{"operation":"document","citation":"68 FR 61906","title":"Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage","source_type":"rulemaking","agency":"Research and Special Programs Administration","status":"historical","official":true,"published_on":"2003-10-30","effective_on":"2004-10-01","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.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-03-27057.json","markdown":"https://regulus.evalyn.ai/document/federal-register-03-27057.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-03-27057","source_url":"https://www.federalregister.gov/documents/2003/10/30/03-27057/applicability-of-the-hazardous-materials-regulations-to-loading-unloading-and-storage","body":"Federal Register, Volume 68 Issue 210 (Thursday, October 30, 2003) [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] [[Page 61905]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- Research and Special Programs Administration ----------------------------------------------------------------------- 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 [[Page 61906]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 [[Page 61907]] 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 [[Page 61908]] 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- [[Page 61909]] 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 car","truncated":true,"body_characters":272301}