Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage, 20018-20034 [05-7394]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 72 (Friday, April 15, 2005)]
[Rules and Regulations]
[Pages 20018-20034]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7394]



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Part III





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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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

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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.

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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

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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

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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

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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 the material is actually present. In 
addition, this section prohibits a person from altering, removing, or 
tampering with a marking, label, placard, or shipping paper description 
or with a package or transport conveyance used to transport hazardous 
material.
    We do not agree that the provisions adopted in the October 30, 2003 
final rule are inconsistent with Sec.  5104 of Federal hazmat law. DGAC 
is correct that the prohibitions in Sec.  5104 apply without regard to 
who is physically in possession of the hazardous materials package or 
transport conveyance at any given time. As we have stated previously, 
however, the definition of ``transportation in commerce'' adopted in 
the October 30, 2003 final rule does not mean that the provisions of 
Federal hazmat law or the HMR apply only when a hazardous material is 
actually being transported in commerce. Regulated pre-transportation 
functions generally occur prior to the actual transportation in 
commerce of a hazardous material; similarly, specification packaging 
requirements apply at all times a packaging is marked to indicate 
conformance with a packaging specification even if the packaging is not 
in transportation in commerce. Thus, the representation and tampering 
prohibitions specifically addressing hazardous materials packages or 
transportation conveyances in Sec.  5104 of Federal hazmat law apply 
whether or not the package or transportation conveyance is in 
transportation in commerce at the time that tampering occurs.
    For the reasons outlined above, the Dow and DGAC appeals that 
assert that the October 30, 2003 final rule is not consistent with 
Federal hazmat law are denied.
    DuPont asserts that ``[PHMSA] has created new terminology with 
references to pre and post transportation functions that do not appear 
in the statute. * * * This concept is not supported by statute and 
represents a departure by [PHMSA] from current practices and 
legislative history.'' DuPont is correct that the term ``pre-
transportation'' does not appear in Federal hazmat law. We disagree, 
however, that the concept is not supported by statute and represents a 
departure from current practices. The HMR currently apply to a number 
of activities performed before a hazardous material is transported in 
commerce. The October 30, 2003 final rule defines ``pre-transportation 
functions'' to mean activities performed prior to the transportation of 
a hazardous material that affect the safe transportation of the 
hazardous material. These activities are currently regulated under the 
HMR, so the definition does not represent a departure from current 
practices. Moreover, the definition is consistent with Federal hazmat 
law, which clearly recognizes the critical safety impact of activities 
performed in advance of transportation by persons who cause the 
transportation of hazardous materials in commerce. Indeed, Federal 
hazmat law recognizes the importance of national uniformity in these 
areas with a specific preemption provision applicable to state, local, 
and Indian tribe requirements on, among other functions: (1) The 
designation, description, and classification of hazardous material; (2) 
the packing, repacking, handling, labeling, marking, and placarding of 
hazardous materials; and (3) the preparation, execution, and use of 
shipping documents related to hazardous material and requirements 
related to the number, contents, and placement of these documents. 49 
U.S.C. 5125(b).
    SPCMA appeals the definitions for ``loading incidental to 
movement'' and ``unloading incidental to movement'' adopted in the 
October 30, 2003 final rule, asserting that the definitions are 
inconsistent with Sec.  5101(12) of Federal hazmat law, which defines 
``transportation'' as ``the movement of property and loading, 
unloading, and storage incidental to the movement.'' 49 U.S.C. 
5102(12). ``DOT infers that the descriptor phrase `incidental to 
movement' applies to `movement,' `loading,' and `unloading.' We believe 
that the descriptor phrase `incidental to movement' applies only to 
`storage.' '' (SPCMA) This issue was discussed in detail in the 
preamble to the October 30, 2003 final rule (68 FR 61914). SPCMA offers 
no new information to support its view beyond its stated belief; 
therefore, the appeal is denied.

B. Relationship of HMR to OSHA, EPA, and ATF Requirements

    Several appellants raise concerns about the explanations offered in 
the preamble to the October 30, 2003 final rule concerning the 
relationship of the HMR to requirements applicable to hazardous 
materials promulgated by OSHA, EPA, and ATF. The October 30, 2003 final 
rule indicated that persons who perform regulated functions under the 
HMR and facilities at which such functions are performed may be subject 
to applicable standards and regulations of other Federal agencies, such 
as OSHA regulations applicable to physical structures, EPA regulations 
for risk management and community right-to-know, and ATF regulations 
concerning the handling of explosives.
    DGAC suggests that ``the way to give effect to all of the enabling 
statutes (EPA, OSHA, and DOT) is to recognize, for example, that state 
OSHA regulations apply to workers in many different industries, many of 
which are unrelated to transportation. These regulations may be more 
stringent in any given state; however, where they apply to 
transportation functions they

[[Page 20024]]

must remain consistent with the hazardous materials regulations. Under 
this statutory construction scheme, OSHA's regulations applicable to 
construction workers may vary from state-to-state; however, those 
regulations as applied to transportation workers must be uniform and 
not conflict with the hazardous materials regulations.'' (DGAC) We 
agree that non-Federal requirements applicable to hazardous materials 
pre-transportation or transportation functions must be consistent with 
the HMR. Indeed, as we stated several times in the preamble to the 
October 30, 2003 final rule, a non-Federal requirement governing pre-
transportation or transportation functions or a non-Federal requirement 
applicable to the design, construction, maintenance, repair, and 
requalification of packagings used to transport hazardous materials in 
commerce may be preempted if the requirement fails the preemption 
criteria in Federal hazmat law. We also note that, separate from the 
preemption criteria in 49 U.S.C. 5125, a non-Federal requirement 
affecting transportation, including the transportation of hazardous 
materials, may also be preempted under the commerce clause of the 
United States Constitution or other statutes, such as 49 U.S.C. 20106, 
31141. For example, section 20106 provides that:

    Laws, regulations, and orders related to railroad safety and 
laws, regulations, and orders related to railroad security shall be 
nationally uniform to the extent practicable. A State may adopt or 
continue in force a law, regulation, or order related to railroad 
safety or security until the Secretary of Transportation ( with 
respect to railroad safety matters), or the Secretary of Homeland 
Security ( with respect to railroad security matters, prescribes a 
regulation or issues an order covering the subject matter of the 
State requirement. A State may adopt or continue in force an 
additional or more stringent law, regulation, or order related to 
railroad safety or security when the law, regulation, or order--
    (1) is necessary to eliminate or reduce an essentially local 
safety or security hazard;
    (2) is not incompatible with a law, regulation, or order of the 
United States Government; and
    (3) does not unreasonably burden interstate commerce.

    We disagree with the appellant, however, that Federal hazmat law 
precludes other Federal agencies or their state counterparts from 
regulating transportation workers who may perform functions regulated 
under the HMR. As discussed in detail in the preamble to the October 
30, 2003 final rule, the HMR may regulate the performance of a pre-
transportation or transportation function under the HMR; however, OSHA 
standards may address the protective measures that must be in place to 
ensure the safety of the person performing the pre-transportation or 
transportation function (68 FR 61924-31). Both DOT and OSHA are 
regulating functions or activities as specified in each agency's 
respective authorizing statutes. Federal hazmat law requires that 
regulations governing the performance of pre-transportation functions 
regulated by DOT must be consistent across jurisdictional lines; the 
OHSA Act permits states or localities to impose more stringent 
requirements for worker protection than are specified in OSHA 
standards.
    It is important to note that we have well-established relationships 
with EPA, OSHA, and ATF and consult frequently about jurisdictional 
issues. The discussions of these relationships in the October 30, 2003 
final rule reflect determinations made over a number of years as to the 
extent of each agency's authority over hazardous materials at 
facilities. The October 30, 2003 final rule does not break new ground 
in this area nor does it change these long-standing determinations; 
rather it explains each agency's regulatory authority and provides 
guidance for the regulated industry on each agency's jurisdiction and 
areas of overlapping jurisdiction.
    In its appeal, IME asks us to make a specific determination as to 
the preeminence of the HMR over long-standing OSHA standards applicable 
to transportation functions that appear to conflict with the HMR. IME 
cites OSHA regulations for materials classification, placarding, 
labeling, and incident reporting. As we noted in the preamble to the 
October 30, 2003 final rule, it is not appropriate for DOT to attempt 
to clarify the applicability of other Federal agencies' statutes or 
regulations to particular functions or activities. OSHA frequently 
consults with us as to the applicability of the HMR to specific 
functions and generally defers to DOT on questions related to the 
transportation of hazardous materials. However, questions as to the 
applicability of EPA, OSHA, or ATF standards and regulations and 
suggestions for revising or updating EPA, OSHA, or ATF standards and 
regulations should be directed to the appropriate EPA, OSHA, or ATF 
office.
    For the reasons outlined above, the DGAC, IME, SPCMA, and USWAG 
appeals of the October 30, 2003 final rule concerning the relationship 
of the HMR to standards and regulations promulgated by EPA, OSHA, and 
ATF are denied.

C. Preemption of State/Local Laws and Regulations

    A number of appellants express concern that the October 30, 2003 
final rule permits non-Federal jurisdictions to impose non-uniform, 
inconsistent, and contradictory requirements on hazardous materials 
transportation. For example, one appellant asserts that, under the 
October 30, 2003 final rule, ``[t]he [HMR] will apply when the tank 
cars are loaded and during transportation, but the proposed rules would 
allow states or localities to assume regulatory jurisdiction--perhaps 
even to the point of banning shipments--once they are placed on 
industry tracks. * * * [T]he same tank car on the same industry track 
could be subject to DOT jurisdiction one day and local jurisdiction the 
next. * * * [Subjecting rail tank cars to regulation by multiple 
jurisdictions] can lead to nothing but confusion, operational 
difficulty, and extra cost.'' (AGP)
    Another appellant is similarly concerned about the potential for 
non-uniform regulatory requirements. ``The final rule would seem to say 
a [rail car] is DOT-covered when filled, but not before. It also would 
seem to say [a rail car] stops being DOT-covered after being filled, 
but before a shipping document is created, and yet comes back into the 
sphere of DOT preemption when that paperwork is generated. This seems 
illogical to us, and we are not certain that this is what the agency 
actually intended. * * * When DOT withdraws from the regulatory field, 
local or other Federal rules will click on; then when DOT's system 
reengages it apparently will preempt those rules.'' (Eastman)
    Appellants appear to have misunderstood the October 30, 2003 final 
rule. First, it is important to note that DOT specification packagings, 
such as rail tank cars, cargo tank motor vehicles, and cylinders, are 
subject to DOT regulation at all times that the packaging is marked to 
indicate that it conforms to the applicable specification requirements. 
Thus, each DOT specification rail tank car must be designed and 
constructed in accordance with applicable requirements and must be 
maintained and repaired in accordance with applicable requirements. 
These requirements apply at all times that the rail tank car is marked 
to indicate that it complies with DOT specification requirements, 
whether the car is empty or loaded with hazardous materials and whether 
the car is awaiting pickup by a carrier, in the carrier's possession, 
or delivered to a consignee. Under the Federal hazmat law, a non-
Federal entity may impose

[[Page 20025]]

requirements on DOT specification packagings only if those requirements 
are substantively the same as the DOT requirements. 49 U.S.C. 
5125(b)(1)(E). Thus, a rail tank car is ``DOT-covered'' for purposes of 
conformance with DOT specification requirements.
    Second, the October 30, 2003 final rule codifies in the HMR long-
standing, well-established administrative determinations as to the 
applicability of the HMR to specific functions and activities. Thus, 
under the October 30, 2003 final rule, the HMR apply, as they do now, 
to pre-transportation functions such as filling a rail tank car and 
preparing shipping papers. Further, under the October 30, 2003 final 
rule, the HMR apply, as they do now, to transportation functions, which 
are defined as loading incidental to movement, unloading incidental to 
movement, and storage incidental to movement. It is not correct that a 
rail car is ``DOT-covered'' when filled; rather, as is currently the 
case, the filling or loading operation is subject to any applicable HMR 
requirements and is subject to the preemption provisions of Federal 
hazmat law. It is not correct that a rail car ``stops being DOT-
covered'' after being filled; rather, as is currently the case, storage 
of a filled or loaded rail car prior to its pick-up by a rail carrier 
is not storage incidental to movement and so is not subject to HMR 
requirements applicable to such storage. It is not correct that a rail 
car ``comes back into the sphere of DOT preemption when [a shipping 
paper] is created''; rather, as is currently the case, the creation of 
a shipping paper is a regulated function that must be performed in 
accordance with the HMR and is subject to the preemption provisions of 
Sec.  5125 of Federal hazmat law. Moreover, as already noted, a non-
Federal safety law or regulation affecting the transportation of 
hazardous materials may be preempted under 49 U.S.C. 20106. CSX Transp. 
Inc. v. Public Util. Comm'n of Ohio, 901 F. 2d 497 (6th Cir. 1990) 
cert. denied, 498 U.S. 1066 (1991).
    A more accurate description of the regulations that apply to a rail 
tank car used to transport hazardous materials follows:
    1. The rail tank car is designed, constructed, maintained, and 
repaired in accordance with all applicable DOT specification 
requirements and is marked to indicate that it conforms to these 
requirements. As is currently the case, the specification requirements 
apply at all times that the marking is in place, including when the car 
is empty, during any loading or unloading operations, and while the car 
is in storage whether or not such storage meets the definition of 
``storage incidental to movement.'' PHMSA cannot envision any 
circumstance where the broad preemptive scope of 49 U.S.C. 20106 would 
allow a non-Federal entity to regulate the design, construction, 
maintenance, or repair of a DOT specification rail tank car in any 
manner.
    2. As is currently the case, functions performed to prepare a rail 
tank car for transportation in commerce must be performed in accordance 
with applicable DOT specification requirements. Such functions include, 
but are not limited to, classifying the hazardous material, filling the 
rail tank car, securing closures on the rail tank car, placing placards 
on the rail tank car, and preparing shipping papers for the shipment. 
These pre-transportation functions are regulated under the HMR 
irrespective of the entity performing the function. In the absence of a 
local safety or security hazard, 49 U.S.C. 20106 preempts any non-
Federal regulation of these pre-transportation functions and, even if 
such a local safety or security hazard exists, 49 U.S.C. 5125 provides 
that (unless there is a waiver of preemption) a non-Federal entity may 
not impose requirements for pre-transportation functions that are not 
substantively the same as the DOT requirements. Persons performing pre-
transportation functions and facilities at which pre-transportation 
functions are performed may be subject to Federal requirements 
applicable to worker or environmental protection; non-Federal entities 
may impose more stringent worker or environmental protection 
requirements so long as those requirements do not interfere or conflict 
with the performance of the pre-transportation function that is 
regulated under the HMR or with the specification requirements 
applicable to the packaging that will be used for the shipment. Persons 
performing pre-transportation functions and facilities at which pre-
transportation functions are performed may also be subject to Federal 
requirements applicable to the handling and storage of explosives at 
fixed facilities.
    3. As is currently the case, storage of a filled rail tank car at 
the consignor's facility while awaiting pick-up by a rail carrier is 
not subject to HMR requirements applicable to such storage. Note, 
however, that specification requirements applicable to the rail tank 
car continue to apply during such storage. Note as well that, as 
discussed in the October 30, 2003 final rule, for purposes of 
enforcement of the HMR, we would expect the person offering the rail 
tank car for transportation to be able to demonstrate compliance with 
all applicable pre-transportation requirements at the time the 
hazardous material is staged for pick-up by a carrier and the consignor 
or his agent signs the shipping paper. Even in the absence of a signed 
shipping paper, the offeror may be responsible for assuring compliance 
with specific pre-transportation requirements if other factors indicate 
that a particular pre-transportation activity has been completed. (See 
discussion at 68 FR 61911-61912. For a more complete discussion of 
offeror responsibilities under the HMR, see the NPRM published 
September 24, 2004, 69 FR 57245.) Non-Federal entities may impose more 
stringent worker or environmental protection requirements applicable to 
such storage so long as those requirements do not interfere with the 
performance of pre-transportation functions regulated under the HMR or 
affect the DOT specification packaging requirements that apply to the 
rail tank car.
    4. As is currently the case, once a rail tank car is picked up by a 
rail carrier for transportation, all applicable HMR requirements apply 
to such transportation, including while the rail tank car is 
temporarily stored after its pick-up by the rail carrier and prior to 
its delivery to the consignee. Non-Federal entities may not impose 
requirements on the transportation in commerce of a rail tank car that 
are preempted under the criteria in 49 U.S.C. 5125 and 20106.
    5. As is currently the case, once the rail tank car is delivered to 
the consignee, storage of the car on private track or private siding is 
not subject to regulation under the HMR. Note, however, that 
specification requirements applicable to the rail tank car continue to 
apply during such storage. Non-Federal entities may impose more 
stringent worker or environmental protection requirements applicable to 
such storage so long as those requirements do not affect the DOT 
specification packaging requirements that apply to the rail tank car.
    6. Consignee-conducted rail tank car unloading operations are not 
subject to regulation under the HMR. Non-Federal entities may impose 
more stringent worker protection or environmental protection 
requirements applicable to such unloading operations so long as those 
requirements do not affect the DOT specification packaging requirements 
that apply to the rail tank car.

[[Page 20026]]

    7. As is currently the case, for consignees who ship empty rail 
tank cars that contain a residue of a hazardous material, storage of 
such tank cars on private track is not subject to regulation under the 
HMR. Non-Federal entities may impose more stringent worker protection 
or environmental protection requirements applicable to such storage so 
long as those requirements do not affect the DOT specification 
packaging requirements that apply to the rail tank car.
    8. As is currently the case, for residue shipments in rail tank 
cars, functions performed to prepare the rail tank car for 
transportation in commerce must be performed in accordance with 
applicable DOT specification requirements. Such functions include 
classifying the hazardous material, securing closures on the rail tank 
car, placing placards on the rail tank car, and preparing shipping 
papers for the shipment. These pre-transportation functions are 
regulated under the HMR irrespective of the entity performing the 
function. In the absence of a local safety or security hazard, 49 
U.S.C. 20106 preempts any non-Federal regulation of these pre-
transportation functions and, even if such a local safety or security 
hazard exists, 49 U.S.C. 5125 provides that (unless there is a waiver 
of preemption) a non-Federal entity may not impose requirements for 
pre-transportation functions that are not substantively the same as the 
DOT requirements. Persons performing pre-transportation functions and 
facilities at which pre-transportation functions are performed may be 
subject to Federal requirements applicable to worker or environmental 
protection; non-Federal entities may impose more stringent worker or 
environmental protection requirements so long as those requirements do 
not interfere with the performance of the pre-transportation function 
that is regulated under the HMR.
    Appellants ``acknowledge that there are Federal, state, and local 
laws and regulations in force that may affect the transportation of 
hazardous materials. We are concerned that * * * statements in the 
final rule * * * may be read as encouraging the promulgation of 
hundreds of constraints and conflicting requirements contrary to the 
precept that our nation cannot function effectively without a national 
system of transportation regulation.'' (DGAC) We do not agree that the 
October 30, 2003 final rule will encourage non-Federal entities to 
enact ``hundreds of constraints and conflicting requirements'' 
applicable to the transportation of hazardous materials in commerce. 
The October 30, 2003 final rule does not impose new preemption 
standards; rather, it restates the current preemption standards in the 
Federal hazmat law and clarifies their applicability to certain 
functions and operations. PHMSA will continue to apply the preemption 
standards in Federal hazmat law on a case-by-case basis, considering 
the effect of a non-Federal requirement on the transportation of 
hazardous materials in commerce as we make our determinations. While 
PHMSA's determinations under 49 U.S.C. 5125(d) consider only the 
preemption criteria in Federal hazmat law, non-Federal requirements 
that fail the preemption criteria in any Federal law are preempted.
    DGAC notes that ``[PHMSA] failed to provide a list of past 
[preemption] findings under the obstacle test'' and asks us to include 
such a list in the preemption paragraph of Sec.  171.8. We do not agree 
that this is necessary. PHMSA's Office of the Chief Counsel has 
included on its Web site at https://rspa-atty.dot.gov/ a detailed index 
to preemption of state and local laws and regulations under Federal 
hazmat law with links to individual preemption determination