[Federal Register: September 24, 2004 (Volume 69, Number 185)]
[Proposed Rules]
[Page 57245-57250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se04-26]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[Docket No. RSPA-04-19173 (HM-223A)]
RIN 2137-AE04
Applicability of the Hazardous Materials Regulations to ``Persons
Who Offer'' Hazardous Materials for Transportation in Commerce
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: RSPA is proposing to add to the Hazardous Materials
Regulations a definition for ``person who offers or offeror'' in order
to codify long-standing interpretations on the applicability of those
regulations.
DATES: Submit your comments on or before November 23, 2004.
ADDRESSES: You may submit comments by any of the following methods:
U.S. Government Regulations.gov Web Site: http://www.regulations.gov.
Use the search tools to find this rulemaking and
follow the instructions for submitting comments.
DOT Docket Management System Web site: http://dms.dot.gov.
Click on ``Comment/Submissions'' and follow the instructions for
submitting comments.
Fax: 1-202-493-2251.
U.S. Mail or Private Delivery Service: Docket Management
System, U.S. Department of Transportation, 400 Seventh Street, SW.,
Room PL-402, Washington, DC 20590-0001.
Hand Delivery: To the Docket Management System, Room PL-
401, on the plaza level of the Nassif Building, 400 Seventh Street,
SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: You must include the agency name and docket number,
RSPA-04-19173 (HM-223A) or the Regulatory Identification Number (RIN)
for this rulemaking at the beginning of your comment. Note that all
comments received will be posted without change to the DOT Docket
Management System Web site: http://dms.dot.gov, including any personal
information provided. Please see the Privacy Act section of this
document.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, (202) 366-4400, Research and Special Programs Administration,
U.S. Department of Transportation, 400 Seventh Street, SW., Washington,
DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The 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,
Public Law 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.'' The HMR apply to a
person:
[[Page 57246]]
(i) Transporting hazardous materials in commerce;
(ii) Causing hazardous material to be transported in commerce;
or
(iii) Manufacturing, fabricating, marking, maintaining,
reconditioning, repairing, or testing a packaging or a container
that is represented, marked, certified, or sold by that person as
qualified for use in transporting hazardous material in commerce.
49 U.S.C. 5103(b)(1)(A).
Activities governed by the HMR include ``[t]he offering of
hazardous materials for transportation and transportation of hazardous
materials in interstate, intrastate, and foreign commerce by rail car,
aircraft, motor vehicle, and vessel * * *'' 49 CFR 171.1(a)(1). In this
manner, the HMR have used the term ``offering'' to describe the process
of ``causing hazardous material to be transported,'' and numerous
provisions in the HMR impose responsibilities on a ``person who
offers'' ( e.g., 49 CFR 107.600(a) (registration), 172.200(a) (shipping
papers), 172.300(a) (package marking), 172.400(a) (hazard warning
labels), 172.500(a) (placards), 172.600(c) (emergency response
information), and 173.1(b) (general training requirement)).
On October 30, 2003, we published a final rule under Docket HM-223
to clarify the applicability of the HMR to functions and operations
related to the transportation of hazardous materials in commerce. 68 FR
61906, revision of effective date, 69 FR 30588 (May 28, 2004),
administrative appeals and judicial review pending in American
Chemistry Council v. U.S. Dep't of Transp., No. 03-1456 (D.C. Cir.).
The provisions of the HM-223 final rule are effective January 1, 2005.
The HM-223 final rule revised Sec. 171.1 of the HMR to incorporate
language to clarify the applicability of the regulations to persons who
perform specific functions. The revised Sec. 171.1(b) states that the
HMR apply to ``each person who offers a hazardous material for
transportation in commerce, causes a hazardous material to be
transported in commerce, or transports a hazardous material in commerce
and who performs or is responsible for performing a pre-transportation
function * * *'' 68 FR 61937. The first two subsections of Sec. 171.2,
as revised in the HM-223 final rule, provide that:
(a) Each person who performs a function covered by this
subchapter must perform that function in accordance with this
subchapter.
(b) Each person who offers a hazardous material for
transportation in commerce must comply with all applicable
requirements of this subchapter or an exemption, approval, or
registration issued under this subchapter or subchapter A of this
chapter.
68 FR 61939.
The HMR do not define the terms ``offer'' or ``person who offers.''
In 1990, RSPA published the text of a 1988 letter interpretation
stating that, in the HMR,
responsibilities generally are placed on ``offerors'' for
performance of the functions associated with ``offering'' hazardous
materials for transportation * * *
The key issue in determining the regulatory responsibilities
under the requirements in [the HMR] is determining which parties
perform which functions. This involves a case-by-case determination
based upon all relevant facts. Any person who performs, attempts to
perform, or, under the circumstances involved, is contractually or
otherwise responsible to perform any of the functions assigned by
the HMR to the offeror, is legally responsible under the HMR for the
proper performance of those functions. * * * In many cases, more
than one person may be responsible for performing, or attempting to
perform, ``offeror'' functions, and each such person may be held
jointly and severally liable for all or some of the ``offeror''
responsibilities under the HMR.
55 FR 6758, 6760-61 (Feb. 26, 1990).
In a 1992 interpretation, RSPA further explained that:
While hazardous materials ownership and contractual assignment
of functions are factors relevant to the determination of
``offeror'' status, they are not conclusive. * * * Factors
considered in determining a party's ``offeror'' status include
functions actually performed or undertaken by a party, and functions
which the party contracts to perform. Past practices of the parties
are also considered because they provide evidence of the parties'
division of functions.
``Offeror'' functions include, but are not limited to, selection
of the packaging for a regulated material, physical transfer of
hazardous materials to a carrier, classifying hazardous materials,
preparing shipping papers, reviewing shipping papers to verify
compliance with the HMR or their international equivalents, signing
hazardous materials certifications on shipping papers, placing
hazardous materials markings or placards on vehicles or packages,
and providing placards to a carrier.
57 FR 48739, 48740 (Oct 28, 1992).
In the NPRM issued under Docket HM-223 (66 FR 32420; June 14,
2001), we proposed to define ``offer a hazardous material'' to mean
``perform, attempt to perform, or is required to perform a pre-
transportation function under the HMR.'' We proposed to define ``pre-
transportation function'' to mean ``tendering a hazardous material to a
carrier for transportation in commerce; causing a hazardous material to
be transported in commerce; or performing a function specified in the
HMR that is required to assure the safe transportation of a hazardous
material in commerce * * *'' 66 FR 32447. The intent of this proposal
was ``to clarify that, consistent with Federal hazmat law [and our
prior interpretations], the HMR apply to functions performed to prepare
hazardous material for transportation in commerce as well as the actual
transportation of hazardous materials in commerce.'' 68 FR 61911.
Comments to the HM-223 NPRM pointed out that this proposed
definition could create a circular result, because a shipper might be
considered to offer a hazardous material ``when performing pre-
transportation functions that [must be performed] prior to offering a
hazardous material for transportation.'' Id. Accordingly, in the final
rule in HM-223, ``we revised the definition of `pre-transportation
function' to mean a function specified in the HMR that is required to
ensure the safe transportation of a hazardous material in commerce,''
and we did not include a definition for ``offer a hazardous material.''
Id. We recognized that an ``offering'' is not normally considered
complete until ``the hazardous material is staged for loading and the
consignor or his agent signs the shipping paper,'' at which time an
offeror should be ``able to demonstrate compliance with all applicable
pre-transportation requirements.'' Id. We also indicated that, ``[e]ven
in the absence of a signed shipping paper, a shipper may be responsible
for assuring compliance with specific pre-transportation requirements
if other factors indicate that a particular pre-transportation activity
has been completed.'' 68 FR 61912. Accordingly, RSPA stated that the
agencies enforcing the Federal hazardous material transportation law
and the HMR
will continue to exercise our statutory authority to inspect for
compliance with the HMR requirements applicable to pre-
transportation functions. We will also continue to exercise our
authority to take appropriate enforcement action when we discover
that a pre-transportation function has been performed in a manner
that does not comply with the HMR, even if transportation of
hazardous material in commerce has not yet begun (i.e., the carrier
has not yet taken possession of the material) or has not been
performed at all (i.e. undeclared shipments offered for
transportation).
Id.
This discussion in the preamble to the HM-223 final rule makes it
clear that RSPA has not changed its long-standing position that any
person who performs a regulated ``pre-transportation'' function comes
within the concept of a ``person who offers'' as that and similar terms
are used in the HMR, in the manner explained in the prior
interpretations. In response to concerns
[[Page 57247]]
regarding entities such as freight forwarders, brokers, and non-vessel
operating common carriers, who may have ``no physical involvement with
the shipment,'' we made it clear that the HMR apply to persons who
perform pre-transportation functions when they make arrangements for a
shipment, but that, except for errors made by others about which they
``knew or should have known,'' they may rely on ``information provided
by the original shipper.'' 68 FR 61911. The principle of reasonable
reliance applies whenever there is more than one ``person who offers''
(i.e., multiple offerors), and to all persons who participate in the
transportation of hazardous materials. Accordingly, a freight
forwarder, broker, non-vessel operating common carrier, or carrier may
not accept, continue to transport, or forward or transfer a hazardous
material to a subsequent carrier if it becomes aware or, in the
exercise of reasonable care, should be aware that the shipment does not
comply with the HMR.
II. NPRM Proposal
In this NPRM, we propose to define ``person who offers'' or
``offeror'' to mean any person who performs, or is responsible for
performing, any of the pre-transportation functions required under the
HMR for transportation of a hazardous material; tenders or makes a
hazardous material available to a carrier for transportation in
commerce; or both performs, or is responsible for performing, pre-
transportation functions and tenders or makes a hazardous material
available to a carrier for transportation. Under the proposed
definition, a carrier that transfers, interlines, or interchanges
hazardous materials to another carrier for continued transportation is
not an offeror when it does not perform any pre-transportation
functions. In addition, Sec. 171.2 would be amended to make explicit
that:
--There may be more than one offeror of a shipment of hazardous
materials
--Each offeror is responsible for complying with the requirements of
the HMR with respect to any pre-transportation function that it
performs or is required to perform.
--For a shipment involving more than one offeror, each offeror may rely
on information provided by another offeror, unless the offeror knows
or, in the exercise of reasonable care, should know that the
information is incorrect. In a similar manner, a carrier may rely on
information it receives from an offeror or a prior carrier, unless the
carrier knows or, in the exercise of reasonable care, should know that
the information is incorrect.
These proposed definitions are consistent with the prior
interpretations published in the Federal Register and with informal
letters of clarification we have issued on this subject. (See, for
example, the April 13, 1992 letter to Envirosafe Services, Inc.; June
27, 1996 letter to ``K'' Line America, Inc.; May 21, 1999 letter to
CH2MHILL; May 30, 2000 letter to Mr. Todd Nash; January 11, 2001 letter
to Corso Biomedical Consulting; July 17, 2002 letter to Hawks
Logistics; April 22, 2003 letter to Henderson and Walton Women's
Center, P.C.; February 10, 2004 letter to Hyundai America Shipping
Agency, Inc.) The proposed definitions incorporate our long-standing
administrative determinations that any person who performs, attempts to
perform, or is responsible for performing pre-transportation functions
under the HMR is considered to be a ``person who offers'' (or an
``offeror'') for purposes of the HMR requirements applicable to that
function and that there may be more than one person responsible for
performing pre-transportation functions for a hazardous materials
shipment.
In accordance with the past interpretations we have issued on this
subject, the proposed definition recognizes that, for a given hazardous
materials shipment, the persons who offer the shipment for
transportation include both those who perform pre-transportation
functions and those who transfer the material to a carrier for
transportation. For a given hazardous materials shipment, there may be
more than one person acting as an offeror of the shipment, either
because that person performs one or more pre-transportation functions
or because that person makes the material available to a carrier for
transportation. The definition further recognizes that there is one
person with overall responsibility for ensuring that the shipment
complies with applicable HMR requirements. Generally, that person will
be responsible for the certification on the shipping paper that
indicates that the shipment has been properly classed, described,
packaged, marked, and labeled, and is in proper condition for
transportation when tendered to the initial carrier.
Note that, while a person who performs a pre-transportation
function is considered to be an offeror, that person is not necessarily
responsible for the proper performance of all pre-transportation
functions associated with a particular shipment. As stated above, the
person who signs the shipper's certification is responsible for
assuring that all applicable regulatory requirements are met; persons
who perform one or more pre-transportation functions for the shipment
are responsible only for the performance of the functions they perform.
For example, a hospital may negotiate a contract with a carrier for the
carrier to perform pre-transportation functions for shipments of
regulated medical waste; the carrier may provide appropriate packaging
to the hospital, close the filled packagings, and affix appropriate
labels. If a hospital official signs the shipper certification for the
shipment, the hospital is the person who completes the process of
offering the shipment for transportation and is responsible for
assuring that the contractor performed the pre-transportation functions
correctly; the contractor is also an offeror for purposes of the HMR
and will be held responsible for those functions that it performed or
was obligated to perform under contract to the hospital.
As we stated in the 1992 interpretation, a freight forwarder who
arranges for the transportation of a hazardous materials shipment, but
performs no pre-transportation functions associated with that shipment
is not an offeror for purposes of the HMR. Moreover, a carrier that
does not perform a pre-transportation function is not a ``person who
offers'' as that term is used in the HMR. Thus, the interlining of a
package or freight container of hazardous materials from one carrier to
another for further transportation does not make the first carrier an
offeror if it does not perform any pre-transportation function. (See
June 2, 1995 letter to Crowley American Transport, Inc.)
However, the proposed definitions recognize that a carrier or other
entity may be required to perform certain pre-transportation functions
in order to facilitate or continue the transportation of a hazardous
material in commerce. If a carrier or freight forwarder performs a pre-
transportation function, the carrier or freight forwarder is an offeror
for purposes of the HMR and must perform the function in accordance
with applicable regulatory requirements. For example, a carrier or
freight forwarder may prepare a shipping paper for a hazardous
materials shipment that will be consolidated or combined with other
freight or transferred from one carrier to another during the course of
its transportation in commerce. The carrier or freight forwarder must
prepare the shipping paper in accordance with applicable requirements,
but the person preparing the shipping paper may rely
[[Page 57248]]
on information provided by the original shipper for the preparation of
the new shipping paper (e.g., the classification of the material, the
compatibility of the material with the packaging being used, or the
emergency response telephone number), so long as that person exercises
due care. For example, a carrier or freight forwarder may not rely on
an emergency response telephone number provided by a preceding offeror
when it is ``aware (or should be aware) of facts indicating the
emergency response telephone number is not operative and does not meet
the requirements of [49 CFR] 172.604(b).'' (See February 10, 2004
letter to Hyundai America Shipping Agency, Inc.; June 27, 1996 letter
to ``K'' Line America, Inc.) Similarly, the carrier or freight
forwarder may rely on the original shipper's certification when
recertifying the shipment for subsequent transportation unless
objective factors are present that suggest that the condition of the
shipment has changed since it was originally offered for
transportation. (See June 2, 1995 letter to Crowley American Transport,
Inc.; April 5, 2000 letter to Cosco North America, Inc.)
The definition of ``person who offers'' includes a person who makes
a hazardous material available to a carrier for transportation in
commerce when pre-transportation functions that should have been
performed under the HMR were not, in fact, performed. Thus, a person
who tenders undeclared hazardous materials for transportation is
offering the hazardous material for transportation even though no pre-
transportation functions required for the shipment were performed. We
will continue to exercise our authority to take appropriate enforcement
action when we discover that a pre-transportation function has been
performed in a manner that does not comply with the HMR or has not been
performed at all.
We note concerning undeclared shipments that a final rule published
on May 26, 2004, under Docket No. HM-229 (69 FR 30114) includes a
definition for ``undeclared hazardous material'' that is consistent
with the definitions proposed in this NPRM. The May 26, 2004 final rule
defines ``undeclared hazardous material'' to mean a hazardous material
that is: (1) Subject to any of the hazard communication requirements in
Subparts C, D, E, and F of Part 172 of the HMR or an alternative
marking requirement in Part 173; and (2) offered for transportation in
commerce without any clear indication to the person accepting the
hazardous material for transportation that a hazardous material is
present.
The definition of ``person who offers'' also covers an entity that
transports its own hazardous materials. For example, a company that
uses its own motor vehicles to transport its own hazardous material
performs pre-transportation functions required under the HMR and
tenders the hazardous material to itself for transportation. Similarly,
an air carrier transporting company material (COMAT) both offers and
accepts hazardous materials for transportation. In this regard, note
that, in some situations, a company may offer a hazardous material to
itself for transportation by private carriage and then may re-offer the
hazardous material to a succeeding carrier. The company is an offeror
as we propose to define that term in this NPRM both when it offers the
hazardous material to itself and when it reoffers the hazardous
material to a subsequent carrier.
An airline passenger who transports hazardous materials in carry-on
or checked baggage is included in the definition of a ``person who
offers'' as proposed in this NPRM. On February 28, 2003, we published
an interpretation addressing hazardous materials in carry-on and
checked baggage (68 FR 9735). The interpretation noted that
``[h]azardous materials in carry-on and checked baggage are subject to
the HMR when offered for transportation in commerce'' (68 FR 9736). The
interpretation identifies, for purposes of the HMR, the point at which
an airline passenger offers a hazardous material in carry-on or checked
baggage. In accordance with the interpretation, a passenger in control
of carry-on baggage (including items on his/her person) containing a
hazardous material ``offers and represents that the baggage is fit for
transportation by aircraft when the passenger tenders the baggage to
screening personnel at an airport security checkpoint or otherwise
attempts to proceed through the checkpoint with the hazardous materials
on his/her person.'' A passenger offers checked baggage containing a
hazardous material ``at the point the passenger presents the baggage
for acceptance by the carrier'' (68 FR 9737). Nothing in this NPRM is
intended to change the determinations made in the February 28, 2003
interpretation.
III. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This NPRM is published under the authority of 49 U.S.C. 5103(b),
which authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation, including security, of
hazardous material in intrastate, interstate, and foreign commerce. As
set forth in 49 U.S.C. 5103(b)(1)(A), the regulations are to apply to,
among others, a person transporting a hazardous material in commerce or
causing hazardous material to be transported in commerce. In this NPRM,
we are proposing to codify in the HMR longstanding interpretations
concerning the applicability of the HMR to persons who offer hazardous
materials for transportation. The terms ``offer'' or ``person who
offers'' are used throughout the HMR to describe the process of causing
a hazardous materials to be transported in commerce. Clarifying the
applicability of the HMR to persons who offer hazardous materials for
transportation will help the regulated community understand and comply
with regulatory requirements applicable to specific situations and
operations.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under Executive Order 12866 and, therefore, was not reviewed by
the Office of Management and Budget. The proposed rule is not
considered a significant rule under the Regulatory Policies and
Procedures of the Department of Transportation (44 FR 11034). No
further regulatory evaluation is necessary because the proposed
definition of ``person who offers'' would simply restate and codify
long-standing interpretations on the applicability of the HMR without
making any substantive change and, thus, would not increase or decrease
either the number of persons who must comply with the HMR or the costs
of compliance with the HMR by those persons.
We invite interested persons to submit comments on our conclusion
that there would not be any increase or decrease in the costs of
compliance with the HMR. Those comments should specifically describe
and quantify any change in the costs of compliance and also identify
(and quantify to the extent possible) any benefits that would result if
the proposed definition of ``person who offers'' are adopted.
C. Executive Order 13132 (Federalism)
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''). This proposed rule would make no change in the
[[Page 57249]]
applicability of the HMR or, to the extent that the HMR have been
adopted by a State and are being enforced as State requirements, the
applicability of those State requirements. For this reason, RSPA
believes that nothing in this proposed rule, if adopted, will preempt
any State law or regulation or have any substantial direct effect or
sufficient federalism implications that would limit the policymaking
discretion of the States. RSPA invites States and other interested
parties to comment on whether they believe any State requirement would
be affected by the adoption of this proposed rule.
D. Executive Order 13175
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'').
Because this proposed rule does not have tribal implications and does
not impose substantial direct compliance costs, the funding and
consultation requirements of Executive Order 13175 do not apply.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
Need and legal basis for the proposed rule. This proposed rule is
intended to codify prior interpretations on the applicability of the
HMR to persons who offer a hazardous material for transportation in
commerce. If adopted, this proposed rule would be issued under the
requirement in 49 U.S.C. 5103(b)(1)(A) for DOT to issue regulations for
the safe transportation of hazardous material in intrastate,
interstate, and foreign commerce that apply to a person causing
hazardous material to be transported in commerce.
Identification of potentially affected small entities. Unless
alternative definitions have been established by an agency in
consultation with the Small Business Administration (SBA), the
definition of ``small business'' has the same meaning under the Small
Business Act. Because no special definition has been established, RSPA
employs the thresholds published by SBA for industries subject to the
HMR. Based on data for 1997 compiled by the U.S. Census Bureau, it
appears that upwards of 95 percent of firms who are subject to the HMR
are small businesses. These entities would incur no new costs to comply
with the HMR, because the proposed rule would make no change in the
applicability of the HMR.
Related Federal rules and regulations. The Occupational Safety and
Health Administration (OSHA) of the U.S. Department of Labor issues
regulations related to safe operations, including containment and
transfer operations, involving hazardous materials in the workplace.
These regulations are codified at 29 CFR part 1910 and include
requirements for process safety management of highly hazardous
chemicals and for operations involving specific hazardous materials,
such as compressed gases, flammable and combustible liquids, explosives
and blasting agents, liquefied petroleum gases, and anhydrous ammonia.
OSHA regulations also address hazard communication requirements at
fixed facilities, including container labeling and other forms of
warning, material safety data sheets, and employee training.
The U.S. Environmental Protection Agency (EPA) issues regulations
on the management of hazardous wastes, including the tracking of
hazardous wastes transported from a generator to a treatment, storage,
or disposal facility. These regulations are codified at 40 CFR parts
260-265. As provided by Section 3003(b) of the Resource Conservation
and Recovery Act (42 U.S.C. 6923(b)), EPA's regulations applicable to
transporters of hazardous waste are consistent with requirements in the
HMR.
EPA also issues regulations designed to prevent accidental release
into the environment of hazardous materials at fixed facilities,
codified at 40 CFR part 68. These regulations include requirements for
risk management plans that must include a hazard assessment, a program
for preventing accidental releases, and an emergency response program
to mitigate the consequences of accidental releases. EPA regulations on
hazardous materials at fixed facilities also address community right-
to-know requirements, hazardous waste generation, storage, disposal and
treatment, and requirements to prevent the discharge of oil into or
onto the navigable waters of the United States or adjoining shorelines.
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) of
the U.S. Department of Justice issues regulations on licensing,
permitting and safe handling (including storage) of explosives,
codified at 27 CFR part 555. These regulations do not apply to ``any
aspect of the transportation of explosive materials via railroad,
water, highway, or air which are regulated by the United States
Department of Transportation and agencies thereof, and which pertain to
safety.'' 18 U.S.C. 845(a)(1).
The Nuclear Regulatory Commission issues regulations, codified in
10 CFR, governing its licensees who acquire, receive, possess, use, and
transfer certain radioactive materials, including requirements on
packagings used in transporting these materials and the physical
protection of these materials at fixed facilities and during
transportation.
Conclusion. This proposed rule would make no change in the
applicability of the HMR and impose no new costs of compliance with the
HMR requirements. I hereby certify that the proposed rule would not
have a significant economic impact on a substantial number of small
entities.
F. Unfunded Mandates Reform Act of 1995
This proposed rule would not impose any mandate and thus would not
impose unfunded mandates under the Unfunded Mandates Reform Act of
1995.
G. Paperwork Reduction Act
This proposed rule would not impose any new information collection
requirements.
H. Environmental Assessment
There would not be any environmental impacts associated with this
proposed rule.
I. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document may be used to cross-reference this action with the
Unified Agenda.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70, pages 19477-78), or at http://dms.dot.gov
.
List of Subjects in 49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous Waste,
Imports, Reporting and recordkeeping requirements.
[[Page 57250]]
In consideration of the foregoing, we propose to amend 49 CFR,
subtitle B, chapter I as follows:
PART 171--GENERAL INFORMATION, REGULATIONS AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701, 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134
section 31001.
2. In Sec. 171.2, revise paragraphs (a) and (b), to read as
follows:
Sec. 171.2 General requirements.
(a) No person may offer or accept a hazardous material for
transportation in commerce unless that person is registered in
conformance with subpart G of part 107 of this subchapter, if
applicable, and the hazardous material is properly classed, described,
packaged, marked, labeled, and in condition for shipment as required or
authorized by applicable requirements of this subchapter, or an
exemption, approval, or registration issued under this subchapter or
under subchapter A of this chapter. There may be more than one offeror
of a shipment of hazardous materials. Each offeror is responsible for
complying with the requirements of this subchapter, or an exemption,
approval, or registration issued under this subchapter or subchapter A
of this chapter, with respect to any pre-transportation function that
it performs or is required to perform; however, each offeror is
responsible only for the specific pre-transportation functions that it
performs or is required to perform, and each offeror may rely on
information provided by another offeror, unless an offeror knows or, in
the exercise of reasonable care, should know that the information
provided by the other offeror is incorrect.
(b) No person may transport a hazardous material in commerce unless
that person is registered in conformance with subpart G of part 107 of
this subchapter, if applicable, and the hazardous material is handled
and transported in accordance with applicable requirements of this
subchapter, or an exemption, approval, or registration issued under
this subchapter or subchapter A of this chapter. Each carrier who
transports a hazardous material in commerce may rely on information
provided by the offeror of the hazardous material or a prior carrier,
unless the carrier knows or, in the exercise of reasonable care, should
know that the information provided by the offeror or prior carrier is
incorrect.
* * * * *
3. In Sec. 171.8, add a definition for ``person who offers or
offeror'' in appropriate alphabetical order, to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Person who offers or offeror means: (1) Any person who does either
or both of the following:
(i) Performs, or is responsible for performing, any pre-
transportation function required under this subchapter for
transportation of the hazardous material.
(ii) Tenders or makes the hazardous material available to a carrier
for transportation in commerce.
(2) A carrier that transfers, interlines, or interchanges hazardous
material to another carrier for continued transportation is not an
offeror when it does not perform any pre-transportation function.
* * * * *
Issued in Washington, DC on September 21, 2004, under the
authority delegated in 49 CFR part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Material Safety.
[FR Doc. 04-21535 Filed 9-23-04; 8:45 am]
BILLING CODE 4910-60-P