[Federal Register: May 28, 2004 (Volume 69, Number 104)]
[Rules and Regulations]
[Page 30588-30589]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my04-13]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173, 174, 175, 176, 177, and 178
[Docket No. RSPA-98-4952 (HM-223)]
RIN 2137-AC68
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; delay of effective date.
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SUMMARY: On October 30, 2003, RSPA published a final rule (68 FR 61905)
to clarify the applicability of the Hazardous Materials Regulations to
loading, unloading, and storage operations. RSPA is delaying the
effective date of the final rule from October 1, 2004 to January 1,
2005.
DATES: The effective date of the final rule amending 49 CFR Parts 171,
173, 174, 175, 176, 177, and 178 published at 68 FR 61905 on October
30, 2003, is delayed until January 1, 2005.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of
Hazardous Materials Standards, Research and Special Programs
Administration; or Donna O'Berry (202) 366-4400, Office of the Chief
Counsel, Research and Special Programs Administration.
SUPPLEMENTARY INFORMATION:
I. Background
On October 30, 2003, the Research and Special Programs
Administration (RSPA, we) published a final rule to clarify the
applicability of the Hazardous Materials Regulations (HMR; 49 CFR parts
171-180) to specific functions and activities, including hazardous
materials loading and unloading operations and storage of hazardous
materials during transportation (68 FR 61906). The final rule amended
the HMR to incorporate the following new definitions and provisions:
We defined a new term--``pre-transportation function''--to
mean a function performed by any person that is required to assure the
safe transportation of a hazardous material in commerce. When performed
by shipper personnel, loading of packaged or containerized hazardous
material onto a transport vehicle, aircraft, or vessel and filling a
bulk packaging with hazardous material in the absence of a carrier for
the purpose of transporting it is a pre-transportation function as that
term is defined in this final rule. Pre-transportation functions must
be performed in accordance with requirements in the HMR.
We defined ``transportation'' to mean the movement of
property and loading, unloading, or storage incidental to the movement.
This definition is consistent with the definition of ``transportation''
in Federal 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
[[Page 30589]]
material from one geographic location to another by rail car, aircraft,
motor vehicle, or vessel.
We defined ``loading incidental to movement'' to mean the
loading by carrier personnel or in the presence of carrier personnel of
packaged or containerized hazardous material onto a transport vehicle,
aircraft, or vessel for the purpose of transporting it. For a bulk
packaging, ``loading incidental to movement'' means the filling of the
packaging with a hazardous material by carrier personnel or in the
presence of carrier personnel for the purpose of transporting it.
Loading incidental to movement is regulated under the HMR.
We defined ``unloading incidental to movement'' to mean
the removal of a packaged or containerized hazardous material from a
transport vehicle, aircraft, or vessel or the emptying of a hazardous
material from a bulk packaging after a hazardous material has been
delivered to a consignee and prior to the delivering carrier's
departure from the consignee facility or premises. Unloading incidental
to movement is subject to regulation under the HMR. Unloading by a
consignee after the delivering carrier has departed the facility is not
unloading incidental to movement and not regulated under the HMR.
We defined ``storage incidental to movement'' to mean
storage by any person of a transport vehicle, freight container, or
package containing a hazardous material between the time that a carrier
takes physical possession of the hazardous material for the purpose of
transporting it until the package containing the hazardous material is
physically delivered to the destination indicated on a shipping
document. However, in the case of railroad shipments, even if a
shipment has been delivered to the destination shown on the shipping
document, if the track is under the control of a railroad carrier or
track is used for purposes other than moving cars shipped to or from
the lessee, storage on the track is storage incidental to movement. We
revised the definition of ``private track or private siding'' to make
this clear. Storage at a shipper facility prior to a carrier exercising
control over or taking possession of the hazardous material or storage
at a consignee facility after a carrier has delivered the hazardous
material is not storage incidental to movement and is not regulated
under the HMR.
We amended Sec. 171.1 of the HMR to list regulated and
non-regulated functions. Regulated functions include: (1) Activities
related to the design, manufacture, and qualification of packagings
represented as qualified for use in the transportation of hazardous
materials; (2) pre-transportation functions; and (3) transportation
functions (movement of a hazardous material and loading, unloading, and
storage incidental to the movement). Non-regulated functions include:
(1) Rail and motor vehicle movements of a hazardous material solely
within a contiguous facility where public access is restricted; (2)
transportation of a hazardous material in a transport vehicle or
conveyance operated by a Federal, state, or local government employee
solely for government purposes; (3) transportation of a hazardous
material by an individual for non-commercial purposes in a private
motor vehicle; and (4) any matter subject to U.S. postal laws and
regulations.
We amended Sec. 171.1 of the HMR to indicate that
facilities at which functions are performed in accordance with the HMR
may be subject to applicable standards and regulations of other Federal
agencies or to applicable state or local government laws and
regulations (except to the extent that such non-Federal requirements
may be preempted under Federal hazmat law). Federal hazmat law does not
preempt other Federal statutes nor does it preempt regulations issued
by other Federal agencies to implement statutorily authorized programs.
The final rule was intended to clarify the applicability of the HMR to
specific functions and activities. It is important to note that
facilities at which pre-transportation or transportation functions are
performed must comply with Occupational Safety and Health
Administration (OSHA) and state or local regulations applicable to
physical structures--for example, noise and air quality control
standards, emergency preparedness, fire codes, and local zoning
requirements. Facilities may also have to comply with applicable state
and local regulations for hazardous materials handling and storage
operations. Facilities at which pre-transportation or transportation
functions are performed may also be subject to Environmental Protection
Agency (EPA) and OSHA regulations. For example, facilities may be
subject to EPA's risk management; community right-to-know; hazardous
waste tracking and disposal; and spill prevention, control and
countermeasure requirements, and OSHA's process safety management and
emergency preparedness requirements. Similarly, facilities at which
pre-transportation functions are performed may also be subject to
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) concerning the handling of explosives.
II. Appeals of the Final Rule
We received 14 appeals of the final rule from Ag Processing Inc.
(AGP); Akzo Nobel (Akzo); Archer Daniels Midland Company (Archer
Daniels); the Association of American Railroads (AAR); the Dangerous
Goods Advisory Council (DGAC); the Dow Chemical Company (Dow); DuPont;
Eastman Chemical Company (Eastman); the Institute of Makers of
Explosives (IME); Norfolk Southern Corporation (Norfolk Southern); the
Spa and Pool Chemical Manufacturers' Association (SPCMA); the Sulphur
Institute; the Utility Solid Waste Activities Group (USWAG); and
Vermont Railway, Inc. (Vermont Railway).
Appellants raised a number of issues related to the consistency of
the final rule with Federal hazardous materials transportation law;
state and local regulation of hazardous materials facilities; the
relationship of the HMR to regulations promulgated by OSHA, EPA, and
ATF; the definitions adopted in the final rule for ``unloading
incidental to movement,'' ``transloading,'' and ``storage incidental to
movement;'' and the consistency of the HM-223 final rule with security
regulations adopted in a final rule issued under Docket No. HM-232.
III. Delay of Effective Date
The issues raised by appellants concerning the October 30, 2003
final rule are detailed and complex. Delaying the effective date will
provide us with sufficient time to fully address the issues raised by
the appellants. It also provides us with sufficient time to coordinate
the appeals document fully with the other Federal agencies that
assisted us in developing the HM-223 final rule.
Issued in Washington, DC on May 24, 2004 under authority
delegated in 49 CFR part 1.
Elaine E. Joost,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 04-12130 Filed 5-27-04; 8:45 am]
BILLING CODE 4910-60-P