{"operation":"document","citation":"70 FR 20018","title":"Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2005-04-15","effective_on":"2005-06-01","summary":"On October 30, 2003, the Research and Special Programs Administration, predecessor agency to PHMSA, published a final rule to clarify the applicability of the Hazardous Materials Regulations to functions and activities related to the safe and secure transportation of hazardous materials in commerce, including loading, unloading, and storage operations. In response to appeals submitted by persons affected by the final rule, this final rule amends certain regulations and makes editorial corrections.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-05-7394.json","markdown":"https://regulus.evalyn.ai/document/federal-register-05-7394.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-05-7394","source_url":"https://www.federalregister.gov/documents/2005/04/15/05-7394/applicability-of-the-hazardous-materials-regulations-to-loading-unloading-and-storage","body":"Federal Register, Volume 70 Issue 72 (Friday, April 15, 2005) [Federal Register Volume 70, Number 72 (Friday, April 15, 2005)] [Rules and Regulations] [Pages 20018-20034] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 05-7394] [[Page 20017]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171 and 174 Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage; Final Rule Federal Register / Vol. 70, No. 72 / Friday, April 15, 2005 / Rules and Regulations [[Page 20018]] DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171 and 174 [Docket No. PHMSA-98-4952 (HM-223)] RIN 2137-AC68 Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule; response to appeals. ----------------------------------------------------------------------- SUMMARY: On October 30, 2003, the Research and Special Programs Administration, predecessor agency to PHMSA, published a final rule to clarify the applicability of the Hazardous Materials Regulations to functions and activities related to the safe and secure transportation of hazardous materials in commerce, including loading, unloading, and storage operations. In response to appeals submitted by persons affected by the final rule, this final rule amends certain regulations and makes editorial corrections. DATES: This final rule is effective June 1, 2005. FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration; or Donna O'Berry (202) 366-4400, Office of the Chief Counsel, Pipeline and Hazardous Materials Safety Administration. SUPPLEMENTARY INFORMATION: I. Background On October 30, 2003, the Research and Special Programs Administration (RSPA), the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA), 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). As discussed more fully in the NPRM issued under this docket (June 14, 2001; 66 FR 32430), the purpose of the rulemaking was to address uncertainty 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 activities and operations related to the transportation of hazardous materials in commerce. In addition, the rulemaking was intended to address uncertainty concerning the extent to which state and local agencies may regulate hazardous materials safety, particularly at facilities where the distinctions among pre- transportation, transportation, and non-transportation operations are not clearly articulated. Clarifying the applicability of the HMR helps to eliminate uncertainty on the part of the regulated public, thereby facilitating compliance and enhancing hazardous materials safety and security. Clarifying the applicability of the HMR also has the beneficial effect of reducing or eliminating confusion concerning regulations promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Environmental Protection Agency (EPA), and Occupational Safety and Health Administration (OSHA) that apply to materials that are also covered by the HMR. To the extent that DOT does not regulate in a particular area, ATF and OSHA are free to regulate to the full extent of their regulatory authority. However, where DOT does regulate in a particular area, ATF and OSHA may have limited authority to regulate in the same area. Moreover, facilities at which functions are performed in accordance with the HMR may also be subject to applicable standards and regulations issued by EPA to implement statutorily authorized programs. In addition, clarifying the applicability of the HMR helps states, local governments, and tribal governments to determine areas where they may regulate without being subject to preemption under Federal hazardous materials transportation law. 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, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Further, Federal hazmat law authorizes the Secretary to apply the regulations 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 a packaging or container (or component thereof) that is represented, marked, certified, or sold as qualified for use in the transportation of hazardous materials in commerce. 49 U.S.C. 5103(b)(1)(A). The law authorizes the Secretary to prescribe regulations governing any safety aspect of the transportation of hazardous materials in commerce that the Secretary considers appropriate. 49 U.S.C. 5103(b)(1)(B). Federal hazmat law defines ``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. 49 U.S.C. 5102(1). The law defines ``transportation'' to mean ``the movement of property and loading, unloading, or storage incidental to the movement.'' 49 U.S.C. 5102(12). The statute does not define with specificity the particular activities that fall within the terms ``loading incidental to movement,'' ``unloading incidental to movement,'' or ``storage incidental to movement'' used in the statutory definition of ``transportation.'' It is clear that Federal hazmat law directs the Secretary of Transportation to address the safety and security of hazardous materials transportation, that is, the actual movement of hazardous materials in commerce and the activities related to that movement that are performed by persons who transport hazardous materials in commerce. Federal hazmat law also recognizes the critical safety impact of activities performed in advance of transportation by persons who cause the transportation of hazardous materials in commerce or by persons who manufacture and maintain containers that are represented or sold as qualified for use for such transportation. In conformance with Federal hazmat law, the HMR currently impose regulatory requirements on persons who: (1) Perform functions in advance of transportation to prepare hazardous materials for transportation; (2) perform transportation (i.e., movement and incidental loading, unloading, and storage) functions; or (3) manufacture or maintain containers that are represented or sold as qualified for use for transportation of hazardous materials in commerce. Functions performed in advance to prepare hazardous materials for transportation--now called ``pre-transportation functions''-- include determining the hazard class of a material, preparing a shipping paper, providing emergency response information, selecting an appropriate packaging, filling a packaging, marking and labeling a package, and placarding a transport vehicle. ``Transportation functions'' include the movement of a hazardous material by rail car, motor vehicle, aircraft, or vessel and certain aspects of loading, unloading, and storage operations that are ``incidental'' to such movement. Under the HMR, training requirements apply to persons [[Page 20019]] who perform pre-transportation and transportation functions and to persons who manufacture or maintain packagings certified or sold as qualified for use in transportation in commerce. We have issued a number of interpretations, inconsistency rulings, and preemption determinations in response to requests from the public for clarification concerning 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 were areas of particular confusion and concern. Although the interpretations and administrative determinations we have issued are publicly available, the regulated industry, government agencies, and non-Federal governments had not been consistently aware of their existence and availability. Further, some of the interpretations and decisions we have issued needed to be revised in light of changes in the Secretary of Transportation's and other Federal agencies' statutory authority. In the October 30, 2003 final rule, we consolidated, clarified, and revised, where necessary, these interpretations and administrative decisions and made them part of the HMR. 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 was defined in the October 30, 2003 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 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. 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, we defined ``loading incidental to movement'' to mean 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 is not regulated under the HMR. 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 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 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 [[Page 20020]] preparedness requirements. Similarly, facilities at which pre- transportation functions are performed may also be subject to ATF regulations concerning the handling of explosives. In particular, the October 30, 2003 final rule clarified that the exception in 40 U.S.C. 845(a)(1), which excepts from ATF regulation ``any aspect of the transportation of explosive materials * * * which are regulated by the United States Department of Transportation'', does not apply in situations where facility personnel perform pre-transportation functions with respect to preparing explosives for transportation. 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. A number of appellants indicated an intention to file additional information to supplement their appeals. To date, however, we have received no supplemental information. The October 30, 2003 final rule was to become effective on October 1, 2004. On May 28, 2004, we published a document delaying the effective date of the final rule until January 1, 2005 (69 FR 30588). On December 8, 2004, we published a document further delaying the effective date until June 1, 2005 (69 FR 70902). Delaying the effective date provided 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. Specific issues raised by the appellants are addressed in detail below. III. Appeals Granted A. Transloading The October 30, 2003 final rule defined a new term-- ``transloading.'' Transloading was defined as 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. In the October 30, 2003 final rule, transloading is identified as both a pre-transportation and a transportation function. A number of appellants expressed concern that the final rule's treatment of ``transloading'' was inconsistent and could lead to confusion as to whether storage of hazardous materials at a transloading facility is considered storage incidental to movement and subject to HMR requirements. ``HM-223 is inconsistent in its treatment of transloading * * * [PHMSA should] clarify transloading as a transportation function. The distinction between transportation and pre-transportation functions is particularly important with respect to storage issues since storage incidental to transportation is regulated by [PHMSA].'' (Akzo) Another appellant notes that ``designating transloading as a pre-transportation function would be inconsistent with [PHMSA]'s approach to other intermodal facilities. * * * The similarities between transloading facilities and other intermodal facilities are apparent. In both cases, the facilities typically are carrier owned but operated by contractors or licensees pursuant to agreements with railroads. In both cases, the materials being transported are in the midst of the transportation process, with origin and destination points at different locations.'' (AAR) One appellant suggests that we add to the definition of ``storage incidental to movement'' an indication that ``storage incidental to movement includes storage of transport vehicles and packages at transloading facilities.'' (IME) We agree with the appellants that storage of hazardous materials at transloading facilities is storage incidental to movement and subject to regulations applicable to such storage under the HMR. As one appellant notes, in 1995 and 2001, we found that Federal hazardous materials transportation law preempts state requirements prohibiting transloading operations in New York and Missouri (December 6, 1995, 60 FR 62527; and July 6, 2001, 66 FR 37089). An explicit determination in the HMR that storage at transloading facilities is considered storage incidental to movement for purposes of the HMR is, therefore, consistent with previously published administrative determinations on the issue. Appellants also ask us to consider revising the definition of ``transloading'' to cover transloading operations that take place at facilities other than intermodal transfer facilities. ``[PHMSA should] remove the words `at an intermodal facility' from its definition of transloading. Transloading does occur at consignee facilities. * * * It is safer and more efficient to perform this transloading at a plant site than to transport these packages to an intermodal facility.'' (Akzo Nobel) We agree that the location at which transloading occurs should not dictate whether the operation is regulated as a transportation function and are modifying the definition in this final rule. Therefore, the Akzo, AAR, DuPont, IME, and Norfolk Southern appeals related to the definition of transloading as a transportation function are granted. In this final rule, we are amending the following provisions of the October 30, 2003 final rule: 1. In Sec. 171.1, we are deleting paragraph (b)(4), which defined ``transloading'' as a pre-transportation function. We agree with appellants that transloading is a transportation function. 2. In Sec. 171.1, we are revising paragraph (c)(4) to indicate that ``storage incidental to movement'' includes storage at the destination indicated on a shipping document if the original shipping document includes information that the shipment is a through-shipment to an identified final destination. For example, a shipping paper prepared by the person offering a hazardous material for transportation in commerce may show the shipment destination as a transloading facility; provided that the shipping paper or other documentation includes information that the shipment is a through-shipment and identifies the final destination or destinations of the hazardous material, storage at the facility is ``storage incidental to movement'' and subject to regulation under the HMR. Note that such storage must be of the hazardous material in its original packaging (i.e., the rail tank car) or its transloaded packaging (i.e., a cargo tank motor vehicle) in order to be considered ``storage incidental to movement.'' Note also that storage of a hazardous material after delivery to its final destination is not ``storage [[Page 20021]] incidental to movement'' and not subject to regulation under the HMR. 3. In Sec. 171.8, we are revising the definition of ``pre- transportation function'' to remove transloading operations. We are also revising the definition of ``storage incidental to movement'' to include storage of packaged hazardous materials at intermediate destinations provided the shipping documentation indicates that the shipment is a through-shipment and includes the final destination or destinations of the hazardous material. 4. In Sec. 171.8, we are revising the definition of ``transloading'' by removing the phrase ``at an intermodal transfer facility'' to clarify that transloading is regulated under the HMR irrespective of the location at which the operation occurs. We are also clarifying in the revised definition that transloading when performed by any person is regulated under the HMR. Concerning the definition of ``transloading,'' as indicated above, the October 30, 2003 final rule defined ``transloading'' to mean the transfer of a hazardous material from one bulk packaging to another for the purpose of continuing the movement of the hazardous material in commerce. Appellants suggest that ``[PHMSA should] expand coverage of transloading from bulk-to-bulk to include also non-bulk-to-bulk and vice versa. There are times when the transfer from bulk to non-bulk or vice versa occurs during the logic proposed in HM-223.'' We agree that there may be situations when a hazardous material is transferred directly from a non-bulk to a bulk packaging or vice versa for the purpose of continuing the movement of the hazardous material in commerce. If it can be demonstrated that the shipment is a through shipment to an identified final destination, then such operations meet the definition of ``transloading'' and are subject to regulation under the HMR. Note that, as indicated above, a shipping paper or other document created at the time the shipment originates must indicate that the shipment is a through shipment to a known final destination. We are revising the definition of ``transloading'' to include transfers of hazardous materials from bulk to non-bulk packagings and from non-bulk to bulk packagings. B. Unloading Incidental to Movement The October 30, 2003 final rule defines ``unloading incidental to movement'' of a hazardous material to mean 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. Dow suggests that we include a definition for ``facility'' to clarify this provision. We agree that the definition in the final rule should be clarified. There will be instances where a carrier has delivered a hazardous material to the consignee, and the carrier's responsibility for the hazardous material ceases even though the carrier may not have left the consignee's facility. For example, the carrier may drop a trailer loaded with hazardous material at one location in the facility and go to another location in the same facility to pick up a new trailer for transportation. In this case, the carrier's responsibility for the delivered shipment has ended even though the carrier has not departed from the facility. Therefore, the Dow appeal related to the definition of ``unloading incidental to movement'' adopted in the October 30, 2003 final rule is granted. In this final rule, we are modifying the definition for ``unloading incidental to movement'' to indicate that unloading incidental to movement occurs after the hazardous material has been delivered to the consignee's facility when the unloading operation is performed by carrier personnel or in the presence of carrier personnel. This is consistent with the definition adopted in the October 30, 2003 final rule for ``loading incidental to movement'' of a hazardous material. Note that, for purposes of this rulemaking, the reference to carrier personnel means the crew of the train that delivered the rail tank car to the facility. C. Security One appellant notes that ``Federal HazMat Law provides authority for DOT to regulate the `safe transportation, including security, of hazardous materials * * * in commerce. * * * DOT's authority over hazardous materials security is no less important than its safety authority. DOT's authority in this area should be clearly stated in the rule.' '' (IME; emphasis in the original) We agree; indeed, as we noted in the notice we published extending the comment period for the NPRM (66 FR 59220), this rulemaking has a particular importance for hazardous materials transportation security. In light of continuing terrorist threats and the critical need to assure the security of hazardous materials at facilities and in transportation, a rule that specifies the applicability of the HMR to specific functions and activities and clarifies the relationship of the HMR to programs and regulations administered by ATF, EPA, and OSHA is more important than ever. We note in this regard that Sec. 1711 of the Homeland Security Act of 2002 (Pub. L. 107-296) amended Federal hazmat law to authorize the Secretary of Transportation to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce'' and that the HMR ``shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.'' (Emphasis added.) As a result, the Department of Homeland Security (DHS) and DOT share responsibility for hazardous materials transportation security. We consult and coordinate with DHS concerning security-related hazardous materials transportation regulations to assure that hazardous materials transportation security requirements are consistent with the overall security policy goals and objectives established by DHS and that the regulated industry is not confronted with differing and, perhaps, inconsistent security regulations promulgated by multiple agencies. In consideration of the foregoing, we are granting the IME appeal concerning DOT's authority to regulate hazardous materials transportation security. In this final rule, we are revising Sec. 171.1 in several places to reflect DOT's responsibility for hazardous materials transportation security. IV. Appeals Denied A. Consistency of HM-223 With Federal Hazmat Law DGAC, Dow, and DuPont assert that the October 30, 2003 final rule is inconsistent with Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), particularly with respect to the final rule provisions about the beginning and end points of transportation. ``Nowhere does [Federal hazmat law] even suggest that a carrier's possession of hazardous materials is the point at which DOT regulatory authority attaches. To the contrary, the HMR currently and correctly place great emphasis on the functional responsibilities and actions of hazmat employers and employees. Therefore, we petition [PHMSA] to reconsider the language and content of Section 171.8 * * * '' (DGAC) We disagree. First, reference to carrier possession or presence at loading and unloading operations provides the most accurate, simple, and clear method for [[Page 20022]] establishing the starting and ending points of transportation in commerce. Second, DOT has gone beyond those basic definitions to regulate activities that affect safe transportation in commerce irrespective of who performs them. Contrary to appellants' claim, this approach is both functional and fully consistent with Federal hazmat law. Congress instructed the Secretary to ``prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.'' 5 U.S.C. 5103(b). It authorized the Secretary to regulate those ``transporting hazardous material in commerce'' as well as those ``causing hazardous material to be transported in commerce.'' Id. It defined transportation to mean the ``movement of property and loading, unloading, or storage incidental to the movement.'' 5 U.S.C. 5102(12). As we explained in the HM-223 rulemaking, these particular terms are not defined. 68 FR 61906. That regulatory mandate places upon DOT the responsibility to determine when transportation in commerce begins, i.e., what loading, unloading, and storage is incidental to the movement of hazardous materials, and what other activities impact the safe transportation in commerce. We did this in two ways. First, we defined loading and unloading incidental to movement to be keyed to the possession or presence of the carrier. A carrier is any person that transports property in commerce (see Sec. 171.8 (definition of carrier)). We defined storage incidental to movement to mean storage of the hazardous material by any person between the time the carrier takes physical possession of the material for the purpose of transporting it until the material is delivered to the destination indicated on a shipping document, package marking, or other medium. Thus, the carrier's responsibility for the hazardous material provides the most reliable method to distinguish between loading, unloading, and storage that is incidental to the movement of property in commerce and loading, unloading, and storage that is being performed for some other purpose unrelated to the movement of property in commerce. The definitions also provide clarity to regulated persons. More specifically, loading by the carrier or in the carrier's presence best represents loading that is incidental to the property's movement. Unloading by the carrier or in the carrier's presence best represents unloading that is incidental to the property's movement. And storage by any person after the carrier has taken possession of the property but before the property has been physically delivered to the destination best represents storage that is incidental to the property's movement. Put another way, because anyone who transports property in commerce is a carrier, when no carrier is present, loading or unloading of property is not associated with that property's transportation in commerce. Similarly, storage of property prior to a carrier taking possession of the property or subsequent to the carrier relinquishing possession of the property at its destination is not associated with that property's transportation in commerce. In all these circumstances, the definitions also make it plain when regulatory authority begins and ends. This line must be drawn distinguishing loading, storage, and unloading incidental to movement from other types of loading, storage, and unloading to avoid DOT regulation of activities that do not impact safe transportation in commerce. For example, the preamble to the October 30, 2003 final rule explains that a broader definition of storage would result in DOT regulation of long-term storage operations at shipper and consignee facilities. 68 FR 61915, 61919-20. Similarly, a broader definition of unloading would result in DOT regulation of unloading that is performed after transportation has ended, such as when a rail tank car is unloaded directly into a manufacturing process by a consignee, often after being stored for a substantial period of time after delivery by a carrier. See 68 FR 61917. Outcomes like these would be contrary to the intent of Congress in directing DOT to promulgate regulations governing safe transportation of hazardous materials, while giving other agencies, such as OSHA, EPA, and ATF, regulatory authority over fixed facilities. Second, when functions that might be performed by entities other than a carrier or outside of the carrier's presence affect the safety of the transportation of materials in commerce, they are regulated in a functional approach irrespective of who performs them. There are many areas where this approach applies, but two primary ones. First, pre- transportation functions are functions that are required to assure the safe transportation of a hazardous material in commerce, irrespective of who is performing the function. One key pre-transportation function is loading when performed by a shipper or other person in advance of a carrier taking possession of the material to transport it. Accordingly, as we explained in the rulemaking, when any person ``performs a loading function prior to the carrier's arrival * * * that function is a pre- transportation function and is subject to all applicable regulatory requirements.'' 68 FR 61909. (On the other hand, there is no similar regulation of unloading activities after transportation has ended--so- called ``post-transportation functions''--because once transportation of the property has been completed, unloading will not affect the safety of transportation in commerce.) Second, the HMR apply to packaging manufacturers and requalifiers and to packagings authorized for the transportation of hazardous materials in commerce; the packaging requirements apply to the packaging at any point, including prior to a carrier taking possession of the package for purposes of transporting it. Accordingly, contrary to the claim of the appeal, as with current law, the new rulemaking is fully consistent with Federal hazmat law and places strong emphasis on functional responsibilities. DGAC suggests that the October 30, 2003 final rule's discussion of the relationship of the HMR to regulations promulgated by other Federal agencies such as OSHA and EPA ``completely ignores Congress' intent to ensure uniformity in regulations that impact the transportation of hazardous materials. * * * [PHMSA]'s interpretation in the preamble of HM-223 gives preeminence to OSHA and EPA regulations at the expense of hazardous materials regulatory uniformity as required under the Federal Hazardous Materials Law.'' Again, we disagree. The preamble to the October 30, 2003 final rule does not give preeminence to OSHA and EPA regulations at the expense of hazardous materials regulatory uniformity. Rather, the preamble recognizes that, in order to determine the extent to which each agency's regulations apply to specific situations, we must determine Congressional intent as expressed in all of the statutes that provide for Federal and non-Federal jurisdiction over activities related to the life cycle of a hazardous material. 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 and establish different Federal-state-local government relationships. While appellants are correct that Federal hazmat law [[Page 20023]] provides for nationally uniform regulations applicable to the transportation of hazardous materials, the authorizing statutes for other agency programs for the regulation of hazardous materials may not provide for such national uniformity of regulations. Indeed, in the case of OSHA and EPA, Congressional intent is clear that non-Federal entities should be permitted to establish more stringent regulations than those promulgated by OSHA and EPA for worker and environmental protection. Taken together, the various statutes establishing hazardous materials regulatory programs in DOT, OSHA, EPA, and ATF provide for complementary regulatory programs that encompass differing, but not necessarily contradictory, Federal-state-local relationships. The provisions adopted in the October 30, 2003 final rule provide for nationally uniform regulations for the transportation of hazardous material in commerce that are consistent with Federal hazmat law and with the statutes authorizing the hazardous materials regulatory programs administered by OSHA, EPA, and ATF. DGAC raises a concern about transport vehicles that are DOT- authorized packagings for the transportation of hazardous materials. ``Transport vehicles bearing DOT specification identification markings are instruments of commerce and should remain under the regulatory supervision of DOT at all times they are marked to indicate they meet the DOT specification requirements. Section 5104 of [Federal hazmat law] addresses representation and tampering and we are certain it applies to loading, unloading, and storage without regard to whom is physically in possession of such vehicles.'' (DGAC) DGAC is correct that Sec. 5104 of Federal hazmat law addresses representation and tampering. This section prohibits a person from representing that a container or package is safe, certified, or complies with the HMR unless the container or package meets all applicable HMR requirements. This section further prohibits a person from representing that a hazardous material is present in a package or on a transport conveyance unless","truncated":true,"body_characters":123674}