickup prior to air 
transportation and delivery subsequent to air transportation. All 
hazard communications and notifications are in place for ground 
handlers and flight crew. Any requirement for additional shipping 
papers for the on-airport drivers of these incidental ramp vehicles 
would impose an unjustified cost and obstructive delay of airport 
operations.'' (Air Transport Association) This commenter suggests that 
the NPRM proposed to ``abandon'' our past policy of excluding intra-
facility movements of hazardous materials from regulation under the HMR 
because the language of Sec.  171.1(d)(4) included the phrase ``other 
than at a transportation facility'' when describing movements of 
hazardous materials within a contiguous facility boundary.
    The NPRM (66 FR 32431) cited letters of interpretation that 
clarified that the HMR do not apply to intra-facility movements of 
hazardous materials that take place entirely on private property or 
where public access is denied or restricted. Such movements are not 
``in commerce'' and, therefore, are not subject to regulation under the 
HMR. At an airport, such movements include transfers of hazardous 
materials used for aircraft maintenance and refueling operations from 
one location to another within the airport's boundaries.
    As the NPRM noted, baggage or packages offered to airlines for 
transportation are subject to HMR requirements during that portion of 
transportation that takes place in the airport and thereafter. Thus, 
for example, the prohibitions in the HMR applicable to hazardous 
materials that may not be carried in baggage on board an aircraft apply 
to baggage that is brought to an airport and transported through the 
airport to an airplane. Similarly, requirements for hazardous materials 
offered as cargo to an airline apply when the airline accepts the 
package for transportation and during its movement at the airport prior 
to loading onto an airplane. This statement should not be interpreted 
to mean that an airline must complete a separate shipping paper each 
time cargo is transferred through the airport to or from an airplane. 
Rather, our intention is to make clear that requirements for 
appropriate packaging, marking, labeling, emergency response 
information, shipping documentation, and the like continue to apply 
while the cargo is moving on airport property. The NPRM did not propose 
an abandonment of our long-standing interpretation of the meaning of 
``transportation that is in commerce,'' Rather, the NPRM, and this 
final rule, reiterate this long-standing interpretation and make it 
explicit in the HMR. We agree that the phrase ``other than at a 
transportation facility'' as used in the NPRM is misleading and have 
removed it in this final rule.
    Note that for rail transportation, certain intra-facility movements 
may be

[[Page 61914]]

subject to HMR requirements. For example, movements within railyards to 
assemble rail cars containing hazardous materials into trains are 
subject to applicable HMR requirements. In addition, facilities at 
which rail cars containing hazardous materials are received, stored, or 
handled during transportation must maintain emergency response 
information applicable to the hazardous materials in accordance with 
Sec.  172.602 of the HMR.
    The NPRM proposed to except from coverage under the HMR ``any 
matter subject to the postal laws and regulations.'' One commener 
opposes this exception. ``RSPA does not provide a reason for this 
exemption or indicate what precautions are in place or are being 
implemented to justify this position. The fact that all items 
transported by the U.S. Postal Service (USPS) will enter the 
transportation system at some point and will be transported by 
commercial carriers should be of utmost interest and concern to RSPA.'' 
(National Transportation Safety Board) The exception for matter covered 
by postal laws and regulations is based on Federal hazmat law, which 
explicitly excludes the U.S. Postal Service from the definition of 
``persons'' to whom Federal hazmat law and the regulations issued 
thereunder apply. 49 U.S.C. 5102. The statute also explicitly excludes 
from its application ``any matter that is subject to the postal laws 
and regulations of the United States under this chapter or title 18 or 
39.'' 49 U.S.C. 5126.
    In the NPRM, we proposed to define ``commerce'' to mean trade or 
transportation in the jurisdiction of the United States between a place 
in a state and a place outside of the state; or that affects trade or 
transportation between a place in a state and a place outside of the 
state. Several commenters disagree with this proposed definition, 
noting that it appears to exclude intrastate commerce. ``Congressional 
instructions to the Secretary * * * indicate that the Secretary `* * * 
shall issue regulations for the safe transport of hazardous materials 
in intrastate, interstate, and foreign commerce.' [49 U.S.C. 
5103(b)(1)] The definition of the term `commerce' * * * should reflect 
this instruction and be enlarged to include hazardous materials 
movements within a state as well as those in interstate commerce. Such 
a change would reflect current practice and is * * * consistent with 
current understanding * * *'' (E.I. Dupont de Nemours and Company) We 
agree. The definition proposed in the NPRM is consistent with the 
definition of ``commerce'' in Sec. Sec.  5102 and 5103 of Federal 
hazmat law. However, the language in Sec.  5103(b) is more explicit 
concerning the Secretary's authority to regulate intrastate commerce. 
In this final rule, we revised the definition of ``commerce'' as 
suggested by commenters to clearly include intrastate transportation as 
specified in Sec.  5103 of Federal hazmat law.

D. Transportation Functions Subject to the HMR

    The NPRM proposed that, for purposes of applicability of the HMR, 
transportation in commerce begins when a carrier takes physical 
possession of a hazardous material for the purpose of transporting it 
and continues until the package containing the hazardous material is 
delivered to the destination indicated on the shipping documentation 
under which the hazardous material is moving. This proposal was based 
on our conclusion that the key word in the definition of 
``transportation'' in Federal hazmat law is ``movement.'' We proposed 
to define ``movement'' to mean ``the physical transfer of a hazardous 
material from one geographic location to another by rail car, aircraft, 
motor vehicle, or vessel.'' Because a carrier ``moves'' a hazardous 
material, transportation in commerce necessarily involves activities 
performed by a carrier in connection with the movement of a hazardous 
material. Thus, under the NPRM proposal, all loading, unloading, and 
storage functions performed by a carrier in the course of transporting 
a hazardous material in commerce would be subject to the HMR.
    A number of commenters support this demarcation of the beginning 
and end points of transportation in commerce. ``We believe that the 
definition of `in transportation' must be a simple one which is applied 
uniformly to all types of containers under all types of circumstances. 
Transportation in commerce should begin when a carrier accepts and 
exercises control over a hazardous material for purposes of 
transporting it and ends when the carrier relinquishes control of the 
shipment.'' (Monsanto Company; see also Arkansas Department of 
Environmental Quality, Contra Costa Health Services, Environmental 
Technology Council, International Brotherhood of Teamsters, 
International Warehouse Logistics Association, County of Los Angeles 
Fire Department, and National Propane Gas Association) However, many 
commenters disagree with the NPRM approach. Most of these commenters 
state that a definition of ``transportation in commerce'' should 
include all loading and unloading operations involving hazardous 
materials and suggest broadening the proposed definition accordingly.
    In making the case for a broader definition for ``transportation in 
commerce,'' several commenters suggest that we have misread Federal 
hazmat law. ``[Federal hazmat law] defines transportation as the 
`movement of property and loading, unloading, or storage incidental to 
the movement.' 49 U.S.C. 5102(12). The grammatical construction of the 
definition makes clear that the term `storage' is modified by the 
phrase `incidental to the movement,' while the terms `loading' and 
`unloading' stand by themselves. As such, RSPA has jurisdiction over 
all loading and unloading of hazardous materials that are transported, 
while RSPA's jurisdiction over storage activities is limited to those 
storage activities that are incidental to the movement/transportation 
of the materials.'' (American Trucking Associations) We disagree. If 
Congress had intended DOT's statutory authority to include all loading 
and unloading of hazardous materials that are transported, Federal 
hazmat law would have defined ``transportation'' to mean ``the 
movement, loading, and unloading of property, and storage incidental to 
the movement.'' There is no legislative history on this point. However, 
it is clear that Congress intended the phrase ``incidental to the 
movement'' to modify the terms ``loading,'' ``unloading,'' and 
``storage.'' This language and our interpretation of it are 
longstanding, dating back to the Hazardous Materials Transportation Act 
of 1975. Congress has had a number of opportunities to change the 
language and our interpretation in subsequent authorization 
legislation, but has not elected to do so. The fact that Congress 
continued to incorporate the language at issue in the Hazardous 
Materials Uniform Safety Act of 1990 and the recodification of Federal 
hazmat law in 1994 indicates that our position regarding this language 
is correct.
    Many commenters suggest a broader definition for ``transportation 
in commerce.'' These commenters say that `` `[t]ransportation in 
commerce' should begin when a hazardous material first begins to flow 
into a bulk package or when a non-bulk package is loaded onto a 
transport conveyance (truck trailer, railcar, ocean or intermodal 
container) and continue until that material is removed from the bulk 
package or the non-bulk packages are removed from the transportation 
conveyance. * * * [B]ulk packages should remain in `transportation in 
commerce' and subject to the HMR so long as any

[[Page 61915]]

residue of hazardous material remains.'' (American Chemistry Council) 
Other commenters suggest that DOT or UN specification bulk packagings 
should be regarded as ``instruments of commerce'' and should be ``under 
DOT's jurisdiction at all times and in all places.'' (Dangerous Goods 
Advisory Council)
    We disagree. As we stated in the NPRM, in clarifying the 
applicability of the HMR, we must consider how such clarification will 
affect other Federal and non-Federal programs that govern hazardous 
materials operations at fixed facilities. We must, therefore, look to 
Congressional and agency intent as expressed in the body of statutes 
and regulations exercising Federal jurisdiction over hazardous 
materials where transportation and non-transportation activities 
intersect. The Occupational Safety and Health Act (OSH Act), which 
provides the statutory authority for regulatory programs administered 
by OSHA, the authorizing statutes for the regulatory programs 
administered by EPA, and the Organized Crime Control Act of 1970, which 
provides the statutory basis for ATF programs applicable to the safety 
and security of explosives, express different statutory purposes. We 
must interpret and implement Federal hazmat law in a way that fulfils 
its statutory purpose and is consistent with the statutory purposes of 
the OSH Act, the Organized Crime Control Act, and EPA's statutes.
    A broad definition of ``transportation in commerce'' that 
encompasses all activities that occur beginning when a bulk packaging 
is filled and continuing until no residue of hazardous material remains 
or that considers DOT or UN specification bulk packagings to be 
``instruments of commerce'' would result in DOT regulation of long-term 
storage operations at both shipper and consignee facilities. This would 
have the effect of limiting and, perhaps, precluding regulation of 
hazardous materials stored at fixed facilities by other Federal and 
non-Federal government agencies. Federal and non-Federal programs for 
worker and environmental protection and the safety and security of 
explosives, established under the OSH Act, EPA's authorizing statutes, 
and the Organized Crime Control Act, could be adversely affected. Such 
an outcome clearly would be contrary to the intent of Congress as 
expressed in these laws and Federal hazmat law.
    Commenters also suggest that broadening the proposed definition of 
``transportation in commerce'' in the NPRM supports one of the primary 
purposes of Federal hazmat law--to promote nationally uniform 
regulations applicable to hazardous materials transportation. ``It has 
long been recognized that safety is enhanced dramatically when there 
are national, uniform standards governing the conduct at issue. 
Management efforts to track, implement, and report on different local, 
state, and Federal regulations only bring confusion and therefore, 
decrease the level of safety to our society and the environment.'' 
(National Paint and Paint Coatings Association, Inc.) Many commenters 
suggest that the proposed definition in the NPRM, which keys 
transportation in commerce to carrier control and possession of a 
hazardous material, will make it ``unmanageable to comply with the 
separate requirements of various Federal, state, and local authorities. 
This will invite state and local government to create different and 
perhaps conflicting rules regarding the loading and unloading of 
hazardous materials destined for or emerging from transportation and 
performed by persons other than the carrier's driver. Furthermore, this 
proposal would provide for local and state jurisdictions to set forth 
hazardous materials regulations without guidance or oversight by DOT.'' 
(American Chemistry Council) Another commenter suggests that ``if [a 
company] has multiple facilities within the United States then arguably 
each facility may be subject to differing state and local laws and 
regulations, thus precluding [the company] from implementing a 
consistent, best practices safety program. Uniformity is essential in 
the handling and transport of hazardous materials.'' (Dow)
    Commenters misunderstand the reason for nationally uniform 
regulations applicable to the transportation of hazardous materials. As 
commenters note, nationally uniform regulations facilitate 
transportation by eliminating the necessity to comply with conflicting 
sets of regulations as hazardous materials move across jurisdictional 
boundaries. Further, as commenters also agree, nationally uniform 
regulations enhance transportation safety by reducing confusion and 
simplifying the task of compliance. ``Uniformity, clarity and 
consistency are essential when addressing the movement, loading, 
unloading, and storage of hazardous materials in intrastate and 
interstate commerce.'' (Dow) We agree. However, there is no 
transportation safety rationale for nationally uniform regulations 
applicable to fixed facility operations other than activities defined 
in this final rule as pre-transportation or transportation functions. 
The employees at a fixed facility do not cross jurisdictional lines and 
so are not faced with the possibility of complying with different sets 
of possibly conflicting regulatory requirements. Further, Congress 
recognized that non-transportation operations involving hazardous 
materials at fixed facilities need not be governed by one set of 
nationally uniform regulations in both the OSH Act and the various 
statutes that authorize EPA's programs by explicitly permitting non-
Federal entities to impose requirements for worker or environmental 
protection at fixed facilities that are more stringent than Federal 
requirements. As we stated in the NPRM, Congress expressly recognized 
that state and local governments have a legitimate role in the 
regulation of hazardous materials at fixed facilities, and this role 
should be accommodated to the extent possible within the context of a 
nationally uniform hazardous materials transportation safety regulatory 
program. Our definitions for pre-transportation and transportation 
functions, as proposed in the NPRM and adopted with modifications in 
this final rule, provide a set of nationally uniform regulations 
governing functions that affect the safe transportation of hazardous 
materials in commerce and governing the actual transportation in 
commerce of hazardous materials. At the same time, the definitions 
adopted in this final rule permit other Federal agencies, states, and 
local governments to exercise their legitimate regulatory roles at 
fixed facilities.
    A number of commenters assert that, in the NPRM, RSPA proposed to 
``withdraw'' from the regulation of loading, unloading, and storage 
incidental to movement in a way that is inconsistent with our 
Congressional mandate. `` * * * Congress has directed DOT to take a 
broad approach to the regulation of hazardous materials transportation. 
RSPA's proposal to adopt a narrow definition of `transportation in 
commerce' and withdraw from its regulation of loading, unloading, and, 
to a significant extent, incidental storage is inconsistent with its 
Congressional mandate.'' (Association of American Railroads) A careful 
reading of the NPRM indicates that this is not, in fact, the case.
    As we stated in the NPRM, the regulatory clarifications we proposed 
are based on long-standing administrative decisions and regulatory 
interpretations, which were cited in the NPRM (66 FR 32432-32436) and

[[Page 61916]]

included in the docket. Under the NPRM and this final rule, the HMR 
apply to the loading of packaged or containerized hazardous materials 
into transport vehicles or freight containers and the filling of bulk 
packagings, such as cargo tanks and rail tank cars, in the same manner 
that the HMR currently apply to such operations. Similarly, under the 
NPRM and this final rule, the HMR apply to incidental storage of 
hazardous materials in the same manner as currently. The only changes 
proposed in the NPRM to the current applicability of the HMR involve 
certain rail storage and unloading operations. Rail issues are 
discussed in more detail below.
    Loading incidental to movement. The NPRM proposed that, for 
purposes of applicability of the HMR, loading incidental to movement is 
loading associated with such movement. Thus, the NPRM proposed to 
define ``loading incidental to movement'' to mean loading of a 
hazardous material onto a transport vehicle, aircraft, or vessel or 
into a bulk packaging for purposes of transporting it when performed by 
a person employed by or under contract to a for-hire carrier. For 
private carriers, the NPRM proposed to define ``loading incidental to 
movement'' to mean loading of a hazardous material onto a transport 
vehicle, aircraft, or vessel or into a bulk packaging for purposes of 
transporting it when performed by the driver of the motor vehicle into 
which the hazardous material is being loaded immediately prior to 
movement in commerce of the hazardous material.
    Many commenters express concern about the proposed definition for 
``loading incidental to movement.'' Much of this concern relates to the 
way that the NPRM attempted to divide loading activities into pre-
transportation and transportation activities. Thus, one commenter 
suggests that ``[n]o other federal agency has similar rules governing 
the mechanics of loading * * * hazardous materials * * * For example, 
DOT regulates the blocking and bracing of packages in vehicles. If DOT 
walks away from the function of loading * * * by non-carrier personnel, 
no other federal agency has rules to fill the void on a safety concern 
so fundamental as blocking and bracing freight.'' (Institute of Makers 
of Explosives) As discussed under ``Pre-Transportation Functions'' 
above, blocking and bracing and segregation of hazardous materials in a 
transport vehicle or freight container are and will continue to be 
regulated functions under the HMR, irrespective of the entity that 
performs the function. This final rule modifies the proposed 
definitions for ``pre-transportation functions'' and ``loading 
incidental to movement'' to clarify this point.
    Commenters are also concerned that, under the NPRM proposal for 
defining ``loading incidental to movement,'' it appeared that the HMR 
would not apply to the loading of bulk packagings for transportation in 
commerce. Commenters appear to have misunderstood this aspect of the 
NPRM. Loading or, more accurately, filling of a bulk packaging, such as 
a cargo tank or rail tank car, for purposes of transporting it is now 
and will continue to be a regulated function under the HMR whether the 
function is performed by shipper or carrier personnel. To eliminate 
confusion on this point, this final rule clarifies that filling of a 
bulk packaging and securing its closures is a pre-transportation 
function subject to HMR requirements. The final rule also clarifies 
that for a bulk packaging, ``loading incidental to movement'' means 
filling of and securing the closures on a bulk packaging by carrier 
personnel or in the presence of carrier personnel for the purpose of 
transporting it. Thus, filling, or loading, of a bulk packaging for the 
purpose of transporting it is regulated under the HMR as a pre-
transportation function if a shipper performs such filling or as a 
transportation function if a carrier performs such filling. 
Irrespective of the entity performing the function, filling, or 
loading, of a bulk packaging is regulated under the HMR.
    It is important to note, however, that, even where the HMR specify 
requirements for loading a packaging or container, OSHA requirements 
may also apply. For example, the HMR specify filling limits for most 
hazmat packagings, including bulk packagings. Further, the HMR specify 
valving, piping, hose, and similar requirements as part of the 
specification packaging requirements for authorized transportation of 
hazardous materials. OSHA regulations cover operational procedures for 
loading operations with which a facility must comply and include 
requirements for facility equipment used for such loading operations. 
Persons who perform loading operations generally will have to comply 
with both the HMR and OSHA requirements. Similarly, EPA requirements 
for environmental protection that relate to loading operations--such as 
requirements for secondary containment or vapor recovery--may also 
apply.
    Unloading incidental to movement. The NPRM proposed that, for 
purposes of applicability of the HMR, unloading incidental to movement 
is unloading associated with such movement. Thus, the NPRM proposed to 
define ``unloading incidental to movement'' to mean unloading of a 
hazardous material from a transport vehicle, aircraft, or vessel or 
from a bulk packaging when performed by a person employed by or under 
contract to a for-hire carrier. For private carriers, the NPRM proposed 
to define ``unloading incidental to movement'' to mean unloading 
performed by the driver of the motor vehicle from which the hazardous 
material is being unloaded immediately after movement in commerce is 
completed. Under the proposed definition, hazardous materials unloading 
operations performed by consignees would not be subject to HMR 
requirements because they occur after movement of the hazardous 
materials in commerce is completed.
    The preamble to the NPRM noted that, for the most part, our 
proposed definition of unloading incidental to movement is consistent 
with current HMR requirements, letters of interpretation, and 
administrative decisions we have issued to clarify the applicability of 
the HMR to unloading operations (66 FR 32433). As the preamble 
discussed, the proposals in the NPRM applicable to rail tank car 
unloading operations represent a change from current practice and 
interpretation. Currently, the tank car unloading requirements in Part 
174 of the HMR apply to all unloading operations. However, we suggested 
in the preamble to the NPRM that rail tank car unloading operations 
performed by consignee personnel generally should be considered part of 
a manufacturing process rather than part of transportation.
    Most commenters disagree with our proposed definition. ``This is a 
significant change from current policy. No other federal agency has 
similar rules covering this issue and cannot fill this void.'' 
(National Association of Chemical Distributors) Other commenters assert 
that the NPRM represents an effort by RSPA to relinquish its regulatory 
authority. ``The Department of Transportation's proposal to relinquish 
its regulatory authority over `post-transportation' functions such as 
storage during movement and unloading yet retaining its regulatory 
authority over `pre-transportation' functions and `transportation in 
commerce' functions will jeopardize transportation safety as well as 
adversely impact the cost of hazardous materials transportation.'' (Air 
Products and Chemicals, Inc.) Other commenters express concern about 
the ``transfer'' of regulatory authority from DOT to OSHA or EPA. 
``This proposed rule (HM-223)

[[Page 61917]]

transfers some of the oversight responsibilities concerning the * * * 
unloading * * * of hazardous materials from the U.S. Department of 
Transportation * * * to other federal agencies, such as the 
Environmental Protection Agency * * * and the Occupational Safety and 
Health Administration * * *. [We] are concerned that this transfer of 
authority and jurisdiction * * * could result in regulatory gaps and 
confusion about which agency is responsible for enforcing these 
regulations. Also in question is the ability of other federal agencies 
to assume additional oversight responsibilities and whether these 
agencies would have the personnel, resources, or expertise to 
effectively monitor compliance with regulations * * *'' (American Road 
and Transportation Builders Association) Similarly, ``[We are] 
specifically concerned about the lack of expertise that personnel from 
[other Federal agencies] have in rail tank car design, cargo tank 
design, and the operational parameters associated with bulk container * 
* * unloading. [We are] not convinced that, if RSPA relinquishes its 
regulatory authority over hazardous materials * * * unloading 
operations, other federal and state agencies will be able to 
effectively exercise the necessary safety oversight of these very 
specific areas of transportation.'' (National Transportation Safety 
Board)
    The NPRM proposals concerning the definition of ``unloading 
incidental to movement'' do not represent an effort on our part to 
relinquish or abdicate our authority or transfer our authority to other 
Federal agencies. As we stated in the NPRM, generally our proposals 
concerning unloading incidental to movement are consistent with current 
HMR requirements, letters of interpretation and administrative 
decisions we have issued to clarify the applicability of the HMR to 
unloading operations from transport vehicles and bulk packagings other 
than rail tank cars. Further, except for rail tank car unloading, we 
have never promulgated regulations applicable to ``post transportation 
functions'' at consignee facilities. The HMR are promulgated under the 
mandate in 49 U.S.C. 5103(b) that the Secretary ``prescribe regulations 
for the safe transportation of hazardous material in intrastate, 
interstate, and foreign commerce.'' (Emphasis added.) Section 
5103(b)(1)(B) provides that the HMR ``shall govern safety aspects of 
the transportation of hazardous material the Secretary considers 
appropriate.'' (Emphasis added.)
    Congress recognized that post-transportation activities should be 
regulated by Federal agencies, such as OSHA, EPA, and ATF, that 
generally have authority to regulate non-transportation activities at 
fixed facilities. For example, Congress directed that OSHA, and not 
DOT, issue regulations to require labels and placards affixed to 
hazardous materials packages in accordance with the HMR to remain on 
the packages after delivery until they are emptied. (See section 29, 
Public law 101-615, 1990.)
    Commenters are correct that the NPRM proposals applicable to 
unloading of rail tank cars are a change from current practice and 
interpretation. As stated in the NPRM, the proposals applicable to rail 
tank car unloading operations stem from changes in the way rail tank 
cars are used in manufacturing processes and are consistent with RSPA's 
current regulation of cargo tank unloading operations.
    Despite commenters' opposition, we continue to believe that the 
unloading of a rail tank car directly into a manufacturing process is 
more properly considered part of a manufacturing operation, not a 
transportation operation. The rail tank car has been delivered to the 
consignee by the rail carrier; in many cases, the rail tank car sits 
for several days, weeks, or even months prior to commencement of the 
unloading operation. Commenters assert that, because the vessel being 
unloaded is a DOT or UN specification packaging, all operations related 
to that vessel should be subject to regulation under the HMR. This 
position is difficult to support. DOT or UN specification packagings 
are used for many purposes besides transportation. For example, 
firefighters' equipment includes DOT specification cylinders as part of 
self-contained breathing apparatus. The DOT cylinder itself remains 
subject to DOT requirements for repair and maintenance. However, no one 
would assert that DOT should develop regulations for firefighters' use 
of self-contained breathing apparatus merely because that apparatus 
incorporates a DOT specification packaging. Similarly, it is difficult 
to argue that manufacturing operations should be subject to regulation 
under the HMR merely because such operations may incorporate a DOT or 
UN specification packaging as part of the process. OSHA is the Federal 
agency charged by the Congress with workplace safety oversight. OSHA 
has detailed requirements for process safety management that apply to 
all aspects of the manufacturing process, including rail tank car 
unloading into a process. The OSHA process safety management standard 
is considerably more comprehensive than the current regulations in 
Sec.  174.67 of the HMR that apply to rail tank car unloading 
operations. Overlaying the requirements in Sec.  174.67 with the OSHA 
process safety management standard creates a duplicative and redundant 
regulatory regime that is confusing, potentially costly, and 
unnecessary.
    Other commenters assert that the applicability of the HMR should be 
determined based on the function, not on the status of the person 
performing the function. ``[A]n individual's employment or occupation 
should [not] dictate whether the HMR is applicable to the functions 
being performed. Each entity performing these functions should be 
subject to the same operational requirements, including training. Thus, 
the HMR should be applicable to these functions regardless of the 
status of the person who is performing the action.'' (American 
Chemistry Council) Similarly, a commenter suggests that limiting the 
applicability of the HMR to loading and unloading activities performed 
by a carrier ``has no rational basis in fact. From a safety 
perspective, there is no difference between an unloading activity 
performed by a carrier and that same activity performed by the 
consignee's employee. * * * If RSPA is concerned about unloading that 
occurs long after the hazardous materials have been delivered to the 
consignee, then RSPA should address that narrow issue, rather than 
create an artificial jurisdiction test that is dependent upon the 
identity of whom is conducting the regulated activity.'' (American 
Trucking Associations)
    We agree with commenters who suggest that the function being 
performed should dictate whether the HMR should apply to that function. 
As should be apparent by the discussion of this issue in the NPRM and 
this final rule, our determination as to whether the HMR should apply 
to the unloading of rail tank cars into manufacturing processes is 
based on our analysis of the function being performed. Unloading of a 
bulk packaging directly into a manufacturing process is not a 
transportation function; such unloading is a manufacturing function and 
should be treated as such for purposes of applicability of the HMR. 
Indeed, unloading of a bulk packaging after a carrier has delivered it 
to a consignee, detached its motive power, and departed the consignee's 
premises should not be regulated differently from unloading of a non-
bulk packaging after a carrier has delivered it to a consignee and 
departed the consignee's premises.

[[Page 61918]]

No commenter suggests that the act of emptying a non-bulk packaging 
when performed by a consignee after delivery should be regulated under 
the HMR. Such action clearly occurs after transportation is completed. 
The same is true of the act of emptying a bulk packaging after a 
carrier has delivered it to the consignee and departed the consignee's 
premises.
    Commenters suggest that the proposed definition for ``unloading 
incidental to movement'' could result in confusion and ambiguity. ``In 
simple situations where only one person is involved, the `who is 
unloading' test may work quite well. Unfortunately, the reality of 
handling hazardous liquids is that both the consignee and the carrier 
are involved in the unloading because both parties have a strong 
interest in the safe handling of the materials. Even where the carrier 
is physically initiating and monitoring the unloading, the consignee is 
likely to be inspecting the receiving tanks, assuring scrubbers are 
functioning properly, monitoring pressures, checking for leaks and the 
like. * * * With this sharing of responsibilities, who is performing 
the unloading for the purposes of the Proposed Rule? Even if the 
carrier is primarily responsible for the unloading, the consignee 
arguably is performing unloading activities as well. This creates an 
ambiguity with respect to whether a particular unloading scenario is or 
is not transportation in commerce.'' (Unimin Corporation) Another 
commenter has a similar concern. ``If more than one person is involved 
in the loading or unloading of hazardous materials, a determination by 
U.S. DOT should be made about who is primarily responsible for the 
loading or unloading, which would, therefore, determine whether that 
particular situation is or is not transportation in commerce as defined 
by the proposed rule. HM-223 also does not address which standard 
applies to loading or unloading operations that are done jointly by 
carrier and facility personnel. Multiple agencies enforcing different 
aspects of the loading, unloading and storage of hazardous materials 
could result in many differing interpretations of the same situation.'' 
(American Road and Transportation Builders Association)
    We agree that the proposed definition could create some confusion 
when both carrier and consignee personnel are present and participating 
in an unloading operation. In this final rule, therefore, we are 
modifying the definition for ``unloading incidental to movement'' to 
specify that if carrier personnel are present during the unloading of 
packaged hazardous materials from a transport vehicle or the unloading 
of a bulk package, such as a cargo tank or a rail tank car, into a 
storage tank or manufacturing process, then the unloading operation is 
considered to be incidental to the movement of the hazardous material 
and is subject to regulation under the HMR. This approach is consistent 
with our long-standing policy concerning hazardous materials incident 
reporting. Under Sec. Sec.  171.15 and 171.16 of the HMR, carriers are 
required to report incidents that occur during the course of 
transportation. A carrier must report a loading or unloading incident 
in conformance with Sec. Sec.  171.15 and 171.16 if carrier personnel 
are present at the time the incident occurs, even if carrier personnel 
are not participating in the loading or unloading operation. This is 
also consistent with current HMR requirements concerning unloading of 
cargo tanks in Sec.  177.834(i)(2).
    Note that, as with loading operations, even where the HMR specify 
requirements for unloading a packaging or container, OSHA requirements 
may also apply. For example, the HMR specify valving, piping, hose, and 
similar requirements as part of the specification packaging 
requirements for authorized transportation of hazardous materials and 
include periodic testing and maintenance requirements. In addition, for 
unloading operations involving liquefied compressed gases in cargo 
tanks, the HMR require an operator to develop and maintain operating 
procedures for emergency discharge control equipment and emergency 
shutdown of the unloading operation. OSHA regulations cover operational 
procedures for unloading operations with which a facility must comply 
and include requirements for facility equipment used for such unloading 
operations. Persons who perform unloading operations generally will 
have to comply with both the HMR and OSHA requirements. Similarly, EPA 
requirements for environmental protection that relate to unloading 
operations--such as requirements for secondary containment or vapor 
recovery--may also apply.
    A commenter suggests that if the HMR are not applicable ``to the 
unloading of tank cars at a consignee facility, * * * other agencies 
are going to get involved in the construction, test, inspection, 
marking, labeling, securement rules and regulations. How does RSPA plan 
to enforce the HMR in part, if not in whole, on an operation that is 
not subject to the HMR?'' (Farmland) This commenter appears to 
misunderstand the implications of the NPRM proposal concerning rail 
tank car unloading. The NPRM proposed to exclude from regulation under 
the HMR rail tank car unloading operations performed by consignee 
personnel after delivery of the rail tank car to the consignee's 
premises and departure of the rail carrier. However, other aspects of 
the HMR continue to apply to a rail tank car. For example, HMR 
requirements applicable to rail tank car construction, inspection, and 
maintenance continue to apply to a rail tank car even if the unloading 
operation involving such tank car is not subject to the HMR and, 
indeed, even if the rail tank car does not contain a hazardous 
material. Similarly, HMR requirements concerning rail tank car marking 
continue to apply to a rail tank car.
    In addition, as proposed in the NPRM, requirements related to the 
protection of train and engine crews operating within a shipper or 
consignee facility, such as posting warning signs, setting hand brakes, 
and blocking the wheels of hazardous materials tank cars placed for 
unloading would continue to apply, not because the tank car is being 
unloaded incidental to movement but because unloading of a tank car has 
the potential to affect the safety of rail carrier personnel. These 
requirements apply whether or not the carrier is present during the 
unloading operation.
    In summary, the fact that a non-transportation function involving a 
rail tank car is not regulated under the HMR does not negate the 
design, construction, and maintenance standards for the rail tank car, 
nor does it negate HMR requirements governing pre-transportation and 
transportation functions applicable to the rail tank car. Further, 
design, construction, and maintenance regulations may be enforced at 
any time, irrespective of whether the tank car is involved in the 
transportation of hazardous materials, so long as the tank car is 
marked to certify that it has been constructed and maintained in 
accordance with HMR requirements.
    Commenters representing intermodal transfer facilities express 
concern about the NPRM proposals for consignee unloading of rail tank 
cars. As explained by commenters, ``[m]anufacturers of hazardous and 
non-hazardous commodities contract with [intermodal transfer 
facilities] to terminalize their products in rail tank cars and, under 
their direction, transload said product into cargo tanks then deliver 
to the end user, the consignee. [The intermodal transfer facility] at 
no time takes title to any of the products that [it] handle[s], this is 
clearly stated in * * * terminal contracts. [The intermodal transfer

[[Page 61919]]

facility] appears as the consignee on the waybill only for the purpose 
of communicating to the carrier (the railroad) that the rail tank car 
is to arrive at one of our terminals.'' (ACCU Chem Conversion, Inc.) 
Another commenter states that the NPRM proposals ``could spell the 
death knell for intermodal facilities where hazardous materials are 
transferred in bulk because states and localities would be free to 
impose unreasonable requirements making the operation of transfer 
facilities impractical.'' (Association of American Railroads) These 
commenters suggest that intermodal transfer operations should be 
considered transportation functions and, thus, urge us to retain the 
rail tank car unloading requirements currently in Sec.  174.67 of the 
HMR.
    We agree that a transloading operation at an intermodal transfer 
facility--that is, the act of directly transferring hazardous materials 
from one bulk packaging to another--is a function that should be 
regulated under the HMR. Transloading is a pre-transportation function 
in that it involves selection, preparation, and closing of packagings 
for the transportation of hazardous materials. The transfer of 
hazardous materials from one bulk packaging into another is a filling, 
or loading, operation as defined in this final rule. During 
transloading, the filling, or loading, of one bulk packaging occurs 
simultaneously with the emptying, or unloading, of a second bulk 
packaging. Further, a transloading operation at an intermodal transfer 
facility is a continuation of the movement of a hazardous material 
begun when a carrier takes possession of the hazardous material for the 
purpose of transporting it. Therefore, in this final rule, we are 
revising the definitions proposed in the NPRM for ``pre-transportation 
functions'' and ``loading incidental to movement'' and ``unloading 
incidental to movement'' to include transloading operations. We are 
also defining a new term--``transloading''--to mean the transfer of a 
hazardous material from one HMR-authorized bulk packaging to another 
for purposes of continuing the movement of the hazardous material in 
commerce.
    Further, we agree that the rail tank car unloading regulations 
currently in Sec.  174.67 of the HMR should be retained and applied to 
transloading of a hazardous material from a rail tank car to a cargo 
tank or other bulk hazardous materials packaging. Under Docket HM-212, 
we had proposed to revise the rail tank car unloading requirements to 
clarify and update them and account for technological advances. On 
March 27, 2000, we published a notice withdrawing the HM-212 NPRM. We 
withdrew the proposals in the HM-212 NPRM related to cargo tank 
unloading because we addressed cargo tank unloading in a final rule 
issued under Docket HM-225A (64 FR 28030). We announced that we would 
address the issues raised in the HM-212 NPRM concerning the proposed 
rewrite of rail tank car unloading requirements in the HM-223 
rulemaking. Indeed, a number of commenters to the HM-212 NPRM suggested 
that it should be broadened to address issues related to the definition 
of the term ``in transportation'' and clarification of the respective 
roles of OSHA and RSPA with respect to the transfer of hazardous 
materials. In this final rule, we are incorporating revisions proposed 
in HM-212. See the discussion below for specific revisions to this 
section.
    Note that, for purposes of the HMR, ``transloading'' does not 
include operations that involve the transfer of a hazardous material 
from one packaging to another for purposes of mixing, blending, or 
otherwise altering the hazardous materials. Further, ``transloading'' 
does not include movement of product to or from a bulk storage tank. 
For purposes of the HMR, ``transloading'' is a pure transfer from one 
bulk packaging to another at an intermodal transfer facility; 
operations conducted at a shipper facility before a hazardous material 
is offered for transportation or at a consignee facility after 
transportation is complete are not ``transloading'' and are not subject 
to regulation under the HMR. Note also that, while the HMR apply to 
transloading operations at fixed facilities, regulations of other 
Federal or non-Federal entities may also apply to such facilities (see 
discussion below).
    Storage incidental to movement. In the NPRM, we proposed to define 
``storage incidental to movement'' to mean temporary storage of a 
transport vehicle, freight container, or package containing a hazardous 
material between the time that a carrier takes physical possession of 
the hazardous material to transport it in commerce until the package 
containing the hazardous material is delivered to its destination, as 
indicated on shipping documentation. As proposed in the NPRM, storage 
incidental to movement would include temporary storage at a carrier 
facility where the package containing the hazardous material is to be 
transferred from one transport vehicle to another or from one 
transportation mode to another. Storage incidental to movement would 
also include the period during which a transport vehicle carrying 
hazardous materials is parked temporarily at an en route point such as 
a safe haven, rail yard, marine terminal, or at a truck stop, motel, 
restaurant, rest area, or similar location. As proposed in the NPRM and 
consistent with current policy, neither storage of a hazardous material 
at an offeror facility prior to its acceptance by a carrier nor storage 
of a hazardous material at a consignee facility after it has been 
delivered by a carrier would be subject to the HMR.
    Some commenters support the NPRM proposal for defining storage 
incidental to movement. ``Storage of a hazardous material at an offeror 
facility prior to its acceptance by a carrier or storage of a hazardous 
material at a consignee facility after a carrier has delivered it 
should not be subject to the HMR. These areas should be under the 
jurisdiction of other agencies, such as OSHA and the local fire and 
building authorities.'' (Monsanto) Similarly, some commenters agree 
that ``when a hazardous material is transported to and held at a 
storage facility at the request of the consignee, as indicated on the 
shipping papers, transportation ends when the carrier delivers it to 
the storage facility and the storage facility signs for the material.'' 
(International Warehouse Logistics Association)
    Other commenters, however, oppose the NPRM proposals applicable to 
storage incidental to movement. As discussed above, a number of 
commenters suggest that the HMR should apply from the time that a 
hazardous material is packaged until the time that the package is 
delivered to the consignee; for bulk packagings, these commenters 
suggest that the HMR should apply until the bulk package is emptied at 
the consignee facility. These commenters assert that broad application 
of the HMR to storage at both consignee and consignor facilities 
assures uniform, national regulation of hazardous materials in 
commerce. Some commenters also assert that the NPRM proposals 
applicable to storage of hazardous materials represent an effort by 
RSPA to ``relinquish'' its authority to regulate ``post-
transportation'' activities involving hazardous materials.
    We disagree. As we stated in the NPRM, the proposals applicable to 
storage of hazardous materials during transportation are generally 
consistent with previous administrative determinations and letters of 
interpretation concerning the applicability of the HMR to hazardous 
materials stored incidental to movement (66 FR 32434-32435). The 
proposals do not represent an effort on our part to relinquish 
previously exercised regulatory authority. Rather, the

[[Page 61920]]

proposals clarify and make explicit in the HMR long-standing 
administrative and policy determinations concerning the applicability 
of the HMR to hazardous materials storage.
    One commenter notes that the proposed definition of ``storage 
incidental to movement'' appears to include only storage of a material 
that is in the custody and control of a carrier from the time that the 
carrier picks up the shipment until it is delivered to the destination 
indicated on shipping documentation. ``RSPA should * * * move or revise 
the section on `Storage incidental to movement of hazardous materials' 
so that it covers storage by any person incidental to movement.'' 
(Firestone) We agree. There are situations during transportation when a 
shipment is out of the direct possession and control of the carrier 
while it is being stored incidental to its movement in commerce. In 
this final rule, we modified the definition of ``storage incidental to 
movement'' to include storage by any person between the time that a 
carrier takes physical possession of a hazardous material for the 
purpose of transporting it until the package containing the hazardous 
material is delivered to the destination indicated on shipping papers 
or other documentation. Note that, as stated in the NPRM, for a 
hazardous material that is consigned by an offeror to a storage 
facility rather than an end user, the material is no longer in 
transportation in commerce once it has been delivered to the storage 
facility.
    The temporary holding of a package containing hazardous materials 
at a motor carrier terminal for consolidation with other packages is 
clearly within the meaning of storage incidental to movement of a 
hazardous material in commerce as defined in this final rule. Further, 
for through shipments, storage incidental to movement in commerce also 
includes the temporary holding of a package, freight container, rail 
car, or other instrument of containment of a hazardous material at a 
marine terminal pending the arrival of a vessel onto which it will be 
loaded or prior to its inland movement by rail or highway. Similarly, 
the holding of a freight container or trailer at a carrier's intermodal 
container transfer facility is within the meaning of storage incidental 
to movement of a hazardous material in commerce as defined in this 
final rule. Storage incidental to movement of hazardous materials in 
commerce is subject to requirements in the HMR.
    The NPRM stated that storage of a hazardous material at a transfer 
facility where a hazardous material is repackaged prior to re-shipment 
is not storage incidental to movement as we proposed to define it. 
Consistent with previous administrative determinations and 
interpretations, as cited in the NPRM (66 FR 32432), we proposed that 
movement of a hazardous material would end at the facility to which the 
hazardous material was consigned for repackaging. A number of 
commenters express concern about this aspect of our proposed definition 
for ``storage incidental to movement.'' ``The preamble to the proposed 
rule appears to contemplate that the Hazardous Materials Regulations 
would not apply to the storage of hazardous materials `intended' for 
repackaging at transfer facilities. Storage activities at transfer 
facilities, which are incidental to transportation, should not be 
exempt from RSPA regulation. To do otherwise will at best create 
confusion as to whether RSPA or Environmental Protection Agency 
regulations apply, and at worst a dangerous regulatory void.'' 
(National Private Truck Council) Another commenter notes that ``[T]here 
would be nothing materially different between the packages in storage 
that are destined for repackaging and those that are not. Storage is 
storage is storage. Second, it flies in the face of federal law 
intended to promote intermodal movement in order `to achieve national 
goals for improved air quality, energy conservation [and] international 
competitiveness.' Third, it is contrary to established precedent. 
Intermodal movements of hazardous materials are critical to commerce. 
Previously, RSPA recognized this fact in preemption proceedings.'' 
(Institute of Makers of Explosives) Commenters ask that we clarify what 
we mean by the term ``repackaging'' and explain why storage of 
hazardous materials prior to repackaging is not included in our 
definition of ``storage incidental to movement.'' ``[We] recommend a 
detailed definition of the term `repackaging' in order to reduce 
uncertainty about RSPA's intent concerning this activity. * * * Is it 
RSPA's intent to assert, as it has in the past, that repackaging is a 
``covered subject'' under [Federal hazmat law] and that state 
regulations pertaining to repackaging that are not substantively the 
same as corresponding federal regulations are subject to preemption?'' 
(Northeast Waste Management Officials Association)
    As the commenters suggest, the act of repackaging a hazardous 
material for transportation is a covered subject under Federal hazmat 
law. 49 U.S.C. 5125(b). Repackaging is a pre-transportation function as 
that term is defined in this final rule. Persons who repackage a 
hazardous material must comply with all applicable HMR requirements 
concerning the selection and preparation of a hazardous materials 
package. Because the act of repackaging a hazardous material is a 
covered subject under Federal hazmat law, non-federal requirements that 
are not substantively the same as the HMR requirements applicable to 
repackaging are preempted.
    The fact that repackaging is a regulated activity under the HMR 
does not mean that every activity associated with repackaging is also 
regulated under the HMR. For example, transportation of a hazardous 
material consigned to a facility for repackaging, as indicated on 
shipping papers or other documentation, ends when the hazardous 
material is delivered to the facility. Subsequent storage of the 
hazardous material prior to its repackaging is not storage incidental 
to movement as that term is defined in this final rule and is not 
regulated under the HMR. Similarly, storage of the hazardous material 
after it has been repackaged but prior to the time a carrier accepts it 
for transportation is not storage incidental to movement as that term 
is defined in this NPRM and is not regulated under the HMR. Moreover, 
the facility at which repackaging occurs may be subject to OSHA and/or 
EPA regulations governing worker safety and environmental protection 
and to non-federal regulations applicable to community right-to-know, 
fire protection, worker protection, building codes, zoning 
requirements, and the like.
    Many commenters address the NPRM proposals concerning storage of 
rail cars on leased track. The NPRM proposed two alternatives for 
applying the HMR to such storage. 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 destination on 
shipping documentation. In such situations, the rail carrier would be 
viewed as performing a warehousing function on behalf of the consignee, 
not a transportation function. 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.

[[Page 61921]]

    Commenters who support the first alternative agree that ``rail cars 
stored on leased track should not be considered ``storage incidental to 
movement'' in commerce subject to applicable HMR requirements. Rail 
cars stored on leased track * * * would then be subject to local 
regulations, including Federal Risk Management Program (RMP) * * * 
regulations. * * * This information would assist the local emergency 
response agencies [to] assess the threat and security of leased 
tracking.'' (Contra Costa Health Services)
    Commenters who support the second alternative assert that 
``[e]stablishment of a system where rail cars on the general railroad 
system do not have to comply with RSPA's regulations addressing 
shipping papers, securement, and placarding would undermine safety. * * 
* Furthermore, rail cars on leased track are not always stationary. 
They are moved. Surely the public interest requires RSPA to apply its 
hazardous materials regulations to rail cars containing hazardous 
materials moving on railroad tracks.'' (Association of American 
Railroads) Commenters also state that ``[t]here could be severe 
consequences to railroads and their customers were RSPA to conclude 
that hazardous materials cars on leased track were outside the scope of 
RSPA's regulations. States and localities could impose unreasonable 
secondary containment and other requirements making the placement of 
tank cars on leased track infeasible. There may be inadequate capacity 
to handle these cars in any other manner, thus dramatically affecting 
the ability of railroads to transport these cars to destination and the 
ability of the railroads' customers to continue their operations.'' 
(Association of American Railroads) Commenters also suggest that 
``storage of rail cars on leased track should be considered 
``incidental'' because the cars have not been delivered to the ultimate 
consignee.'' (Farmland) As well, commenters state that rail card 
``stored on leased track should be considered in transportation. * * * 
Interim storage locations are not the ultimate destination of the 
shipments, and the railroad maintains effective custody and control of 
the shipments.'' (Monsanto)
    After consideration of the comments received on this issue and in 
consultation with the Federal Railroad Administration (FRA), we 
conclude that rail cars stored temporarily on leased track, except for 
leased track that is outside the control and responsibility of the rail 
carrier and used exclusively for the movement of cars shipped to or 
from the lessee, is storage incidental to movement and subject to 
regulation under the HMR. This determination is consistent with 
previously articulated interpretations (as discussed in the NPRM, 66 FR 
32435), with current FRA policies, and with the definitions adopted in 
this final rule. See specifically the discussion of the ``general 
railroad system of transportation'' under the section entitled ``THE 
EXTENT AND EXERCISE OF FRA'S SAFETY JURISDICTION'' in Appendix A to 49 
CFR Part 209.
    The concepts embodied by the term ``leased track'' are often taken 
out of context. As currently set forth in Sec.  171.8 of the HMR, 
``private track or private siding'' is defined to mean:

    Track located outside of a carrier's right-of-way, yard, or 
terminals where the carrier does not own the rails, ties, roadbed, 
or right-of-way and includes track or a portion of track which is 
devoted to the purpose of its user either by lease or written 
agreement, in which case the lease or written agreement is 
considered equivalent to ownership.

    The key term in the definition is ``Devoted to the purpose of its 
user,'' a phrase equivalent to the idea of ``exclusive use'' or 
``ownership.'' Either track is used by a railroad, or it is devoted to 
the exclusive use of another entity. The key to defining ``private 
track'' is not the existence of a lease or even a deed of title, but 
the devotion of that track to the sole purpose of some person other 
than the railroad. Track may be leased for many purposes for the 
convenience of the lessee. Many of these leases do not exclude the 
railroad from using the track for its transportation purposes in 
addition to the lessee's purposes. Where the railroad has not ceded its 
care, custody, and control of the track to the lessee, such track 
remains railroad track and not private track. Where the lessee (in a 
transportation context, usually a shipper or receiver of rail cars) 
assumes the care, custody, and control of the track, the track is 
``devoted'' to the purposes of its user and is private track. Rail cars 
containing hazardous materials that are stored on private track are not 
stored incidental to movement and are not subject to the HMR; rail cars 
containing hazardous materials that are stored on railroad track are 
stored incidental to movement and are subject to the HMR. As explained 
below, to avoid future misinterpretation, in this final rule we are 
amending the definition in Sec.  171.8 of ``private track or private 
siding.''
    As noted above, to conclude that a rail car is stored incidental to 
movement, we must determine whether the railroad carrier actually 
exercises ownership or control over the cars and trackage; the facial 
legal status of the cars and trackage, as expressed in a lease or 
written agreement between the parties, is not determinative. Private 
track may be located directly adjacent to a shipper or consignee 
facility or within a facility some distance from either the shipper or 
ultimate consignee. The lessee may have exclusive use of the leased 
track, or the track also may be used for movement of rail cars other 
than those of the shipper or consignee. Notwithstanding the terms of 
any written agreement between the lessee and the rail carrier, if the 
general system railroad controls the track, then the track is not 
``private'' track for purposes of the HMR.
    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 track that is leased for 
business purposes not relevant to the safety of the cars or the 
products they contain. These interim storage locations are not the 
ultimate destination of the shipments, and, in almost all such cases, 
the railroad maintains effective custody and control of them, which in 
this final rule is the primary consideration for determining the 
applicability of the HMR to transportation functions. However, the fact 
that a hazardous material is in a tank car does not necessarily mean 
that a railroad is responsible for it. If an entity elects to 
accumulate hundreds of cars of liquefied petroleum gas or anhydrous 
ammonia on its own property in order to have supplies readily available 
when needed, this business decision removes the car from transportation 
for purposes of the HMR.
    Under the Federal Railroad Safety Act (FRSA) and other rail safety 
laws, FRA has treated leased track as being outside the general 
railroad system and, sthus, 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. Regardless of the terms of a lease or other 
written agreement, cars on railroad tracks in railroad yards or sidings 
distant from the consignee are still on the general railroad system and 
are ordinarily within the care, custody, and control of the railroad. 
Even if a shipper or consignee leases such track,

[[Page 61922]]

it is rarely for the exclusive use of the shipper's or consignee's 
cars, and, even if so restricted, the track is not ordinarily in any 
practical sense controlled by the distant shipper or consignee. 
Further, the risks associated with rail transportation of hazardous 
materials exist whenever a rail car loaded with hazardous materials is 
on the general railroad system. However, where cars are stored on 
private track--that is, on track the use of which by actual practice is 
restricted to movements of the lessee's cars and over which the 
railroad exerts no control and has no responsibility for the cars on 
that trackage--custody and control of the rail cars shifts to the 
lessee, and the storage is not subject to the HMR.
    FRA's discussion of plant railroad trackage in Appendix A to 49 CFR 
part 209 is in accord with the definition in Sec.  171.8 of the HMR of 
``private track or private siding'' as modified in this final rule. In 
this final rule, we are also modifying the definitions proposed in the 
NPRM to clarify that storage of rail cars containing hazardous 
materials is storage incidental to movement and subject to regulation 
under the HMR, except for storage of rail cars on private track. Note 
that rail cars containing hazardous materials that are stored 
temporarily on railroad track that does not meet the definition of 
``private track or siding'' are subject to all applicable HMR 
requirements during such storage. For example, rail cars must at all 
times be accompanied by appropriate shipping documentation, including 
emergency response information and an emergency response telephone 
number in accordance with Subparts C and G of Part 172. Further, 
placards required by Subpart F of Part 172 must remain on the rail cars 
throughout the time they are stored on public track. In addition, tank 
cars stored on railroad track that does not meet the revised definition 
of ``private track or siding'' are subject to the requirements for 
security plans in Subpart I of Part 172. The security plan must include 
an assessment of possible transportation security risks and appropriate 
measures to address the assessed risks. Specific measures put into 
place by the plan may vary commensurate with the level of threat at a 
particular time. At a minimum, a security plan must include elements 
related to personnel security, unauthorized access, and en route 
security.
    As we noted in the NPRM, continuing the current policy that rail 
cars stored on railroad track are stored incidental to movement may 
necessitate separate rulemaking to address related safety and emergency 
response issues. For example, we are considering whether the Sec.  
174.14 requirements concerning expedited movement should apply to such 
incidental storage. Further, we are considering 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 to plan for and respond to incidents involving 
such rail cars.
    Several commenters asked us to clarify the applicability of the HMR 
to the storage of hazardous wastes subject to Resource Conservation and 
Recovery Act (RCRA) requirements. ``Under the Resource Conservation and 
Recovery Act (RCRA), EPA storage requirements do not kick in for up to 
ten days if hazardous waste is packaged according to the HMR. In 
adopting the so-called `ten-day' rule, `EPA believe[d] that 
transporters who hold hazardous waste for a short period of time in the 
course of transportation should not be considered to be storing 
hazardous wastes and should not be required to obtain an RCRA permit or 
[to] comply[] with the substantive requirements for storage for the 
holding of wastes which is incidental to normal transportation 
practices.' '' (Institute of Makers of Explosives) Commenters are 
concerned as to ``how the proposed rule will apply to RCRA 10-day 
transfer facilities where hazardous wastes are temporarily stored en 
route to their destination. EPA allows transporters to store hazardous 
wastes for up to 10 days at transfer facilities without the need to 
obtain RCRA permits. These hazardous wastes are considered to be in 
transit from a customer to a [treatment, storage, or disposal (TSD)] 
facility. We assume that DOT's basic interpretation that a hazardous 
material is in transportation until it is `delivered to its destination 
as indicated on the shipping paper' means that hazardous wastes held at 
a 10-day transfer facility are in `storage incident to transportation,' 
provided the shipping paper indicates that a TSD facility is the 
wastes' destination.'' (Environmental Technology Council) Commenters 
are also concerned that the proposed definition for ``storage 
incidental to movement'' in the NPRM is inconsistent with current 
policy and practice. In accordance with EPA regulations, the ten-day 
storage provision applies to facilities at which hazardous wastes may 
be repackaged during the ten-day storage period. The NPRM discussion of 
issues related to ``storage incidental to movement'' indicated that 
storage of a hazardous material at a carrier facility where a hazardous 
material is repackaged prior to reshipment is not storage incidental to 
transportation as we proposed to define it.
    The EPA regulations addressing the transportation of hazardous 
wastes include a provision addressing storage at hazardous waste 
``transfer facilities.'' See 40 CFR 263.12. EPA regulations define a 
``transfer facility'' to mean a ``transportation related facility * * * 
where shipments of hazardous waste are held during the normal course of 
transportation.'' See 40 CFR 260.10. These facilities normally conduct 
transfers of waste containers between transport vehicles and/or modes 
of transportation, and the transfer activities conducted there may 
include activities which today's rule describes as consolidation of 
packages, intermodal container transfers, through shipments, or 
repackaging. These are activities that are common to hazardous waste 
transfer facilities, and thus there is considerable similarity or 
overlap between the activities that occur at RCRA transfer facilities 
and the activities discussed in today's rule as storage incidental to 
movement.
    The substantive EPA regulation addressing hazardous waste transfer 
facilities states that a transporter may store hazardous wastes at a 
transfer facility without a RCRA storage permit for up to 10 days, 
provided that the waste is stored in DOT approved packages. 40 CFR 
263.12. This provision is intended only to provide transporters who 
store hazardous wastes in the normal course of transportation at 
transfer facilities with an exemption from the requirement to obtain a 
RCRA storage permit for their temporary storage activities, and to 
exempt them from the various substantive requirements that would 
otherwise apply to RCRA-permitted treatment, storage, or disposal 
facilities under 40 CFR part 264 or 265.
    A transfer facility under RCRA regulations is strictly an 
intermediate, temporary storage facility operated by a transporter. 
Under EPA policies, a RCRA transfer facility cannot be the destination 
facility named on the manifest for the receipt and management of the 
waste. Rather, the transfer facility storage and transfer activities 
occur while the hazardous waste shipment is considered to be under the 
custody and control of one of the hazardous waste transporters 
identified on the manifest. The manifest shows any changes of custody 
among transporter companies, but it does not record waste receipts and 
transfers at transfer facilities. As long as the transportation-related 
facility meets the criteria established by EPA regulation

[[Page 61923]]

for ``transfer facilities'' (i.e., storage in the normal course of 
transportation, storage in DOT approved packages, and storage not 
exceeding 10 days), then the storage and related transfer activities 
are allowed under RCRA regulations, and the transfer facility qualifies 
for the exemption from RCRA permitting.
    The transfer facility permitting exemption described in EPA 
regulations is available to RCRA transfer facilities regardless of 
whether they conduct through-shipment transfers, intermodal container 
transfers, consolidation activities, or repackaging activities. Nothing 
in today's rule discussing storage of hazardous materials at transfer 
facilities and repackaging activities is intended to affect in any way 
whether a hazardous waste transfer facility is eligible for the 
permitting exemption for 10-day storage at RCRA transfer facilities 
regulated under 40 CFR 263.12.
    Moreover, since a RCRA transfer facility cannot be the destination 
facility on the hazardous waste manifest, the discussion in today's 
rule--indicating that transportation under the HMR ends upon delivery 
of hazardous materials to a transfer facility to which materials have 
been consigned for repackaging--is simply not applicable to RCRA 
transfer facilities. This rule's policy on consignment of materials to 
a transfer facility is limited to those instances where the consignment 
to the facility for repackaging is indicated specifically on the 
shipping paper or other documentation, i.e., where the facility that 
will engage in repackaging is shown by the shipping paper to be the 
destination for that movement. A RCRA transfer facility conducting 
repackaging activities for hazardous waste shipments will not appear as 
the destination to which a hazardous waste shipment is being consigned. 
Therefore, our interpretation addressing consignments for repackaging 
is not applicable to a RCRA transfer facility. Instead, the more 
general policy on storage incidental to movement under the HMR applies 
continuously to the holding of hazardous wastes at RCRA transfer 
facilities. In other words, for the entire period of time that 
hazardous wastes are transported to, arrive at, and are held by a RCRA 
transfer facility, transportation under the HMR continues until the 
hazardous waste is delivered to the permitted facility named as the 
destination facility on the hazardous waste manifest.
    However, our interpretation that transportation under the HMR ends 
upon delivery to a consignment facility conducting repackaging applies 
fully to a RCRA permitted facility that receives a hazardous waste 
shipment as the destination facility on a hazardous waste manifest, and 
then conducts repackaging activities. Many waste management firms with 
RCRA permits have integrated transportation and waste treatment, 
storage, and disposal operations. It is not uncommon for such a waste 
management firm to pick up small waste shipments from numerous 
generator sites, and then transport them to one of its permitted sites 
for storage and consolidation or repackaging. The permitted storage 
facility is listed on the manifest as the destination facility for the 
waste shipment, and so cannot be considered to be a ``transfer 
facility'' under RCRA regulations. However, if such a facility receives 
a waste shipment that is consigned to it under the manifest for 
repackaging, this shipment would fall within the policy in today's rule 
on consignments for repackaging. Transportation under the HMR would end 
upon delivery to the destination facility on the manifest. The 
repackaging of the waste would then give rise to the start of pre-
transportation functions aimed at preparing the repackaged waste 
shipment for its transportation to another destination facility under a 
new hazardous waste manifest.

E. State/Local Requirements and Preemption

    One of the primary purposes of Federal hazmat law is to assure a 
nationally uniform set 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:
    (1) Complying with the non-Federal regulation and complying with 
Federal hazmat law or the HMR or a hazardous materials transportation 
security regulation or directive issued by the Secretary of Homeland 
Security is not possible (dual compliance test; 49 U.S.C. 5125(a)(1)); 
or
    (2) The non-Federal requirement is an obstacle to carrying out 
Federal hazmat law, the HMR, or a hazardous materials transportation 
security regulation or directive issued by the Secretary of Homeland 
Security (obstacle test; 49 U.S.C. 5125(a)(2)).
    Further, Federal hazmat law preempts a non-Federal requirement 
applicable to any one of several specified covered subjects if it is 
not substantively the same as Federal hazmat law, the HMR, or a 
hazardous materials transportation security regulation or directive 
issued by the Secretary of Homeland Security (covered subjects test; 49 
U.S.C. 5125(b)).
    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, another Federal law may authorize non-Federal requirements. 49 
U.S.C. 5125(a) and (b). 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).
    Commenters generally support the strong preemption provisions in 
Federal hazmat law and credit preemption of inconsistent state and 
local hazardous materials transportation requirements for contributing 
to the strong hazardous materials transportation safety record. As 
discussed above in this preamble, many commenters are concerned that 
the NPRM undermines national regulatory uniformity and opens the door 
to inconsistent and conflicting regulation of hazardous materials by 
state, local, and tribal governments. We do not agree that the NPRM's 
proposals for defining the parameters of the applicability of the HMR 
undermine the preemption provisions of Federal hazmat law. As noted 
several times herein and in the preamble to the NPRM, the proposals are 
generally consistent with current provisions in the HMR and with 
current policies outlined in letters of interpretation, preemption 
determinations, and other administrative decisions. The fact that 
numerous commenters are apparently unfamiliar with these current 
requirements merely highlights the need to clarify the applicability of 
the HMR in the HMR itself, which is the precise purpose of this final 
rule. This final rule clarifies for the regulated industry and for 
state, local, and tribal governments those areas where non-Federal 
regulation is likely to be preempted and those areas where non-Federal 
agencies may impose regulations.
    Several commenters suggest revisions to the language proposed in 
the NPRM in Sec.  171.1(f) to clarify where and to what functions non-
Federal requirements may apply. For example, one commenter suggests 
that this section reference the preemption standards in subsection C of 
49 CFR part 107 rather than repeat the standard in the HMR. We believe 
that such repetition in the HMR is helpful; however, we have revised 
this section to indicate that procedures for preemption

[[Page 61924]]

determinations can be found in Part 107.
    The preemption provisions of Federal hazmat law effectively 
preclude state, local, and tribal governments from regulating pre-
transportation functions, as defined in this final rule, 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) transloading a hazardous material at an intermodal 
transfer facility from one HMR-authorized bulk packaging to another 
HMR-authorized bulk packaging for the purpose of continuing the 
movement of the hazardous material in commerce; (5) securing a closure 
on a filled hazardous materials package or container or on one 
containing a residue of a hazardous material; (6) marking a package to 
indicate that it contains a hazardous material; (7) labeling a package 
to indicate that it contains a hazardous material; (8) preparing a 
shipping paper; (9) providing and maintaining emergency response 
information; (10) reviewing a shipping paper to verify compliance with 
the HMR or international equivalents; (11) for persons importing a 
hazardous material in to the United States, providing the shipper with 
information as to the requirements of the HMR that apply to the 
shipment of the material while in the United States; (12) certifying 
that a hazardous material is in proper condition for transportation in 
conformance with the requirements of the HMR; (13) blocking and bracing 
a hazardous materials package in a freight container or transport 
vehicle; (14) segregating a hazardous materials package in a freight 
container or transport vehicle from incompatible cargo; and (15) 
selecting or providing placards for a transport vehicle to indicate 
that it is carrying hazardous materials. We have not attempted, in this 
final rule, to identify every function that is a pre-transportation 
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 final rule 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 final rule, 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 
of a hazardous material onto a transport vehicle, aircraft, or vessel 
or into a bulk packaging; (3) unloading of a hazardous material from a 
transport vehicle, aircraft, or vessel or from a bulk packaging when 
carrier personnel are present; and (4) 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 final rule are subject to 
applicable non-Federal community right-to-know, fire protection, worker 
protection, environmental protection, building code, and zoning 
requirements. Moreover, although the HMR apply to pre-transportation 
functions as defined in this final rule, the facilities within which 
pre-transportation 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, 
environmental protection, building code, 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, February 15, 1995). 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, February 15, 1995). 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, 
December 7, 1998).
    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.

F. OSHA, EPA, and ATF Programs and Regulations

    OSHA. 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.
    OSHA has promulgated a number of standards that address the 
handling of hazardous materials at fixed facilities. These include 
standards 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 standards also address 
hazard communication requirements at fixed facilities, including 
container labeling, retention of transportation placards, and other 
forms of warning, material safety data sheets, and employee training. 
(29 CFR 1910.1200) In addition, facilities that handle and store 
hazardous materials must comply with OSHA standards 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.
    EPA. EPA's mission 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:

[[Page 61925]]

    [sbull] 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 public-industry dialogues on risks and 
risk reduction. EPCRA also requires facilities to report releases of 
certain hazardous materials to state and local emergency responders.
    [sbull] 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.
    [sbull] 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.
    [sbull] 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 non-transportation-
related onshore and offshore facilities into or onto the navigable 
waters of the United States or adjoining shorelines.
    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.
    ATF. Congress enacted Title XI of the Organized Crime Control Act 
of 1970 to protect interstate and foreign commerce against interference 
and interruption by reducing the hazard to persons and property arising 
from misuse and unsafe or insecure storage of explosive materials. 
Chapter 40 of the 1970 Act is entitled Importation, Manufacture, 
Distribution and Storage of Explosive Materials. ATF has been delegated 
the authority to enforce Chapter 40. ATF has promulgated regulations 
contained in 27 CFR part 555 to implement its provisions.
    For example, Sec.  555.30 contains requirements for licensees, 
permittees, carriers of explosives materials, and other persons to 
report the theft or loss of explosive materials within 24 hours of 
discovery. ATF regulations also contain detailed provisions governing 
the storage of explosive materials. These storage regulations address 
numerous issues including: (1) A requirement to inspect storage 
facilities at least every seven days (section 555.204); (2) where 
magazines may be located (section 555.206); (3) construction 
requirements of magazines, including locking mechanisms (sections 
555.207-211); and (4) quantity restrictions and restrictions on the 
items that may be stored together (section 555.213).
    Relationship of Federal hazmat law to other statutes and 
regulations. 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 provisions of this final 
rule 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 pre-transportation or 
transportation functions are performed must comply with applicable OSHA 
standards 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 and with state 
and local regulations that address environmental protection.
    Facilities at which pre-transportation or transportation functions 
are performed may be subject to EPA regulations and additional OSHA 
standards applicable to hazardous materials at fixed facilities. 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. Further, facilities at which pre-
transportation or transportation functions are performed may also be 
subject to ATF regulations applicable to licensing and permitting and 
safe handling, including storage, of explosives. Questions as to the 
applicability of EPA or ATF regulations or standards to particular 
facilities or operations should be directed to the appropriate EPA, 
OSHA, or ATF office.
    OSHA Programs and Standards. 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 or serious physical harm and to comply 
with occupational safety and health standards. Occupational Safety and 
Health Act of 1970 (OSH Act) (84 Stat. 1590, as amended, 29 U.S.C. 
653(b)(1).
    To avoid duplicative regulation, section 4(b)(1) of the OSH Act 
provides:

    Nothing in this Act shall apply to working conditions of 
employees with respect to which other Federal agencies * * * 
exercise statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety or health. (Emphasis 
added.)

    However, when enacting and codifying the Federal hazmat law and 
several other Federal statutes, Congress recognized that OSHA is the 
most appropriate agency for addressing certain workplace hazards and, 
therefore, included explicit language that preserves OSHA's regulatory

[[Page 61926]]

authority in areas where it might otherwise be preempted. Such 
``reverse preemption language'' functions to nullify any effect the OSH 
Act's 4(b)(1) provision might otherwise have and thus ensures that 
OSHA's standards remain applicable.
    Even without the reverse preemption language, OSHA would only be 
precluded from applying its standards to facilities that perform pre-
transportation and transportation functions if DOT were to ``exercise'' 
its statutory authority, under Federal hazmat law, to prescribe or 
enforce occupational safety and health standards of regulations at 
these facilities. The Supreme Court recently held that mere possession 
by another Federal agency of unexercised authority is insufficient to 
displace OSHA's jurisdiction. Chao v. Mallard Bay Drilling, Inc., 524 
U.S. 235, 241 (2002). The Court further held that a Federal agency's 
minimal exercise of some authority over certain working conditions does 
not result in complete preemption of OSHA jurisdiction. Id. Because we 
neither affirmatively regulate the working conditions at facilities 
where pre-transportation and transportation functions are performed, 
nor assert comprehensive regulatory jurisdiction over the working 
conditions at these facilities, OSHA's standards and regulations would 
continue to apply at these facilities even in the absence of reverse 
preemption language. This final rule makes clear that we do not intend 
to exercise our statutory authority in a manner that precludes OSHA 
from regulating at facilities where pre-transportation and 
transportation functions are performed.
    In the NPRM discussion of OSHA authority, we stated that functions 
regulated under the HMR should not also be subject to conflicting 
regulation by state and local governments and that other Federal 
requirements should be consistent 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.
    One commenter suggests that ``allowing OSHA to regulate hazardous 
materials transportation workers opens the door to a myriad of 
different state regulations covering these activities, as only RSPA is 
capable of preempting state occupational safety and health regulations 
that differ from the federal standard.'' This commenter further 
suggests that ``RSPA consider incorporating by reference applicable 
OSHA rules. This option would allow RSPA to avail itself of OSHA's 
expertise without duplicating resources. * * * The primary benefit of 
such a strategy would be the promulgation of uniform hazardous 
materials transportation worker safety standards that would apply 
nationwide * * *'' (American Trucking Associations) Other commenters 
suggest that RSPA could utilize the notice-and-comment rulemaking 
process to propose hazmat employee safety regulations, based on OSHA 
requirements, for inclusion in the HMR. ``[W]e note that the 
Administrator has ample resources to publish a proposal, evaluate 
comments as to the efficacy and applicability of the proposed standard 
to hazmat transportation safety and craft a final rule. For years, the 
Administrator has done this with respect to consensus standards 
published by entities both domestic and international, and we see no 
reason why this successful approach can't be replicated with respect to 
OSHA and EPA.'' (National Tank Truck Carriers)
    We disagree. As we stated in the NPRM, the OSH Act permits states 
to adopt and enforce worker safety standards that may be more stringent 
than the standards promulgated by OSHA. 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. If we were to incorporate by reference OSHA's 
standards, then this could prevent states and localities from adopting 
more stringent worker safety standards and would thus undermine the 
intent of Congress as clearly expressed in the OSH Act. On the other 
hand, because OSHA standards are promulgated under authority of the OSH 
Act, states would be permitted to adopt more stringent requirements 
irrespective of the preemption provisions of Federal hazmat law. We do 
not believe that incorporating certain OSHA standards into the HMR 
would result in uniform Federal regulation of transportation worker 
safety in a manner consistent with Federal hazmat law or the OSH Act.
    The NPRM proposed no change to the current division of 
responsibilities between OSHA and RSPA for the regulation of hazardous 
materials. OSHA has concurrent authority in this area, and its 
standards protect workers who perform pre-transportation and other 
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 final rule, the HMR apply to the function being 
performed, and OSHA's requirements 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 standards apply 
to the working conditions under which the function is performed and to 
measures necessary to protect the employee performing the function, 
such as protective clothing and breathing equipment. The same is true 
for transloading operations at intermodal transfer facilities--the 
transloading function is regulated under the HMR, while OSHA 
regulations apply to the working conditions under which transloading is 
performed and the measures necessary to protect the employee performing 
transloading operations.
    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

[[Page 61927]]

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. For example, the HMR include a variety of requirements for 
communication of the hazards associated with a specific hazardous 
materials shipment, such as shipping papers, package marks and labels, 
and placards. The HMR also require a shipping paper to include a 
telephone number for information about responding to an emergency 
involving the shipment. A shipper must also include emergency response 
information about the specific hazardous material being shipped with 
the documentation that accompanies the shipment. These hazard 
communication requirements are intended to assist emergency responders 
to handle hazardous materials transportation incidents. The HMR also 
require hazmat employees (employees who perform functions that affect 
the safe transportation of a hazardous material) to receive safety 
training concerning emergency response information for the materials 
handled, protective measures, and methods and procedures for avoiding 
accidents. The HMR specify that training provided in accordance with 
OSHA requirements may be used to satisfy the HMR safety training 
requirements.
    OSHA standards include requirements for emergency action and fire 
prevention plans at facilities. The OHSA standard for process safety 
management includes requirements for emergency response to hazardous 
materials incidents at a facility. OSHA also has promulgated a standard 
for emergency response to hazardous materials incidents at fixed 
facilities. The OSHA Hazardous Waste Operations and Emergency Response 
Standard, 29 CFR 1910.120, includes requirements to protect workers in 
this environment and to help them handle hazardous wastes safely and 
effectively. The OSHA standard includes specific response procedures, 
including requirements for protective equipment and training for 
emergency response personnel.
    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.
    Where the functions performed by hazmat employees are intrinsic to 
the operations of carriers that transport hazardous materials in 
commerce, the Secretary of Transportation, as well as OSHA, exercises 
regulatory authority under Federal hazmat law for occupational safety 
and health issues related to those hazmat employees. One commenter asks 
for clarification of how OSHA and RSPA will exercise their shared 
authority concerning worker safety protections for transportation 
workers. ``A driver loading or unloading a cargo tank is subject to the 
exact same health risks as a warehouse employee performing the same 
task. It should go without saying that both employees are entitled to 
the same worker safety protections, and OSHA is the agency to provide 
those protections. *** [T]he HMR is primarily geared towards the 
important task of preventing a release of hazardous materials during 
transportation. *** OSHA, on the other hand, is better able to focus 
its resources on the safety of workers who, despite the DOT 
regulations, may nevertheless be exposed to hazardous materials during 
loading, unloading, and storage. In this respect, OSHA regulates 
aspects of the work environment that DOT admittedly does not have the 
resources to regulate itself, including matters such as personal 
protective equipment, permissible exposure limits, ventilation, hazard 
communications, and medical surveillance. Employers should not be able 
to avoid responsibility for protecting their employees through 
compliance with these and other OSHA requirements, simply because DOT 
regulates other aspects of hazardous materials transportation.'' 
(International Brotherhood of Teamsters)
    We agree. As the Mallard Bay decision makes clear, allowing 
complete preemption of OSHA regulations where another agency has 
exercised only limited authority over certain working conditions would 
result in large gaps in worker safety regulations that would be 
inconsistent with the purpose of the OSH Act. While, as we stated in 
the NPRM, DOT is uniquely qualified to play the primary Federal 
regulatory role in the protection of transportation workers, we 
recognize that OSHA also has a role in the protection of such workers. 
Therefore, in this final rule, we are modifying the regulatory language 
proposed in the NPRM to clarify that each facility at which pre-
transportation or transportation functions are performed is subject to 
applicable standards and regulations of other Federal agencies.
    As discussed elsewhere in this preamble, OSHA and DOT will continue 
to share regulatory authority for certain transportation functions. 
Thus, for loading or unloading operations, the HMR apply to the 
packaging, including valving, piping, and hoses that are included as 
part of a DOT specification packaging standard, to filling and closure 
requirements for a packaging, and to specified operational procedures 
when loading or unloading is performed by or in the presence of carrier 
personnel. The OSHA regulations apply to facility equipment, including 
hoses, piping, and valves that are part of and maintained by the 
facility, and to operational procedures for a facility at which loading 
or unloading operations are performed. Persons loading or unloading 
hazardous materials at a facility may be subject to both HMR and OSHA 
requirements.
    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 
making in this final rule 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 might 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

[[Page 61928]]

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 contemplated by EPCRA. 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 are adopting in this final rule 
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 RSPA's longstanding policy, as defined in 
this final rule, 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 definitions in this final rule, hazardous materials in 
the following non-transportation situations are subject to applicable 
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.
    (3) Hazardous materials stored at a consignee facility after 
delivery.
    Clean Air Act, Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  
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).
    Consistent with prior RSPA interpretations and administrative 
determinations (as cited previously in this preamble and in the 
preamble to the NPRM), the provisions in this final rule clarify that, 
from DOT's perspective, the following situations are neither 
transportation in commerce nor storage incidental to transportation in 
commerce:

[[Page 61929]]

    (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 following delivery to the consignee and after departure 
of the carrier from the consignee facility, including unloading into a 
manufacturing process.
    (3) Hazardous materials stored at a consignee facility after 
delivery.
    (4) Hazardous materials temporarily stored at a transfer 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.
    The federal and state jurisdictional issues arising under hazardous 
waste transportation law can be quite complex. At a threshold level, 
EPA and DOT have joint statutory responsibilities for developing the 
regulations that apply to hazardous waste transportation and to the 
pre-transportation functions that are usually conducted by hazardous 
waste generators. EPA and DOT are required by law to consult on the 
development of hazardous waste transportation regulations, and as a 
result, the two agencies' regulations in this area are inter-related. 
EPA has incorporated DOT's pre-transportation requirements into its 
hazardous waste generator regulations (see 40 CFR Part 262, Subpart C); 
i.e., generators that send waste off-site for treatment, storage, or 
disposal must comply with all applicable requirements of the HMR, 
including the requirements for packaging, marking, and labeling 
materials. In addition, generators are required to prepare, and 
transporters are required to carry, the Uniform Hazardous Waste 
Manifest for their off-site shipments. The HMR incorporate the Uniform 
Hazardous Waste Manifest requirements for hazardous waste shipments and 
permit such a manifest to be used to meet HMR requirements for shipping 
papers provided it contains all the information required under Subpart 
C of Part 172 of the HMR.
    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 defined in this final rule--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. 
The EPA regulations establish a comprehensive set of requirements that 
include administrative controls and facility standards aimed at 
controlling the management of hazardous wastes at every point in the 
waste cycle.
    As is typical of many EPA environmental programs, RCRA hazardous 
waste programs are implemented primarily by authorized state agencies. 
While the RCRA statute generally allows authorized state programs to 
include additional or more stringent requirements than those 
established under EPA's regulations (see RCRA Sec.  3009), the 
authority of RCRA authorized state programs to enact requirements that 
are more stringent than federal requirements is limited in the area of 
hazardous waste transportation. This follows from the fact that RCRA 
Sec.  3003(b) requires that hazardous waste transporter regulations 
adopted by EPA under RCRA Subtitle C must be consistent with the 
requirements of the federal hazmat law and the HMR. RCRA state program 
requirements for hazardous waste transportation must also be consistent 
with federal hazmat law and regulations issued thereunder, or they may 
be subject to preemption. Usually, authorized state programs adopt 
hazardous waste transportation regulations that essentially mimic the 
federal hazardous waste pre-transportation and transportation 
regulations adopted by EPA. However, when state program regulations on 
hazardous waste transportation exceed those developed by EPA, there is 
at least the potential for these additional state law requirements to 
raise issues of consistency with hazardous materials law and the HMR, 
and thus give rise to preemption concerns.
    The Federal/state jurisdictional issues that arise under hazardous 
waste law can become quite complex when RCRA authorized states adopt 
different or more stringent hazardous waste program requirements 
affecting facilities where transportation related activities are 
conducted. These issues have been raised most prominently in recent 
years at hazardous waste ``transfer facilities.'' Transfer facilities 
consist of dedicated, temporary storage facilities that are operated by 
or for hazardous waste transporter companies. Under EPA standards (see 
40 CFR 263.12 and Sec.  260.10), hazardous wastes may be stored at 
transfer facilities without a RCRA permit for up to 10 days in DOT 
approved packages, as long as the waste shipment remains under an 
active manifest, and the storage occurs in the normal course of 
transportation. Typically, such facilities handle transfers of waste 
containers between vehicles, intermodal transfers, through shipments, 
and consolidation of wastes in the normal course of transportation.
    By their nature, hazardous waste transfer facilities involve 
hazardous materials activities subject to the HMR (loading, unloading, 
handling, repackaging, storage incidental to movement), as well as 
hazardous waste storage and transportation related activities subject 
to RCRA. Several RCRA authorized states have enacted additional 
regulatory controls that exceed the minimal requirements specified in 
EPA's transfer facility regulation. This additional layer of state 
environmental regulation under RCRA has given rise to issues and 
litigation surrounding the states' authority to impose additional 
requirements at transfer facilities, and how these state requirements 
relate to this Department's jurisdiction over hazardous materials under 
the hazardous materials laws and the HMR.
    The types of additional controls imposed on RCRA transfer 
facilities by authorized states may run the gamut from licensing 
requirements similar to those imposed on hazardous waste storage 
facilities, to facility design and operation criteria that may include 
berm or curb specifications, secondary containment requirements, floor 
material specifications for container storage areas, aisle space or 
setback requirements, waste compatibility standards, container 
inspection requirements, and requirements for spill prevention or 
mitigation equipment at loading docks and transfer areas. In addition, 
states have imposed requirements for personnel training in hazardous 
waste management, contingency planning, and closure planning and 
financial assurance requirements to ensure that wastes are properly 
removed and facilities and sites are properly decontaminated when

[[Page 61930]]

hazardous waste operations cease at transfer facilities. (These are 
just a few examples of state-imposed controls and standards which RCRA 
authorized states and EPA have identified to us; we do not mean to 
suggest that this is an exhaustive listing.)
    As is the case with OSHA-regulated worker safety requirements, the 
fact that pre-transportation or transportation functions subject to the 
HMR are performed at a hazardous waste facility, including a RCRA 
transfer facility, does not preclude EPA, RCRA authorized state 
agencies, or local government bodies from also imposing regulatory 
requirements at that facility. In particular, RCRA authorized state 
hazardous waste programs may impose facility requirements that exceed 
the regulatory requirements enacted by EPA, when these additional 
requirements are aimed at addressing the hazardous waste management 
aspects of the facility, and are aimed at accomplishing environmental 
protection objectives such as preventing releases of hazardous wastes 
to the environment or protecting the environment in the event of a 
release. Such state environmental regulations are permissible as long 
as they are not aimed at regulating the transportation or pre-
transportation functions that are covered by the HMR, and do not affect 
the performance of HMR-regulated transportation or pre-transportation 
functions.
    Should a state hazardous waste regulation be found to affect the 
performance of HMR-regulated functions, it will be evaluated on a case-
by-case basis under the preemption criteria of 49 U.S.C. 5125. That is, 
state law requirements in RCRA authorized programs that differ from 
federal transportation or pre-transportation requirements will be 
evaluated to determine if they fail the dual compliance, obstacle, or 
covered subject tests discussed previously in this preamble section. 
Thus, for example, RCRA authorized state agencies may not impose 
packaging standards differing from those included in the HMR; they may 
not impose manifesting requirements differing from those adopted by EPA 
and DOT; and they may not prohibit facilities from handling (e.g., 
consolidating or repackaging) hazardous wastes at transfer facilities 
or other facilities that are subject to regulation under both RCRA and 
the HMR. There are, of course, other state law requirements beyond 
these few examples that could affect the performance of transportation 
or pre-transportation functions in ways that would be inconsistent with 
hazardous materials law and the HMR.
    Otherwise, facilities that perform both hazardous waste management 
functions and transportation/pre-transportation functions must ensure 
that the functions subject to the HMR are performed in accordance with 
the HMR, and must also assure compliance with applicable EPA or State 
law requirements addressing the environmental concerns associated with 
the hazardous waste management functions at the facilities. Thus, in 
the example of a RCRA transfer facility, preparation of hazardous waste 
packages for shipment must be performed in accordance with the HMR. The 
facility must also comply with the RCRA authorized states' 
environmental regulations addressing the facility's hazardous waste 
storage functions, such as berm and floor design requirements, 
secondary containment requirements, aisle space and container 
inspection requirements, personnel training requirements, and the like. 
There is a broad scope to the possible environmental protection 
requirements that might be imposed under state law and not pose any 
significant jurisdictional issue under the hazardous materials laws and 
the HMR.
    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 non-transportation-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, transfer hoses, loading 
arms, and other equipment that is appurtenant to a non-transportation-
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.
    ATF Programs and Regulations. As explained above, ATF regulations 
at 27 CFR part 555 address the import, manufacture, distribution, and 
storage of explosives. The regulations are promulgated under Chapter 40 
of Title XI of the Organized Crime Control Act of 1970. Section 845(a) 
of Chapter 40 states that most provisions of Chapter 40 shall not apply 
to:

any aspect of the transportation of explosive materials via 
railroad, water, highway, or air which are regulated by the United 
States Department of Transportation and agencies thereof, and which 
pertain to safety.

    Accordingly, when explosives fall within this exception, they are 
not governed by the ATF regulatory requirements set forth above. Thus, 
explosives that are stored incidental to movement, as that term is 
defined in this final rule, are not subject to ATF requirements, but 
instead are subject to HMR requirements applicable to such storage. 
However, Sec.  845(a) does not apply in situations where facility 
personnel perform pre-transportation functions with respect to 
preparing explosives for transportation. Thus, as is the case with 
certain OSHA and EPA regulations, a facility at which pre-
transportation functions are performed may also be subject to ATF 
regulations applicable to operations at that facility.
    The HMR do not contain storage and theft/loss reporting 
requirements that directly correspond to the ATF regulations. The HMR 
require hazardous materials stored incidental to movement to meet all 
the applicable shipping paper, emergency response information, hazard 
communication, packaging, and operational requirements that apply when 
shipments are actually moving in transportation. In addition, the 
Federal Motor Carrier Safety Regulations impose requirements on motor 
vehicles that include requirements for storage incidental to movement. 
For example, a motor vehicle that contains Division 1.1, 1.2, or 1.3 
explosives must be attended at all times, including during incidental 
storage, unless the motor vehicle is located on the motor carrier's 
property, the shipper or consignee's property, or at a safe haven. In 
addition, a motor vehicle containing a Division 1.1, 1.2, or 1.3 
explosive may not be parked on or within 5 feet of the traveled portion 
of

[[Page 61931]]

a public highway or street; on private property without the consent of 
the person in charge of the property; or within 300 feet of a bridge, 
tunnel, dwelling, or place where people work or congregate unless for 
brief periods when parking in such locations is unavoidable. ATF has 
expressed some concern that explosives stored incidental to their 
movement in transportation and, thus, falling within the Sec.  845(a) 
exception, may present potential safety and security risks. For 
example, ATF suggests that such explosives could be stored close to 
non-related residential and commercial structures, as well as to 
highways and roadways that are commonly traveled by the general public. 
ATF is concerned that unsafe amounts of explosives could be stored in 
one location and may not be adequately secured. Because the HMR do not 
contain a restriction on the amount of time explosives may be stored 
incidental to movement, ATF sees these regulatory deficiencies as 
especially problematic. Moreover, the fact that explosives lost or 
stolen while in transit do not have to be promptly reported as lost or 
stolen could hinder law enforcement in preventing harm and gathering 
intelligence.
    We recognize there is a need to evaluate and address these issues 
in the regulation of explosives stored incidental to movement. However, 
this final rule is not the appropriate vehicle for imposing safety and 
security requirements on explosives stored incidental to movement. This 
final rule addresses specific situations, activities, and operations to 
which the HMR apply, not what the safety and security standards should 
be when the HMR do apply. In order to enhance the safety and security 
of hazardous materials, including explosives, stored incidental to 
transportation, we intend to propose additional requirements for 
hazardous materials stored incidental to transportation. We intend to 
consider industry and government standards, including the ATF 
regulations in part 555, for guidance in formulating our proposals with 
respect to explosives.
    Finally, ATF also has concerns about ``safe havens.'' The FMCSRs 
permit explosives to be stored for an indefinite period in a ``safe 
haven.'' ATF has found that safe havens have been located next to major 
highways and used for extended periods to store explosives. Because the 
issue of safe havens is addressed in the advance notice of proposed 
rulemaking issued jointly by RSPA and FMCSA under docket HM-232A on 
July 16, 2002 (67 FR 46622), we will not address it in this final rule. 
However, we will address these concerns in the near future.

IV. Revisions to Sec.  174.67

    On September 14, 1992, we published an NPRM under Docket HM-212 (57 
FR 42466), proposing several changes to the HMR as they apply to 
loading and unloading of hazardous materials from rail tank cars and 
cargo tanks. We proposed to amend the following sections of the HMR:
    [sbull] Section 174.67(i) pertaining to unloading of tank cars and 
Sec.  177.834(i) pertaining to the loading of cargo tanks to provide 
for the use of signaling systems to meet attendance requirements.
    [sbull] Sections 174.67(i) and 174.67(j) to allow a tank car 
containing hazardous materials, under certain conditions, to remain 
standing with the unloading connections attached when no hazardous 
material is being transferred.
    [sbull] Section 177.834 to remove a requirement that an attendant 
must be within 25 feet of the cargo tank motor vehicle during loading 
operations that are monitored by a signaling system.
    Our goals were to provide tank car and cargo tank operators the 
flexibility to design loading and unloading procedures appropriate to 
specific facilities and circumstances, to accommodate new technologies 
in the current regulatory scheme, and to incorporate certain exemptions 
into regulations of general applicability. We received about forty (40) 
comments in response to the NPRM from manufacturers, distributors, 
shippers, carriers, and industry associations. Overall, commenters 
supported the proposed rule, stating that it provides flexibility and 
economic relief to industry with no diminution in safety.
    The HM-223 NPRM proposed to delete the rail tank car unloading 
requirements in Sec.  174.67, except for certain provisions related to 
protection of train and engine crews, because changes in the way rail 
tank cars are unloaded made the Sec.  174.67 requirements obsolete. As 
discussed above, however, we have reconsidered the proposal in light of 
comments suggesting the transloading operations should be regulated 
under the HMR. Therefore, in this final rule, we are adopting certain 
changes to Sec.  174.67 to update and clarify requirements and to 
incorporate the provisions of certain exemptions into the HMR. This 
final rule specifies that the requirements in Sec.  174.67 apply to 
transloading operations. As discussed above, actions that assure that a 
tank car that is being loaded or unloaded does not inadvertently enter 
transportation or endanger transportation personnel (i.e., posting 
warning signs, setting brakes, blocking wheels) are regulated under the 
HMR. Unloading of rail tank cars by consignees after delivery by the 
carrier is not regulated under the HMR, except as described in this 
paragraph. As stated previously in this preamble, unloading of rail 
cars at a facility after delivery by and departure of the rail carrier 
is subject to OSHA regulations applicable to worker protection and 
safety.
    This final rule incorporates revisions to Sec.  174.67 applicable 
to: (1) Securing tank cars during unloading to prevent movement of the 
tank cars and entry to the unloading area by other rail equipment; (2) 
written safety procedures; (3) monitoring of tank car unloading; and 
(4) permitting tank cars to remain standing with unloading connections 
attached. Except for those applicable to monitoring of tank car 
unloading, the revisions proposed in this interim final rule are 
currently authorized under over 80 exemptions granted to operators of 
tank car unloading facilities.
    The revisions to the tank car unloading monitoring requirements 
incorporate procedures that are currently permitted by interpretation. 
The HM-212 NPRM included a proposal to permit monitoring of tank car 
unloading by use of a signaling system that includes surveillance 
equipment (television monitors and video cameras) and remote shut-off 
equipment. A number of commenters suggested that the proposal should be 
expanded to authorize systems other than television or video 
surveillance equipment, noting that sensors coupled with alarms can be 
as effective as visual surveillance in detecting unintentional 
releases. Indeed, in the case of a hazardous material that exists as a 
gas under ambient conditions, a sensor is more effective than visual 
surveillance. After further consideration of general industry 
practices, we determined that a signaling system need not be equipped 
with television monitors and video cameras to effectively meet the 
attendance requirements as was proposed in the NPRM. Other types of 
signaling systems are also acceptable. This final rule reflects this 
change and is consistent with letters of clarification issued over the 
past several years applicable to monitoring of tank car unloading.
    This final rule revises Sec.  174.67 as follows:
    1. Paragraph (a)(2) incorporates provisions, currently required 
under exemptions, relevant to blocking the wheels of tank cars during 
unloading.

[[Page 61932]]

    2. Paragraph (a)(3) incorporates provisions, currently required 
under exemptions, relevant to securing access to the track where 
unloading operations are conducted. This paragraph requires facilities 
to use derails, lined and blocked switches, portable bumper blocks, or 
other equipment to prevent access by other rail equipment, including 
motorized service vehicles.
    3. Paragraph (a)(4) modifies the provisions in current paragraph 
(a)(3) to permit operators some flexibility in the wording used on 
caution signs.
    4. Paragraph (a)(5) incorporates provisions, currently required 
under exemptions, relevant to written safety procedures. This paragraph 
requires operators to maintain written safety procedures, such as those 
that meet the requirements of OSHA regulations in 29 CFR 1910.119 and 
120, that are immediately available in the event of an emergency. 
However, this provision is not intended to preempt the process safety 
management, hazardous waste operations and emergency response, or any 
other OSHA standards.
    5. Paragraph (j) incorporates provisions currently permitted by 
interpretation relevant to monitoring of unloading operations. To 
eliminate confusion in wording noted by commenters, paragraph (i) is 
modified in this final rule to clarify that the attendance requirement 
may be met either by physical on-site attendance providing an 
unobstructed view of the tank car unloading operation as currently 
authorized under the HMR or by a signaling system, including video 
systems, sensors, or mechanical equipment, that provides a level of 
observation equivalent to on-site attendance.
    6. Paragraph (j) is revised to specify that attendance is not 
required when piping is attached to a top discharge outlet of a tank 
car equipped with a protective housing specified in Sec.  179.100-12 
provided that all valves on the tank car are tightly closed, the piping 
is not connected to a hose or other unloading equipment, and the piping 
extends no more than 15.24 centimeters (6 inches) from the outer edge 
of the protective housing within which the discharge outlet is 
enclosed. This provision eliminates the need for an operator to 
disconnect piping when the unloading operation is interrupted or 
temporarily discontinued, thereby reducing wear on the unloading 
service equipment.
    7. Current paragraph (k) is redesignated paragraph (l). New 
paragraph (k) incorporates provisions, currently required under 
exemptions, relevant to tank cars left standing with unloading 
connections attached while no product is being transferred. Paragraph 
(k) requires the facility operator to designate an employee responsible 
for on-site monitoring of the transfer facility who is familiar with 
the properties of the products contained in the tank cars and 
procedures to be followed in the event of an emergency. The designated 
employee must have the ability and the authority to take responsible 
actions in the event of an emergency.

V. Section-by-Section Review

General

    In Sec.  171.8, we 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 are replacing the term ``movement'' when it appears in 
the HMR in a context where the new definition would be inappropriate. 
These changes are in Sec. Sec.  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 final rule, we are retitling this section 
``Applicability of HMR to persons and functions.'' We are adding 
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 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. Paragraph (a) restates 
requirements in current paragraphs (a)(3) and (b) of Sec.  171.1.
    Paragraph (b) of this section specifies that the HMR apply to pre-
transportation 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. Paragraph (b) includes a non-exhaustive list of 
pre-transportation functions to which the HMR apply.
    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. Paragraph (c) also defines the 
points at which transportation in commerce begins and ends and lists 
transportation functions included in the term ``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. In this 
final rule, the definitions have been revised from those proposed in 
the NPRM to reflect commenters' concerns and suggestions.
    Paragraph (d) lists specific functions that are not subject to the 
HMR.
    Paragraph (e) states that facilities at which pre-transportation or 
transportation functions are performed in accordance with the HMR may 
also be subject to applicable standards and regulations of other 
Federal agencies.
    Paragraph (f) states that facilities at which pre-transportation or 
transportation 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. Paragraph (f) also sets forth the 
criteria established in Federal hazmat law for making preemption 
determinations and notes that preemption procedures are in Subpart C of 
49 CFR Part 107.
    Paragraph (g) restates the penalties for noncompliance with the HMR 
that are currently in paragraph (c) of Sec.  171.1.

[[Page 61933]]

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 are revising this section to clarify those 
persons and activities that are subject to the requirements of the HMR. 
Generally, the revisions adopted in this section restate more clearly 
the current requirements and prohibitions.
    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.
    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.
    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.
    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.
    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.
    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.
    Paragraph (g) restates requirements in current paragraph (c) of 
Sec.  171.2. 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. 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 requires a packaging marked as meeting a DOT 
specification or UN standard to conform to the specification or 
standard at all times that the marking is visible. The requirements of 
paragraph (g), like the current requirements in Sec.  171.2(a), apply 
whether or not the packaging is used for the transportation in commerce 
of a hazardous material.
    Paragraph (h) restates the requirements in current paragraph (d) of 
Sec.  171.2. This paragraph lists the representations, markings, and 
certifications subject to the prohibitions of paragraph (g) of this 
section.
    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 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.
    Paragraph (j) prohibits any person from marking or representing 
that a packaging 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 paragraph restates a prohibition in current paragraph (f)(1) of 
Sec.  171.2.
    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 
paragraph restates a prohibition in current paragraph (f)(2) of Sec.  
171.2.
    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 paragraph also prohibits any person from unlawfully 
tampering with a package or transportation conveyance used to transport 
hazardous materials. This paragraph restates a prohibition in current 
paragraphs (g)(1) and (g)(2) of Sec.  171.2.
    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 
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 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 are revising definitions for the terms 
``carrier,'' ``person,'' and ``private track and siding.'' We are 
adding definitions for the following terms: ``Administrator,'' 
``Associate Administrator,'' ``commerce,'' ``consignee,'' ``hazmat,'' 
``HMR,'' ``loading incidental to movement,'' ``movement,'' ``pre-
transportation function,'' ``Secretary,'' ``storage incidental to 
movement,'' ``transloading,'' ``transportation or transport,'' 
``transportation facility,'' and ``unloading incidental to movement.'' 
We are deleting the definition for the term ``sheathing'' because it is 
confusing and not necessary to an understanding of the HMR.

Part 173

    Section 173.1. We are removing paragraph (c) and redesignating 
current paragraph (d) as paragraph (c). Current paragraph (c) is 
redundant with the revisions to Sec. Sec.  171.1 and 171.2.
    Section 173.10. The NPRM proposed removing the requirements in this 
section. A number of commenters oppose the deletion. Upon consideration 
of the comments and consultation with FRA, we agree that the section 
should not be removed.
    Section 173.30. In the NPRM, we proposed to remove this section 
because it conflicts with the new definitions of ``loading incidental 
to movement'' and ``unloading incidental to movement'' proposed in 
Sec. Sec.  171.1 and 171.8. Upon further consideration, we have decided 
to retain this section with modifications to clarify that persons who 
are subject to the loading and unloading requirements of the HMR must 
comply with all applicable loading and unloading regulations.
    Section 173.31. We are adding 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 are revising Sec.  174.67 as discussed earlier in this preamble 
to incorporate revisions to rail tank car unloading requirements to 
incorporate certain exemptions provisions and clarify and update the 
requirements.

VI. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is considered a significant regulatory action under 
Executive Order 12866 and the

[[Page 61934]]

Regulatory Policies and Procedures of the Department of Transportation 
(44 FR 11034) because of significant public interest. A regulatory 
evaluation is available for review in the public docket for this 
rulemaking.
    For the most part, the provisions of this final rule 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 concerns rail tank car 
unloading operations. This final rule excludes consignee unloading of 
rail cars from regulation under the HMR, thereby reducing the costs of 
compliance with the HMR for rail tank car unloading facilities. In 
addition, this final rule expands application of current requirements 
for placing warning signs, setting brakes, and blocking wheels during 
rail tank car unloading operations to loading operations, as well. 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.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule preempts state law and will have substantial direct effects 
on 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 final rule addresses covered 
subject item(s) 1-5 above and preempts state, local, and Indian tribe 
requirements not meeting the ``substantively the same'' standard. This 
final 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 Sec.  
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. 
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.
    In addition, following publication of the NPRM, we wrote to the 
above-listed organizations to provide them with a copy of the NPRM. We 
encouraged the organizations to submit comments on the NPRM and invited 
them to meet with us to discuss the specifics of the proposals in the 
NPRM. None of the organizations requested a meeting nor did they submit 
comments.
    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 final 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 final 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

[[Page 61935]]

organization to submit written comments to the docket in advance of 
publication of this NPRM. The NCAI chose not to do so.
    In addition, following publication of the NPRM, we wrote to the 
NCAI to provide a copy of the NPRM. We encouraged NCAI to submit 
comments on the NPRM and invited its representatives to meet with us to 
discuss the specifics of the proposals in the NPRM. NCAI did not 
request a meeting or submit comments.

D. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    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. We have 
determined that the requirements in this final rule will not have a 
significant impact on a substantial number of small entities.
    Need for the proposed rule. 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. The regulations may govern any safety aspect of hazardous 
materials transportation the Secretary considers appropriate. The law 
defines ``transportation'' to mean ``the movement of property and 
loading, unloading, or storage incidental to the movement,'' but does 
not define with specificity the particular activities that fall within 
the term ``loading, unloading, or storage incidental to movement.''
    We have 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. In addition, there is uncertainty concerning the 
extent to which other Federal, state, and local agencies may regulate 
hazardous materials safety, especially at fixed facilities. Although 
the interpretations and administrative determinations we have issued 
are publicly available, the regulated industry, Federal agencies, state 
and local governments, 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. Thus, we have initiated a rulemaking to 
consolidate, clarify, and revise, as necessary, these interpretations 
and administrative decisions and make them part of the HMR.
    Description of Proposed Actions. The final rule clarifies the 
applicability of the HMR by focusing on a carrier's possession of 
hazardous materials for the purpose of transporting them in commerce. 
Thus, the HMR would apply to the following functions:

    1. Packaging functions. All functions related to the design, 
manufacture, maintenance, and use of packagings authorized for the 
transportation of hazardous materials in commerce. These functions 
include testing, retesting, and reconditioning functions designed to 
assure the integrity of authorized packagings.
    2. Pre-transportation functions. All functions performed in advance 
of transportation in commerce to prepare a shipment of hazardous 
materials for transportation. These functions affect the safety of 
hazardous materials shipments during transportation and include:
--Determining the hazard class of a hazardous material;
--Selecting a hazardous materials packaging;
--Placing warning signs, blocking wheels, and setting brakes on tank 
cars placed for loading or unloading with closures open;
--Filling a hazardous materials packaging;
--Securing a closure on a filled hazardous materials package or 
container;
--Marking a package to indicate that it contains a hazardous material;
--Labeling a package to indicate that it contains a hazardous material;
--Preparing a hazardous materials shipping paper;
--Providing and maintaining hazardous materials emergency response 
information;
--Reviewing a hazardous materials shipping paper to verify compliance 
with the HMR or international equivalents;
--For persons importing a hazardous material into the United States, 
providing the shipper with information as to the requirements of the 
HMR that apply to the shipment of the material while in the United 
States;
--Certifying that a hazardous material is in proper condition for 
transportation in conformance with the requirements of the HMR;
--Blocking and bracing a hazardous materials package in a freight 
container or transport vehicle;
--Segregating a hazardous materials package in a freight container or 
transport vehicle from incompatible cargo; and
--Selecting, providing, or affixing placards for a freight container or 
transport vehicle to indicate that it is carrying hazardous materials.
    3. Transportation functions. Functions performed as part of the 
movement of hazardous materials in commerce. These functions include:
--Loading incidental to movement (i.e., loading of non-bulk packages, 
portable tanks, or IBCs into freight containers or transport vehicles 
by carrier personnel; loading of cargo tank motor vehicles by carrier 
personnel; loading of rail tank cars by carrier personnel);
--Unloading incidental to movement (i.e., unloading of non-bulk 
packages, portable tanks, or IBCs from freight containers or transport 
vehicles by carrier personnel; unloading of cargo tank motor vehicles 
by carrier personnel; unloading of rail tank cars by carrier 
personnel); and
--Storage incidental to movement (i.e., storage of a hazardous 
materials package between the time the package leaves the shipper's 
premises and the time it arrives at the consignee's facility; storage 
of rail tank cars on track leased from carrier by consignee).

    Generally, the clarifications outlined above are consistent with 
current regulatory requirements and previously issued administrative 
decisions and interpretations concerning the applicability of the HMR 
and maintain the current status quo. However, for rail transportation, 
the clarifications included in the final rule represent a change from 
current practice and interpretation. Because tank car unloading by 
consignees is generally part of a manufacturing or distribution process 
and, as such, is inappropriate

[[Page 61936]]

for regulation as a transportation function under the HMR, in this 
final rule, we state that the unloading of a tank car by a consignee 
within its facility is not subject to the HMR. This approach is 
consistent with RSPA's current regulation of cargo tank unloading and 
takes into account the changes in industry rail tank car unloading 
practices since the regulations in Part 174 were promulgated. 
Transloading operations--that is, the transfer of a hazardous material 
at an intermodal facility directly from a rail tank car to a cargo tank 
motor vehicle for the purpose of continuing the movement of the 
hazardous material in commerce--would continue to be regulated under 
the HMR, as such operations currently are regulated.
    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. FRA wants to assure that, at the point of physical interface 
between the general system of rail transportation and the facility rail 
system, rail 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 rail crew safety or adversely affecting 
movement along the general system of rail transportation. Therefore, in 
this final rule, we retain current requirements for posting warning 
signs, setting hand brakes, and blocking the wheels of hazardous 
materials tank cars placed for unloading with closures open. We further 
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 rail 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.
    In this final rule, we have rewritten the regulations applicable to 
rail transloading operations in Sec.  174.67 of the HMR. The final rule 
permits facilities to use signaling systems to monitor operations and 
incorporates certain exemptions provisions authorizing tank cars to 
stand with unloading connections attached during intermittent 
operations. Eliminating the need for exemptions and permitting 
facilities flexibility in monitoring operations will significantly 
reduce operating costs for these facilities and will result in a 
reduction in administrative costs for the Federal government.
    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 final 
rule reduces the costs of compliance with the HMR by eliminating the 
current requirement that rail tank car consignees comply with unloading 
requirements in Sec.  174.67. For facilities at which rail tank cars 
are loaded with hazardous materials, because operators are currently 
posting warning signs, setting hand brakes, and blocking wheels of rail 
cars placed for loading as part of their standard operating procedures, 
the selected alternative imposes no costs of compliance related to 
preventing access to the tank car during loading.
    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. Based on data for 1997 compiled by the 
U.S. Census Bureau, it appears that upwards of 95 percent of firms who 
are subject to the HMR are small businesses. These entities will incur 
no new costs to comply with the HMR under this final rule.
    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 provisions in this final rule will not 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 operations, including containment and transfer 
operations, involving hazardous materials in the workplace. These 
regulations are codified at 29 CFR Part 1910 and include requirements 
for process safety management of highly hazardous chemicals and for 
operations involving specific hazardous materials, such as compressed 
gases, flammable and combustible liquids, explosives and blasting 
agents, liquefied petroleum gases, and anhydrous ammonia. OSHA 
regulations also address hazard communication requirements at fixed 
facilities, including container labeling and other forms of warning, 
material safety data sheets, and employee training.
    EPA issues regulations designed to prevent accidental releases into 
the environment of hazardous materials at fixed facilities, codified at 
40 CFR Part 68. These regulations include requirements for risk 
management plans that must include a hazard assessment, a program for 
preventing accidental releases, and an emergency response program to 
mitigate the consequences of accidental releases. In addition, EPA 
regulations applicable to hazardous materials 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 final rule will impose no 
new costs of compliance with HMR requirements. This final rule will 
reduce the overall costs of compliance for companies that operate rail 
tank car unloading facilities. I hereby certify that this final rule 
will not have a significant economic impact on a substantial number of 
small businesses.
    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

E. Paperwork Reduction Act

    This final rule 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 contained in the heading of 
this document can be used to cross-

[[Page 61937]]

reference this action with the Unified Agenda.

G. Unfunded Mandates Reform Act

    This final rule 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 final rule. An environmental assessment has been 
placed in the public docket for this rulemaking.

I. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

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.

0
In consideration of the foregoing, we are amending 49 CFR Parts 171, 
173, 174, 175, 176, 177, and 178 as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for Part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

0
2. Section 171.1 is revised to read as follows:


Sec.  171.1  Applicability of Hazardous Materials 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, as the 
Secretary considers appropriate. 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 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 
Administrator issues the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171 through180) 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 
each person who offers a hazardous material for transportation in 
commerce, causes a hazardous material to be transported in commerce, or 
transports a hazardous material in commerce and who performs or is 
responsible for performing a pre-transportation function, including 
each person performing pre-transportation functions under contract with 
any department, agency, or instrumentality of the executive, 
legislative, or judicial branch of the Federal government. Pre-
transportation functions include, but are not limited to, the 
following:
    (1) Determining the hazard class of a hazardous material.
    (2) Selecting a hazardous materials packaging.
    (3) Filling a hazardous materials packaging, including a bulk 
packaging.
    (4) Transloading a hazardous material at an intermodal transfer 
facility from one bulk packaging to another bulk packaging for purposes 
of continuing the movement of the hazardous material in commerce.
    (5) Securing a closure on a filled or partially filled hazardous 
materials package or container or on a package or container containing 
a residue of a hazardous material.
    (6) Marking a package to indicate that it contains a hazardous 
material.
    (7) Labeling a package to indicate that it contains a hazardous 
material.
    (8) Preparing a shipping paper.
    (9) Providing and maintaining emergency response information.
    (10) Reviewing a shipping paper to verify compliance with the HMR 
or international equivalents.
    (11) For each person importing a hazardous material into the United 
States, providing the shipper with timely and complete information as 
to the HMR requirements that will apply to the transportation of the 
material within the United States.

[[Page 61938]]

    (12) Certifying that a hazardous material is in proper condition 
for transportation in conformance with the requirements of the HMR.
    (13) Loading, blocking, and bracing a hazardous materials package 
in a freight container or transport vehicle.
    (14) Segregating a hazardous materials package in a freight 
container or transport vehicle from incompatible cargo.
    (15) Selecting, providing, or affixing placards for a freight 
container or 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, or, in the 
case of a rail car, until the car arrives at a private track or siding. 
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 with respect to that particular package. 
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 Sec.  
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 for the purpose of transporting it, 
including blocking and bracing a hazardous materials package in a 
freight container or transport vehicle, and segregating a hazardous 
materials package in a freight container or transport vehicle from 
incompatible cargo, when performed by carrier personnel or in the 
presence of carrier personnel. For a bulk packaging, loading incidental 
to movement is filling the packaging with a hazardous material for the 
purpose of transporting it when performed by carrier personnel or in 
the presence of carrier personnel (except as delegated at Sec.  1.46(t) 
of this title), including transloading.
    (3) Unloading incidental to movement of a hazardous material. 
Removing a packaged or containerized hazardous material from a 
transport vehicle, aircraft, or vessel, or, for a bulk packaging, 
emptying a hazardous material from the bulk packaging after the 
hazardous material has been delivered to the consignee and prior to the 
delivering carrier's departure from the consignee's facility or 
premises or, in the case of a private motor carrier, while the driver 
of the motor vehicle from which the hazardous material is being 
unloaded immediately after movement is completed is present during the 
unloading operation. (Emptying a hazardous material from a bulk 
packaging while the packaging is on board a vessel is subject to 
separate regulations as delegated at Sec.  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 by any person 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 with respect to that particular package. 
Storage incidental to movement includes rail cars containing hazardous 
materials that are stored on track that does not meet the definition of 
``private track or siding'' in Sec.  171.8 of this subchapter, even if 
those cars have been delivered to the destination shown on the shipping 
document.
    (d) Functions not subject to the requirements of the HMR. The 
following are examples of activities to which the HMR do not apply:
    (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 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 following delivery of the hazardous material 
by the carrier to its destination and departure from the consignee's 
premises of the carrier's personnel or, in the case of a private 
carrier, departure of the driver from the unloading area.
    (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, or, in the case of a rail car, storage of a rail car on private 
track.
    (4) Rail and motor vehicle movements of a hazardous material 
exclusively within a contiguous facility boundary where public access 
is restricted, except to the extent that the movement is on or crosses 
a public road or is on track that is part of the general railroad 
system of transportation, unless access to the public road is 
restricted by signals, lights, gates, or similar controls.
    (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 
non-commercial 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 
pre-transportation or transportation 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. (1) Each 
facility at which pre-transportation or transportation 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. 5125.
    (2) Under Sec.  5125, a non-Federal law or regulation may be 
preempted, unless otherwise authorized by another Federal statute, if--
    (i) Complying with both the non-Federal law or regulation and a

[[Page 61939]]

requirement of Federal hazardous materials transportation law or the 
HMR is not possible;
    (ii) 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
    (iii) 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--
    (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 these documents;
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (E) 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.
    (3) Preemption determination procedures are in subpart C of part 
107 of this chapter.
    (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 Sec.  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.

0
3. Section 171.2 is revised to read as follows:


Sec.  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 or activity prescribed in part 178, 179, or 
180 of this subchapter, an approval issued under this subchapter, 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. 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 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

[[Page 61940]]

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.

0
4. In Sec.  171.8, the definition for ``sheathing'' is removed; 
definitions for ``carrier,'' ``person,'' and ``private track or private 
siding,'' are revised; and definitions for ``Administrator,'' 
``Associate Administrator,'' ``commerce,'' ``consignee,'' ``hazmat,'' 
``HMR,'' ``loading incidental to movement,'' ``movement,'' ``pre-
transportation function.'' ``Secretary,'' ``storage incidental to 
movement,'' ``transloading,'' ``transportation or transport,'' 
``transportation facility,'' and ``unloading incidental to movement'' 
are added in alphabetical order, to read as follows:


Sec.  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 within a single state; 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 by carrier personnel 
or in the presence of carrier personnel of packaged or containerized 
hazardous material onto a transport vehicle, aircraft, or vessel for 
the purpose of transporting it, including the loading, blocking and 
bracing a hazardous materials package in a freight container or 
transport vehicle, and segregating a hazardous materials package in a 
freight container or transport vehicle from incompatible cargo. For a 
bulk packaging, loading incidental to movement means filling the 
packaging with a hazardous material for the purpose of transporting it. 
Loading incidental to movement includes transloading.
* * * * *
    Movement means the physical transfer of a hazardous material from 
one geographic location to another by rail car, aircraft, motor 
vehicle, or vessel.
* * * * *
    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 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.
    (3) Filling a hazardous materials packaging, including a bulk 
packaging.
    (4) Transloading a hazardous material at an intermodal transfer 
facility from one bulk packaging to another bulk packaging for purposes 
of continuing the movement of the hazardous material in commerce.
    (5) Securing a closure on a filled or partially filled hazardous 
materials package or container or on a package or container containing 
a residue of a hazardous material.
    (6) Marking a package to indicate that it contains a hazardous 
material.
    (7) Labeling a package to indicate that it contains a hazardous 
material.
    (8) Preparing a shipping paper.
    (9) Providing and maintaining emergency response information.
    (10) Reviewing a shipping paper to verify compliance with the HMR 
or international equivalents.
    (11) For each person importing a hazardous material into the United 
States, providing the shipper with timely and complete information as 
to the HMR requirements that will apply to the transportation of the 
material within the United States.
    (12) Certifying that a hazardous material is in proper condition 
for transportation in conformance with the requirements of the HMR.
    (13) Loading, blocking, and bracing a hazardous materials package 
in a freight container or transport vehicle.
    (14) Segregating a hazardous materials package in a freight 
container or transport vehicle from incompatible cargo.
    (15) Selecting, providing, or affixing placards for a freight 
container or transport vehicle to indicate that it contains a hazardous 
material.
* * * * *
    Private track or Private siding means: (i) Track located outside of 
a carrier's right-of-way, yard, or terminals where the carrier does not 
own the rails, ties, roadbed, or right-of-way, or
    (ii) Track leased by a railroad to a lessee, where the lease 
provides for, and actual practice entails, exclusive use of that 
trackage by the lessee and/or a general system railroad for purpose of 
moving only cars shipped to or by the lessee, and where the lessor 
otherwise exercises no control over or responsibility for the trackage 
or the cars on the trackage.
* * * * *
    Secretary means the Secretary of Transportation.
* * * * *
    Storage incidental to movement means storage of a transport 
vehicle, freight container, or package containing a hazardous material 
by any person 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

[[Page 61941]]

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 with respect to that particular package. 
Storage incidental to movement includes rail cars containing hazardous 
materials, even if they have been delivered to the destination 
indicated on the shipping document, except those stored on private 
track.
* * * * *
    Transloading means the transfer of a hazardous material at an 
intermodal transfer facility from one bulk packaging to another for 
purposes of continuing the movement of the hazardous material in 
commerce.
    Transportation or transport means the movement of property and 
loading, unloading, or storage incidental to that movement.
* * * * *
    Unloading incidental to movement means removing a packaged or 
containerized hazardous material from a transport vehicle, aircraft, or 
vessel or, for a bulk packaging, emptying a hazardous material from the 
bulk packaging after the hazardous material has been delivered to the 
consignee and prior to the delivering carrier's departure from the 
consignee's facility or premises or, in the case of a private motor 
carrier, while the driver of the motor vehicle from which the hazardous 
material is being unloaded immediately after movement is completed is 
present during the unloading operation. (Emptying a hazardous material 
from a bulk packaging while the packaging is on board a vessel is 
subject to separate regulation as delegated at Sec.  1.46(t) of this 
title.) Unloading incidental to movement includes transloading.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
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

Sec.  173.1  [Amended]

0
6. In Sec.  173.1, paragraph (c) is removed and paragraph (d) is 
redesignated as new paragraph (c).


0
7. Section 173.30 is revised to read as follows:


Sec.  173.30  Loading and unloading of transport vehicles.

    A person who is subject to the loading and unloading regulations in 
this subchapter must load or unload hazardous materials into or from a 
transport vehicle or vessel in conformance with the applicable loading 
and unloading requirements of parts 174, 175, 176, and 177 of this 
subchapter.


0
8. Section 173.31 is amended by adding new paragraph (g) to read as 
follows:


Sec.  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) The unloader must secure access to the track to prevent entry 
by other rail equipment, including motorized service vehicles. Derails, 
lined and blocked switches, portable bumper blocks, or other equipment 
that provides an equivalent level of security may be used to satisfy 
this requirement.
    (2) 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.''
    (3) 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.


Sec. Sec.  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]


0
9. In addition, in Part 173, the word ``movement'' is revised to read 
``shifting'' in each of the following places:
0
a. Section 173.3(c)(2);
0
b. Section 173.6(b)(1) and (b)(3);
0
c. Section 173.24a(a)(3);
0
d. Section 173.166(e)(4)(iii);
0
f. Section 173.171 (d);
0
g. Section 173.181(a)(2);
0
h. Section 173.189(b) and (d)(4)(i);
0
i. Section 173.335(c); and
0
j. Section 173.416(f).


0
10. In addition, in Part 173, the term ``freedom of movement'' is 
revised to read ``free moving'' in the table in Sec.  173.62(c) under 
Packing Instruction 131, each time it appears.

Sec. Sec.  173.185, 173.219, and 173.308  [Amended]

0
11. In addition, in Part 173, the word ``movement'' is revised to read 
``moving'' in each of the following places:
0
a. Section 173.185(e)(4), (g)(1), and (g)(2);
0
b. Section 173.219(b)(3); and
0
c. Section 173.308(a)(4).

PART 174--CARRIAGE BY RAIL

0
12. The authority citation for Part 174 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR Part 1.53


0
13. In Sec.  174.67, paragraphs (a)(1) through (a)(3) are revised, 
paragraph (a)(4) is redesignated as paragraph (a)(6), new paragraphs 
(a)(4) and (a)(5) are added, paragraphs (i) and (j) are revised, 
paragraph (k) is redesignated paragraph (l), and a new paragraph (k) is 
added, to read as follows:


Sec.  174.67  Tank car unloading.

    (a) For transloading operations, the following rules must be 
observed:
    (1) Unloading operations must be performed by reliable persons 
properly instructed in unloading hazardous materials and made 
responsible for careful compliance with this part.
    (2) The unloader must apply the handbrake and block at least one 
wheel to prevent movement in any direction. If multiple tank cars are 
coupled together, sufficient hand brakes must be set and wheels blocked 
to prevent movement in both directions.
    (3) The unloader must secure access to the track to prevent entry 
by other rail equipment, including motorized service vehicles. Derails, 
lined and blocked switches, portable bumper blocks, or other equipment 
that provides an equivalent level of security may be used to satisfy 
this requirement.
    (4) The unloader must place caution signs on the track or on the 
tank cars to warn persons approaching the cars from the open end of the 
track that a tank car is connected to unloading equipment. The caution 
signs must be of metal or other durable material, rectangular, at least 
30 cm. (12 inches) high by 38 cm. (15 inches) wide, and bear the word, 
``STOP''. The word ``STOP'' must

[[Page 61942]]

appear in letters at least 10 cm. (3.9 inches) high. The letters must 
be white on a blue background. Additional words, such as ``Tank Car 
Connected'' or ``Crew at Work'' may also appear.
    (5) The unloading facility operator must maintain written safety 
procedures (such as those it may already be required to maintain 
pursuant to the Department of Labor's Occupational Safety and Health 
Administration requirements in 29 CFR 1910.119 and 1910.120) in a 
location where they are immediately available to hazmat employees 
responsible for tank car unloading.
* * * * *
    (i) Throughout the entire period of unloading and while a tank car 
has unloading equipment attached, the facility operator must assure 
that the tank car is:
    (1) Attended by a designated hazmat employee who is physically 
present and who has an unobstructed view of the unloading operation; or
    (2) Monitored by a signaling system (e.g., video system, sensing 
equipment, or mechanical equipment) that is observed by a designated 
hazmat employee located either in the immediate area of the tank car or 
at a remote location within the facility, such as a control room. The 
signaling system must--
    (i) Provide a level of surveillance equivalent to that provided in 
subparagraph (1) of this paragraph (i); and
    (ii) Provide immediate notification to a designated hazmat employee 
of any system malfunction or other emergency so that, if warranted, 
responsive actions may be initiated immediately.
    (j) Attendance is not required when piping is attached to a top 
outlet of a tank car, equipped with a protective housing required under 
Sec.  179.100-12 of this subchapter, for discharge of lading under the 
following conditions:
    (1) All valves are tightly closed.
    (2) The piping is not connected to hose or other unloading 
equipment and is fitted with a cap or plug of appropriate material and 
construction.
    (3) The piping extends no more than 15.24 centimeters (6 inches) 
from the outer edge of the protective housing.
    (k) In the absence of the unloader, a tank car may stand with 
unloading connections attached when no product is being transferred 
under the following conditions:
    (1) The facility operator must designate an employee responsible 
for on-site monitoring of the transfer facility. The designated 
employee must be made familiar with the nature and properties of the 
product contained in the tank car; procedures to be followed in the 
event of an emergency; and, in the event of an emergency, have the 
ability and authority to take responsible actions.
    (2) When a signaling system is used in accordance with paragraph 
(i) of this section, the system must be capable of alerting the 
designated employee in the event of an emergency and providing 
immediate notification of any monitoring system malfunction. If the 
monitoring system does not have self-monitoring capability, the 
designated employee must check the monitoring system hourly for proper 
operation.
    (3) The tank car and facility shutoff valves must be secured in the 
closed position.
    (4) Brakes must be set and wheels locked in accordance with 
paragraph (a)(2) of this section.
    (5) Access to the track must be secured in accordance with 
paragraph (a)(3) of this section.
* * * * *

Sec. Sec.  174.110, 174.112, and 174.115  [Amended]

0
14. In addition, in Part 174, the word ``movement'' is revised to read 
``shifting'' in each of the following places:
0
a. Section 174.110;
0
b. Section 174.112(b) and (c)(3) each time it appears; and
0
c. Section 174.115(a) and (b)(3) each time it appears.

PART 175--CARRIAGE BY AIRCRAFT

0
15. The authority citation for Part 175 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec.  175.81  [Amended]

0
16. In Sec.  175.81(a), the word ``movement'' is revised to read 
``shifting''.

PART 176--CARRIAGE BY VESSEL

0
17. The authority citation for Part 176 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. Sec.  176.69, 176.76, 176.78, 176.93, 176.116, 176.132, 176.168, 
and 176.200  [Amended]

0
18. In Part 176, the word ``movement'' is revised to read ``shifting'' 
in each of the following places:
0
a. Section 176.69(d);
0
b. Section 176.76(a)(2) each time it appears;
0
c. Section 176.116(d);
0
e. Section 176.132(c); and
0
f. Section 176.200(b) and (c) each time it appears.

0
19. In Part 176, the word ``movement'' is revised to read ``motion'' in 
Sec.  176.93(a)(1).

0
20. In Part 176, the word ``movement'' is revised to read ``moving'' in 
each of the following places:
0
a. Section 176.78(f)(8); and
0
b. Section 176.168(g).

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
21. The authority citation for Part 177 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. Sec.  177.834, 177.840, and 177.870  [Amended]

0
22. In Part 177, the word ``movement'' is revised to read ``shifting'' 
in each of the following places:
0
a. Section 177.834(a);
0
b. Section 177.840(b)(3); and
0
c. Section 177.870(e).

PART 178--SPECIFICATIONS FOR PACKAGINGS

0
23. The authority citation for Part 178 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. Sec.  178.601, 178.704  [Amended]

0
24. In Part 178, the word ``movement'' is revised to read ``moving'' in 
Sec.  178.601(g)(1)(i)(D), (g)(1)(ii), and (g)(4)(v).

0
25. In Part 178, the word ``movement'' is revised to read ``motion'' in 
Sec.  178.704(d)(3).

    Issued in Washington, DC on October 22, 2003 under authority 
delegated in 49 CFR Part 1.
Elaine E. Joost,
Acting Deputy Administrator.
[FR Doc. 03-27057 Filed 10-29-03; 8:45 am]
BILLING CODE 4910-60-P