[Federal Register Volume 69, Number 235 (Wednesday, December 8, 2004)]
[Rules and Regulations]
[Pages 70902-70904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26852]


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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; delay of effective date.

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SUMMARY: On October 30, 2003, RSPA published a final rule (68 FR 61905) 
to clarify the applicability of the Hazardous Materials Regulations to 
loading, unloading, and storage operations. RSPA is delaying the 
effective date of the final rule from January 1, 2005 until June 1, 
2005.

DATES: The effective date of the final rule amending 49 CFR parts 171, 
173, 174, 175, 176, 177, and 178 published at 68 FR 61905 on October 
30, 2003, and delayed at 69 FR 30588 on May 28, 2004, is further 
delayed until June 1, 2005.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On October 30, 2003, the Research and Special Programs 
Administration (RSPA, we) published a final rule to clarify the 
applicability of the Hazardous Materials Regulations (HMR; 49 CFR parts 
171-180) to specific functions and activities, including hazardous 
materials loading and unloading operations and storage of hazardous 
materials during transportation (68 FR 61906). The final rule amended 
the HMR to incorporate the following new definitions and provisions:
     We defined a new term--``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.
     We defined ``transportation'' to mean the movement of 
property and loading, unloading, or storage incidental to the movement. 
This definition is consistent with the definition of ``transportation'' 
in Federal hazardous materials transportation law (Federal hazmat law; 
49 U.S.C. 5101 et seq.). Transportation in commerce begins when a 
carrier takes physical possession of a hazardous material for the 
purpose of transporting it and continues until delivery of the package 
to its consignee or destination as evidenced by the shipping 
documentation under which the hazardous material is moving, such as 
shipping papers, bills of lading, freight orders, or similar 
documentation.
     We defined ``movement'' to mean the physical transfer of a 
hazardous material from one geographic location to another by rail car, 
aircraft, motor vehicle, or vessel.
     We defined ``loading incidental to movement'' to mean the 
loading by carrier personnel or in the presence of carrier personnel of 
packaged or containerized hazardous material onto a transport vehicle, 
aircraft, or vessel for the purpose of transporting it. For a bulk 
packaging, ``loading incidental to movement'' means the filling of the 
packaging with a hazardous material by carrier personnel or in the 
presence of carrier personnel for the purpose of transporting it. 
Loading incidental to movement is regulated under the HMR.
     We defined ``unloading incidental to movement'' to mean 
the removal of a packaged or containerized hazardous material from a 
transport vehicle, aircraft, or vessel or the emptying of a hazardous 
material from a bulk packaging after a hazardous material has been 
delivered to a consignee and prior to the delivering carrier's 
departure from the consignee facility or premises. Unloading incidental 
to movement is subject to regulation under the HMR. Unloading by a 
consignee after the delivering carrier has departed the facility is not 
unloading incidental to movement and not regulated under the HMR.

[[Page 70903]]

     We defined ``storage incidental to movement'' to mean 
storage by any person of a transport vehicle, freight container, or 
package containing a hazardous material between the time that a carrier 
takes physical possession of the hazardous material for the purpose of 
transporting it until the package containing the hazardous material is 
physically delivered to the destination indicated on a shipping 
document. However, in the case of railroad shipments, even if a 
shipment has been delivered to the destination shown on the shipping 
document, if the track is under the control of a railroad carrier or 
track is used for purposes other than moving cars shipped to or from 
the lessee, storage on the track is storage incidental to movement. We 
revised the definition of ``private track or private siding'' to make 
this clear. Storage at a shipper facility prior to a carrier exercising 
control over or taking possession of the hazardous material or storage 
at a consignee facility after a carrier has delivered the hazardous 
material is not storage incidental to movement and is not regulated 
under the HMR.
     We amended 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 packagings 
represented as qualified for use in the transportation of hazardous 
materials; (2) pre-transportation functions; and (3) transportation 
functions (movement of a hazardous material and loading, unloading, and 
storage incidental to the movement). Non-regulated functions include: 
(1) Rail and motor vehicle movements of a hazardous material solely 
within a contiguous facility where public access is restricted; (2) 
transportation of a hazardous material in a transport vehicle or 
conveyance operated by a Federal, State, or local government employee 
solely for government purposes; (3) transportation of a hazardous 
material by an individual for non-commercial purposes in a private 
motor vehicle; and (4) any matter subject to U.S. postal laws and 
regulations.
     We amended 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. 
The final rule was intended to clarify the applicability of the HMR to 
specific functions and activities. It is important to note that 
facilities at which pre-transportation or transportation functions are 
performed must comply with Occupational Safety and Health 
Administration (OSHA) and state or local regulations applicable to 
physical structures--for example, noise and air quality control 
standards, emergency preparedness, fire codes, and local zoning 
requirements. Facilities may also have to comply with applicable State 
and local regulations for hazardous materials handling and storage 
operations. Facilities at which pre-transportation or transportation 
functions are performed may also be subject to Environmental Protection 
Agency (EPA) and OSHA regulations. For example, facilities may be 
subject to EPA's risk management; community right-to-know; hazardous 
waste tracking and disposal; and spill prevention, control and 
countermeasure requirements, and OSHA's process safety management and 
emergency preparedness requirements. Similarly, facilities at which 
pre-transportation functions are performed may also be subject to 
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives 
(ATF) concerning the handling of explosives.

II. Appeals of the Final Rule

    We received 14 appeals of the final rule from Ag Processing Inc. 
(AGP); Akzo Nobel (Akzo); Archer Daniels Midland Company (Archer 
Daniels); the Association of American Railroads (AAR); the Dangerous 
Goods Advisory Council (DGAC); the Dow Chemical Company (Dow); DuPont; 
Eastman Chemical Company (Eastman); the Institute of Makers of 
Explosives (IME); Norfolk Southern Corporation (Norfolk Southern); the 
Spa and Pool Chemical Manufacturers' Association (SPCMA); the Sulphur 
Institute; the Utility Solid Waste Activities Group (USWAG); and 
Vermont Railway, Inc. (Vermont Railway).
    Appellants raised a number of issues related to the consistency of 
the final rule with Federal hazardous materials transportation law; 
state and local regulation of hazardous materials facilities; the 
relationship of the HMR to regulations promulgated by OSHA, EPA, and 
ATF; the definitions adopted in the final rule for ``unloading 
incidental to movement,'' ``transloading,'' and ``storage incidental to 
movement;'' and the consistency of the HM-223 final rule with security 
regulations adopted in a final rule issued under Docket No. HM-232.

III. Delay of Effective Date

    On May 28, 2004, we published a final rule to delay the effective 
date of the October 30, 2003 final rule until January 1, 2005 (69 FR 
30588). In the May 28, 2004 final rule, we explained that the issues 
raised by appellants concerning the October 30, 2003 final rule were 
detailed and complex and that delaying the effective date would provide 
us with sufficient time to fully address the issues raised by the 
appellants and to coordinate the appeals document fully with the other 
Federal agencies that assisted us in developing the HM-223 final rule. 
Unfortunately, we have not been able to coordinate decisions concerning 
the appeals to the October 30, 2003 final rule as expeditiously as we 
had hoped. Therefore, we have decided to delay the effective date of 
the final rule until June 1, 2005.

IV. Continued Applicability of the HMR

    The October 30, 2003 final rule is based on long-standing 
administrative determinations as to the applicability of the HMR to 
specific functions and activities. These administrative determinations 
remain in effect even though the effective date of the HM-223 final 
rule is delayed. Therefore, notwithstanding the action taken in this 
final rule to delay the effective date of the October 30, 2003 final 
rule until June 1, 2005, you may generally rely on the preamble 
discussion for the October 30, 2003 final rule for guidance as to how 
the HMR apply to functions and activities related to the transportation 
of hazardous materials in commerce; the relationship of the HMR to 
standards and regulations issued by OSHA, EPA and ATF; and the 
preemption provisions of Federal hazmat law as they apply to non-
Federal laws and regulations applicable to the transportation of 
hazardous materials in commerce. Note, however, that because the 
amendments to Sec.  174.67 of the HMR affecting rail tank car unloading 
operations conducted by consignees will not become effective until June 
1, 2005, the requirements in Sec.  174.67 continue to apply to any 
person unloading hazardous materials from a rail tank car. Persons 
holding exemptions applicable to any of the requirements in Sec.  
174.67 must continue to maintain such exemptions in effect until June 
1, 2005.

[[Page 70904]]

V. Effect of Delay on Revised Incident Reporting Requirements

    On December 3, 2003 (68 FR 67745), we published a final rule under 
docket HM-229 revising the incident reporting requirements in 
Sec. Sec.  171.15 and 171.16 of the HMR and the Hazardous Materials 
Incident Report Form. On May 26, 2004 (69 FR 30113), we published a 
final rule making several corrections to the December 3, 2003 final 
rule and extending its effective date until January 1, 2005. We 
extended the effective date of the incident reporting final rule to 
provide sufficient time for development and testing of the software to 
enable electronic reporting of incidents and for outreach to the 
regulated community.
    Several persons have suggested that, because the HM-229 final rule 
references definitions adopted in the HM-223 final rule, the effective 
date for the HM-229 final rule must coincide with the effective date 
for the HM-223 final rule. We do not agree. As stated above, the HM-223 
final rule adopts definitions that are based on long-standing 
administrative determinations as to the applicability of the HMR to 
specific functions and activities. These administrative determinations 
remain in effect even though the effective date of the HM-223 final 
rule is delayed.
    The HM-229 final rule expands the incident reporting requirements 
to each person who is in physical control of a hazardous material while 
it is being transported in commerce. Generally, the person in physical 
control of the hazardous material during transportation will be either 
the carrier or the person having physical control of the hazardous 
material for the time that it may be stored during transportation. The 
HM-229 final rule states, ``Consistent with the definitions adopted in 
the HM-223 final rule, storage incidental to movement is storage by any 
person of a transport vehicle, freight container, or package containing 
a hazardous material between the time that a carrier takes physical 
possession of the hazardous material until the package containing the 
hazardous material is physically delivered to the destination indicated 
on a shipping document.'' (68 FR 67751) The HM-223 definition for 
``storage incidental to movement'' is consistent with previously issued 
preemption determinations and letters of clarification concerning the 
applicability of the HMR to storage operations (see preamble discussion 
to the NPRM published under docket HM-223 on June 14, 2001; 66 FR 
32434-36). Thus, notwithstanding the delay in the effective date of the 
HM-223 final rule, the incident reporting requirements adopted in HM-
229 apply to persons in physical possession of a hazardous material 
between the time that the hazardous material is offered for 
transportation to a carrier and the time it reaches its intended 
destination and is accepted by the consignee `` that is, to carriers 
and to owners or operators of facilities at which the hazardous 
material may be stored during transportation.

    Issued in Washington, DC, on December 1, 2004, under authority 
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 04-26852 Filed 12-7-04; 8:45 am]
BILLING CODE 4910-60-P