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Applicability of the Hazardous Materials Regulations to a ``Person Who Offers'' a Hazardous Material for Transportation in Commerce
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: July 28, 2005 (Volume 70, Number 144)]
[Rules and Regulations]
[Page 43638-43644]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy05-7]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 171
[Docket No. PHMSA-04-19173 (HM-223A)]
RIN 2137-AE04
Applicability of the Hazardous Materials Regulations to a
``Person Who Offers'' a Hazardous Material for Transportation in Commerce
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: PHMSA is amending the Hazardous Materials Regulations to add a
definition for ``person who offers or offeror.'' The definition adopted
in this final rule codifies long-standing interpretations and
administrative determinations on the applicability of those regulations.
DATES: This final rule is effective October 1, 2005.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, 202-366-4400.
SUPPLEMENTARY INFORMATION:
I. Background
On September 24, 2004, the Research and Special Programs
Administration--the predecessor agency to the Pipeline and Hazardous
Materials Safety Administration (PHMSA)--published a notice of proposed
rulemaking (NPRM; 69 FR 57245) proposing to add a definition for
``person who offers or offeror'' to the Hazardous Materials Regulations
(HMR; 49 CFR parts 171-180). Consistent with previously issued
administrative determinations, as discussed in the NPRM (69 FR 57247-
48) and placed in the docket for this rulemaking, we proposed to define
``person who offers or offeror'' to mean ``[a]ny person who does either
or both of the following: (i) Performs, or is responsible for
performing, any pre-transportation function required under [the HMR]
for transportation of the hazardous material [or]
(ii) Tenders or makes
the hazardous material available to a carrier for transportation in
commerce.'' The proposed definition specifically excluded a carrier
that transfers, interlines, or interchanges hazardous materials to
another carrier for continued transportation when the carrier does not
perform any pre-transportation functions associated with the shipment.
We further proposed to clarify that an offeror or a carrier may rely on
information provided by a prior offeror or carrier unless the offeror
or carrier ``knows, or in the exercise of reasonable care, should
know'' that the information provided is incorrect.
II. Summary of Final Rule
In this final rule, we are making the following revisions to the HMR:
? We are defining ``person who offers or offeror'' to mean
any person who performs or is responsible for performing any pre-
transportation function required by the HMR or who tenders or makes the
hazardous material available to a carrier for transportation in
commerce. A carrier is not an offeror when it performs a function as a
condition of accepting a hazardous material for transportation in
commerce or when it transfers a hazardous material to another carrier
for continued transportation without performing a pre-transportation
function.
? We are clarifying that there may be more than one offeror
of a hazardous material and that each offeror is responsible only for
the specific pre-transportation functions that it performs or is
required to perform.
? We are clarifying that each offeror or carrier may rely on
information provided by a previous offeror or carrier unless the
offeror or carrier knows or, a reasonable person acting in the
circumstances and exercising reasonable care, would have knowledge that
the information provided is incorrect.
III. Comments to the NPRM
We received 16 comments to the NPRM from industry associations and
individual shippers and carriers. Most commenters are supportive of the
goals of this rulemaking, but raise concerns related to the specific
definition proposed and its impact on both offerors and carriers. These
comments are discussed in detail below.
Several commenters raise issues that are beyond the scope of this
rulemaking. For example, United Air Lines, and the Air Transport
Association reiterate their objections to a formal interpretation,
published February 23, 2003, that clarified the timing of ``offer'' and
``acceptance'' of passenger baggage; they request a comprehensive
rulemaking on this subject. Because that issue is beyond the scope of
this rulemaking, it is not addressed in this final rule.
A. Reasonable Reliance and Liability
As noted above, the NPRM proposed to clarify in Sec. 171.2 that an
offeror or carrier of a hazardous material may rely on information
provided by a previous offeror or carrier in the absence of knowledge
that the information is incorrect. Several commenters suggest that the
language proposed in the NPRM is ambiguous and should be clarified.
``The `should know' standard should be interpreted as meaning that a
carrier cannot rely on information given to the carrier when the
carrier actually has credible information that the information provided
by the offeror is incorrect.'' (Association of American Railroads)
Several commenters object to the use of the phrase ``should know'' in
the NPRM, noting that a ``carrier must be permitted to rely upon [the
shipper's certification]
and conclude that pre-transportation functions
have been performed in accordance with all hazardous materials
regulations.'' (American Trucking Associations) These commenters
suggest that we should more closely follow the statutory
[[Page 43639]]
language in Federal hazardous materials transportation law (Federal
hazmat law; 49 U.S.C. 5101 et seq.). Section 5123(a)(1) of Federal
hazmat law provides that:
A person acts knowingly when--
(A) The person has actual knowledge of the facts giving rise to
the violation; or
(B) A reasonable person acting in the circumstances and
exercising reasonable care would have that knowledge.
We agree with commenters that the language proposed in Sec. 171.2
should reflect the standard for ``knowingly'' established in Federal
hazmat law. Therefore, in this final rule, we are revising paragraphs
(b) and (f) of Sec. 171.2 (proposed as paragraphs (a) and (b) of Sec.
171.2 in the NPRM) for consistency with Federal hazmat law.
Note that a carrier that knows that information accompanying a
hazardous materials shipment is incorrect may not accept the shipment
for transportation unless and until the information has been corrected
and any discrepancies involving this shipment have been resolved.
Indeed, a carrier that knows that a hazardous materials shipment does
not comply with the HMR in any respect (e.g., packaging, markings,
labels, shipping paper) may not accept the shipment for transportation
unless and until the problems are corrected and any discrepancies resolved.
B. Person Who Offers and Pre-Transportation Functions
A number of commenters express concern about the definition for
``person who offers or offeror'' proposed in the NPRM as it applies to
carriers who may perform pre-transportation functions. These commenters
support the specific language clarifying that a carrier that interlines
a hazardous materials shipment is not an offeror when it performs no
pre-transportation functions, but suggest that this provision of the
NRPM does not ``deliver the intended certainty.'' (International Vessel
Operators Hazardous Materials Association (VOHMA) and World Shipping
Council (WSC)) They assert that the determination of ``when a carrier
might become an `offeror' * * * is further confused by the statement in
[HM-223] that suggests that who performs a certain function (not what
that function is) may determine whether that function is a
`transportation' function or a `pre-transportation' function.''
Referring to statements in the preamble to the HM-223 final rule that
``fill[ing] and clos[ing] a bulk or non-bulk packaging'' may be a
``pre-transportation function'' when performed by a shipper or a
``transportation'' function when performed by a carrier, VOHMA and WSC
state that ``a carrier can never be an `offeror' by virtue of
performing a pre-transportation function, because such a function
performed by a carrier is deemed to be a transportation function'' and
``the proposed language at 171.8(2) has no meaning.'' These commenters
state that, because
certain functions (such as verifying and creating documentation) are
or may be performed at multiple states in the transportation chain
by both shippers and carriers[,] * * * allocating responsibility for
those functions on the basis of whether they are performed by a
carrier or a shipper, or on the basis of whether they are performed
before or after the initial carrier takes possession of the cargo,
might simply provide no guidance at all with respect to certain functions.
Similarly, several commenters express concern that a carrier would
be determined to be an ``offeror'' when performing pre-transportation
functions. These commenters note that many pre-transportation functions
are essential components of the transportation services carriers
provide their customers, such as preparing shipping papers, providing
and maintaining emergency response information, and reviewing shipping
papers to verify compliance with the HMR. ``When railroads perform
these functions as a transporter (excluding the situation where a
railroad is preparing its own hazardous materials for transportation),
the hazardous materials are already in transportation. It is
nonsensical to consider a carrier as performing pre-transportation
functions after the hazardous materials are in transportation.''
(Association of American Railroads (AAR)) AAR suggests modifying the
second paragraph of the proposed definition of ``person who offers or
offeror'' to provide that a carrier is not an offeror whenever it
performs ``a task integral to the transportation of hazardous material
that would otherwise be classified as a pre-transportation function.''
Another commenter notes that reviewing shipping papers to verify
their compliance with the HMR or their international equivalents, which
is defined as a pre-transportation function, may be performed by a
carrier as a ``mandated function of `acceptance' for transportation of
hazardous materials.'' (Currie Associates) This commenter suggests that
we add specific language to Sec. 171.2 to indicate that the
performance of a function required as a condition of acceptance of
hazardous materials offered for transportation does not make a carrier
an offeror if it performs no other pre-transportation functions.
These comments illustrate the difficulty of defining the status of
a ``person who offers or offeror'' based solely on the performance of a
specific function, as opposed to the proper focus of whether the
function is part of ``preparing'' a shipment of hazardous material for
transportation in commerce--including the functions performed by a
carrier or freight forwarder preparing the shipment for continued
transportation by a succeeding carrier. As explained in the preamble to
the HM-223 final rule and recognized in comments to the NPRM, certain
activities ``may be considered both pre-transportation and
transportation functions'' and may be performed by a person who
prepares a shipment for transportation or a person who accepts and
transports the shipment. 68 FR at 61909. For example, ``blocking and
bracing and segregation of packages in a transport vehicle are
functions frequently performed by carrier personnel. However, shipper
personnel may also perform such functions, particularly when loading
hazardous materials into freight containers. These are regulated
functions under the HMR, whether performed by shipper or carrier
personnel.'' Id. These functions are ``pre-transportation functions''
whenever they are performed in the course of preparing the shipment for
transportation, by an original offeror who transports the shipment
itself (as a private carrier) or who tenders the shipment to a common
or private carrier for transportation--or by a carrier or freight
forwarder who loads a freight container and then tenders the loaded
container to another carrier for transportation. An initial carrier who
loads a freight container is a ``person who offers or offeror'' when it
tenders the loaded container to a succeeding carrier and, if the
hazardous materials in the container are not properly blocked, braced,
and segregated, the initial carrier has violated the requirement to
``offer'' hazardous materials in accordance with the HMR.
In a similar manner, a carrier or freight forwarder who prepares
hazardous material shipping documentation that is transmitted to a
succeeding carrier, in association with the hazardous material
shipment, is a ``person who offers or offeror'' because it performed a
pre-transportation function in the course of preparing the shipment for
transportation by the succeeding carrier. In doing so, the carrier or
freight forwarder may rely on the information it received from the
[[Page 43640]]
original offeror (or a prior carrier), unless it ``knows or, acting in
the circumstances and exercising reasonable care, would have knowledge
that the information provided by the offeror or prior carrier is
incorrect.'' 49 CFR 171.2(b), (f).
From their comments, it appears that carriers are concerned, at
least in part, with the responsibility for the shipment that is
conferred by application of the term ``person who offers or offeror.''
For example, MHF Logistical Solutions (MHF) states that the requirement
for a ``person who offers a hazardous material for transportation'' to
``comply with all applicable requirements of this subchapter'' (Sec.
171.2(b)) should be clarified to make it ``clear that an offeror is
responsible only for correct performance of the function he performs or
is contracted to perform. * * * [T]he responsibility of each offeror
should not extend to functions for which he has no direct
responsibility.'' MHF adds that an intermediate party such as a
``transportation logistics provider * * * has limited direct knowledge
of the material in the load, and accepts the manifest from the owner
for delivery to the railroad without accepting any contractual
obligation to verify the correctness of the manifest.'' Similarly, the
Institute of Makers of Explosives (IME) recommends ``a more simplified
approach,'' suggesting that ``DOT should expressly authorize those in
the transportation stream receiving and transferring hazardous
materials shipments to rely on the information certified and provided
on shipping papers by the original offeror.''
We are sympathetic to commenters' concerns that they not be held
responsible for the performance of pre-transportation functions over
which they have no control or direct responsibility. We are adopting in
Sec. 171.2 the language proposed in the NPRM to clarify that each
offeror is responsible only for the specific pre-transportation
functions it performs or is required to perform. At the same time, the
``simplified approach'' suggested by IME is not appropriate, as that
would absolve everyone in the ``transportation stream'' who may receive
and transfer hazardous materials shipments from the responsibility to
make sure that the shipment conforms to all applicable HMR
requirements. As noted above and discussed in detail in the preamble to
the NPRM, offerors and carriers may rely on information provided by
previous offerors or carriers, but that reliance is not absolute. An
offeror or carrier that knows or should have known that the information
is incorrect violates Federal hazmat law.
We agree with commenters that a carrier that performs functions as
part of the process of accepting a hazardous material for
transportation in commerce--functions that would, in other contexts, be
considered pre-transportation functions--should not be considered a
``person who offers or offeror'' for purposes of the HMR. For example,
a carrier who reviews a shipping paper accompanying a shipment of
hazardous material that was tendered by an offeror before accepting
that shipment for transportation in commerce, or who transfers without
change information from a shipping paper to a shipping document for its
own use, is not a ``person who offers or offeror''. Therefore, in this
final rule, we are adding a sentence in the definition of ``person who
offers or offeror'' in Sec. 171.8 to indicate that a carrier that
performs a function required by the HMR as a condition of acceptance of
hazardous materials offered for transportation in commerce (e.g.,
reviewing shipping papers, examining packages to identify any
discrepancies or problems, or preparing shipping documents for its own
use) is not an offeror when it performs no other pre-transportation
functions. Of course, in performing its carrier functions, the carrier
must also exercise reasonable care.
C. Joint and Several Liability
The Radiopharmaceutical Shippers and Carriers Conference asks us to
``reject'' that part of a formal interpretation published by RSPA in
1988 (55 FR 6761) that stated that, in the situation where more than
one person is responsible for performing offeror functions, ``each such
person may be held jointly and severally liable for all or some of the
`offeror' responsibilities under the HMR.'' We note with respect to
this comment that the concept of ``joint and several liability'' does
not strictly apply to violations of the HMR when there are multiple
persons; rather, each person is liable for its own violations that may
involve noncompliance in: (1) Preparing a shipment of hazardous
material for transportation (i.e., improperly performing or failing to
perform a pre-transportation function); (2) accepting for
transportation a shipment of hazardous material that does not conform
to the requirements in the HMR; or (3) failing to handle or transport a
shipment of hazardous material in the manner required by the HMR. Thus,
each person who knowingly violates an ``offeror'' requirement in the
HMR may be assessed a civil penalty, and payment of a penalty by one
violator does not satisfy a penalty assessed against another violator
(unlike ``joint and several liability,'' where payment by one party
satisfies the obligations of all liable parties).
Further, we explicitly reject any notion, advanced by some
commenters, that Federal agencies that enforce the HMR attempt to hold
one party liable for another party's violation of the HMR. In other
words, when a carrier accepts and transports a shipment of hazardous
material that is not properly prepared for transportation in commerce,
with actual or constructive knowledge of the noncompliance, the
carrier's liability is based on its own improper acceptance and
transportation of that shipment--not the violation of the person who
improperly prepared the shipment. The application of ``constructive
knowledge''--when ``a reasonable person acting in the circumstances and
exercising reasonable care would have * * * actual knowledge of the
facts giving rise to the violation'' of the law or the HMR--is set
forth in RSPA's prior interpretation published in the Federal Register,
63 FR 30411, 30412 (June 4, 1998), where we stated that:
[A] carrier knowingly violates the HMR when the carrier accepts
or transports a hazardous material with actual or constructive
knowledge that a package contains a hazardous material which has not
been packaged, marked, labeled, or described on a shipping paper as
required by the HMR. This means that a carrier may not ignore
readily apparent facts that indicate that either (1) a shipment
declared to contain a hazardous material is not properly packaged,
marked, labeled, placarded, or described on a shipping paper, or (2)
a shipment actually contains a hazardous material governed by the
HMR despite the fact that it is not marked, labeled, placarded, or
described on a shipping paper as containing a hazardous material.
* * * * *
At the same time, an offeror who fails to properly declare (and
prepare) a shipment of hazardous materials bears the primary
responsibility for a hidden shipment. Whenever hazardous materials
have not been shipped in compliance with the HMR, DOT generally will
attempt to identify and bring an enforcement action against the
person who first caused the transportation of a noncomplying
shipment * * *.
To the extent that any carrier, regardless of the mode of
transportation, is truly ``innocent'' in accepting an undeclared or
hidden shipment of hazardous materials, it lacks the knowledge
required for assessment of a civil penalty.
The separate proceeding in Docket No. OST-01-10380 will consider the
appropriateness of providing further discussion or examples of when a
[[Page 43641]]
carrier may be found to have sufficient knowledge for civil liability.
D. Definition of the Term ``Shipper''
Several persons ask about our use of the word ``shipper'' in the
HMR and letter interpretations. FPL Group states that RSPA has also
used the term ``shipper'' in interpretation letters and that word is
``printed on common straight bills of lading that can be purchased at
truck stops and from hazmat supply companies.'' FPL concludes that ``a
`shipper' and an `offeror' are the same'', and it recommends that the
term ``shipper'' either be defined or added to the definition of
``offeror'' in order to avoid confusion. IME indicates that it assumes
that we mean ``offeror'' when we use the word ``shipper.'' The National
Automobile Dealers Associate (NADA) states that the proposed definition
of ``person who offers or offeror'' does not ``clarify its relationship
to the term `shipper,' also currently undefined.'' NADA also states
that there should be ``only one `person who offers or offeror' for any
given shipment of hazardous materials, and that such person is the one
who `tenders or makes a hazardous material available to a carrier for
transportation in commerce, notwithstanding the extent to which such
person actually performs applicable pre-transportation functions.' ''
Currie Associates complains that the practice of a railroad listing
a prior (or successor) ocean carrier as the ``shipper'' on a train
consist (because the railroads' ``computerized systems are designed to
list the `billable party' as the shipper'') has caused ``unfounded
charges being filed against the steamship line as the intermodal
`offeror''' when it carries forward ``the emergency response telephone
number'' listed on the shipping papers prepared by the original shipper
(offeror). VOHMA and WSC also state that ``ocean carriers are placed in
the impossible situation of having to choose between being cited for a
violation of the HMR when they pass along the original emergency
response telephone contact number to a connecting rail carrier on the
one hand, or, on the other hand, providing their own telephone number--
a number that will be essentially useless to a first responder,'' and
they proposed that the ``exclusion'' language in subparagraph (2) of
the proposed definition of ``person who offers or offeror'' be revised
as follows:
Notwithstanding anything to the contrary in subsection (1), no
carrier shall be deemed to be an offeror by virtue of the fact that
such carrier transfers, interlines, or interchanges (either between
or within transportation modes) hazardous material to another
carrier for transportation. No description of such a carrier in any
commercial document as a ``shipper,'' ``customer,'' ``tenderer,''
``offeror,'' or other similar description shall change the operation
of the rule set forth in the immediately preceding sentence. Without
limiting the generality of the foregoing, no transferring,
interlining, or interchanging carrier shall be deemed to be the
offeror of a hazardous material for transportation for the purposes
of section 172.604 of this title (emergency response telephone
number) or any successor section thereto.
Current Federal hazardous material transportation law has a history
of almost 100 years, and the current HMR evolved over that period of
time. When the word ``shipper'' is used, such as in the title of Part
173--``Shippers-General Requirements for Shipments and Packagings''--
that word refers to a person who prepares a shipment for
transportation. As already discussed, that person may also be a
carrier, when it prepares the shipment for its own transportation (as a
private carrier) or for transportation by a succeeding carrier. The
word ``shipper'' is not used in the HMR in a commercial or contractual
sense that denotes the economic arrangements of a shipment. We
understand that, in certain circumstances, the consignee or recipient
of a shipment may be listed as the ``shipper'' on a bill of lading,
despite the fact that this person had nothing to do with preparing the
shipment for transportation or the transportation itself. However, the
designation of a person as a ``shipper'' on a bill of lading or other
documents associated with a shipment of hazardous material is not
determinative of whether that person is a ``person who offers or
offeror'' for purposes of the HMR.
At this time, we do not believe it is necessary to modify the HMR
to clarify the meaning of the term ``shipper.'' Moreover, any such
modification would be beyond the scope of this rulemaking. However, as
we continue to assess the effectiveness of the revisions adopted in
this final rule, we may decide to clarify the term ``shipper'' in a
future rulemaking.
E. Emergency Response Telephone Number
As noted above, VOHMA and WSC express concern about enforcement
issues associated with transferring an emergency response telephone
number provided by the original offeror of a shipment to shipping
documents prepared by a subsequent offeror or carrier to facilitate the
continued movement of a hazardous material. In addition, IME asks DOT
to clarify whether a freight forwarder or other carrier may
legitimately transfer an emergency response telephone number ``from
that origin offeror's shipping paper to other shipping documents made
necessary by intermodal transportation.'' IME states that ``[e]mergency
response telephone numbers and other essential information, such as the
description of the hazardous material, from origin offeror's shipping
papers are routinely transferred by entities in the transportation
chain to forwarding shipping documents.'' Further, the American
Chemistry Council commented that, in order for an organization such as
CHEMTREC, which provides emergency response services, including a 24-
hour telephone answering service, under contract to hazardous materials
shippers and carriers, to be able to provide detailed emergency
response information,
the offeror identified on the shipping paper must in fact be
registered. In other words, either the ``preceding offeror'' should
be shown on the shipping paper, or the party that has taken on
offeror functions (such as a freight forwarder) should itself be
registered. The Council therefore requests that RSPA make clear to
the regulated community the importance of retaining the linkage
between an offeror and the organization that provides the offeror
with emergency response telephone service.
As stated in the NPRM, a carrier or freight forwarder that prepares
a new shipping paper must comply with all applicable requirements, but
it may rely on information provided by the original offeror in
preparing the new shipping paper. A carrier ``may not accept for
transportation or transport a shipment of hazardous material when the
carrier is aware (or should be aware) of facts indicating that the
emergency response telephone number is not operative and does not meet
the requirements of [49 CFR]
172.604(b).'' RSPA's February 10, 2004
letter to Hyundai America Shipping Agency, Inc. and June 27, 1996
letter to ``K'' Line America, Inc. in the docket. This principle was
restated in the preamble to the NPRM, which reads:
[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).
69 FR at 57248 (internal quotations and citations omitted).
PHMSA agrees with the commenters that the original offeror is
likely to have the most detailed information concerning the specific
material and its
[[Page 43642]]
hazards and therefore is best situated ``to provide specific
information relative to the hazards of the materials being transported
and provide immediate initial emergency response guidance until further
specific information can be obtained* * *relative to long term
mitigation actions.'' 54 FR 27138, 27142 (1989). Thus, a carrier or
subsequent entity in the transportation chain may transfer the
emergency response number provided on the original shipping paper by
the original offeror to subsequent shipping documentation unless he or
she knows (or should have known) that the number is not operative or
does not meet the requirements in Sec. 172.604 of the HMR.
The comments cited above and separate proceedings have made us
aware of the potential problems that may arise when the original
offeror contracts with an agency or organization that accepts
responsibility for providing detailed emergency response information
pursuant to Sec. 172.604(b), but the identity of the original offeror
is not set forth on the shipping paper in the possession of the carrier
at the time of an incident during transportation. We plan to address
this issue in greater detail in a separate rulemaking. In the meantime,
the issue of the linkage between a third-party emergency response
services provider, such as CHEMTREC, and the person who arranges to use
such services to comply with Sec. 172.604(b) of the HMR should be
handled through the contract that governs the relationship. Thus, a
person who arranges with a third-party to provide emergency response
services required by the HMR should ensure that the shipping
documentation that accompanies the shipment includes the information
necessary to enable the third-party provider to identify the person who
has contracted for emergency response services. This may necessitate
special arrangements with subsequent offerors or carriers that will
transfer the information provided by the original offeror to subsequent
shipping documentation.
F. Transferring, Interlining, or Interchanging Hazardous Materials
Shipments
In this final rule, we include in the definition of the term
``person who offers or offeror'' a provision that a carrier that
transfers a hazardous material to another carrier for continued
transportation is not an offeror when it performs no pre-transportation
functions. We recognize that the terms ``interline,'' and
``interchange'' have specific meanings within the context of the
functions performed and that these meanings may not, in fact, be
applicable to all modes of transportation. Therefore, in this final
rule, we are revising the language proposed in the NPRM to indicate
that a carrier who transfers a hazardous material to another carrier
for continued transportation is not an offeror when it performs no pre-
transportation functions. In this context, the term ``transfer'' means
the shipment is physically passed or conveyed from one carrier to
another for continued transportation in commerce.
We are aware that there also may be uncertainty over the use of the
term ``tender'' in the definition for ``person who offers or offeror''
adopted in this final rule. The term ``tender'' is used to mean that
the person who offers the hazardous material for transportation makes
the hazardous material physically available to the originating carrier
to begin its transportation in commerce.
G. Miscellaneous Issue
In response to a question from a commenter, we confirm that a
``data entry person'' who prepares a ``carrier masterbill'' is a hazmat
employee who must be trained and tested in accordance with the
requirements in 49 CFR 172.704--even if the shipment and its accompanying
documentation are subsequently checked by a trained individual.
IV. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule 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 final
rule, we are codifying 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. Codifying 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 final 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 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 definition of ``person who offers
or offeror'' simply restates and codifies long-standing interpretations
on the applicability of the HMR without making any substantive change
and, thus, does 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. No person who submitted comments on the NPRM provided
any information to show that this final rule increases or decreases the
costs of compliance with the HMR.
C. Executive Order 13132 (Federalism)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rule makes no change in the 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, PHMSA believes that nothing in this rule will preempt any
State law or regulation or have any substantial direct effect or
sufficient federalism implications that limit the policymaking
discretion of the States. PHMSA did not receive any comment from a
State or other interested party on whether it believed any State
requirement is affected by the adoption of this rule.
D. Executive Order 13175
This final 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 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
[[Page 43643]]
have a significant economic impact on a substantial number of small
entities.
Need and legal basis for the rule. This final restates and codifies
prior interpretations on the applicability of the HMR to persons who
offer a hazardous material for transportation in commerce. This rule is
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, PHMSA
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 will incur no new costs to comply
with the HMR, because this final rule makes 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 final rule makes no change in the applicability of
the HMR and imposes no new costs of compliance with the HMR
requirements. I hereby certify that the rule does not have a
significant economic impact on a substantial number of small entities.
F. Unfunded Mandates Reform Act of 1995
This final rule does not impose any mandate and thus does not
impose unfunded mandates under the Unfunded Mandates Reform Act of 1995.
G. Paperwork Reduction Act
This final rule does not impose any new information collection
requirements.
H. Environmental Assessment
There are no environmental impacts associated with this final 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.
? In consideration of the foregoing, 49 CFR, subtitle B, chapter I is
amended 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 (b) and (f), to read as follows:
Sec. 171.2 General requirements.
* * * * *
(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 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
[[Page 43644]]
that it performs or is required to perform, and each offeror may rely
on information provided by another offeror, unless that offeror knows
or, a reasonable person, acting in the circumstances and exercising
reasonable care, would have knowledge that the information provided by
the other offeror is incorrect.
* * * * *
(f) No person may transport a hazardous material in commerce unless
the hazardous material is 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, a reasonable
person, acting in the circumstances and exercising reasonable care,
would have knowledge 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 in commerce.
(ii) Tenders or makes the hazardous material available to a carrier
for transportation in commerce.
(2) A carrier is not an offeror when it performs a function
required by this subchapter as a condition of acceptance of a hazardous
material for transportation in commerce (e.g., reviewing shipping
papers, examining packages to ensure that they are in conformance with
this subchapter, or preparing shipping documentation for its own use)
or when it transfers a hazardous material to another carrier for
continued transportation in commerce without performing a pre-
transportation function.
* * * * *
Issued in Washington, DC on July 21, 2005, under authority
delegated in 49 CFR part 1.
Brigham A. McCown,
Deputy Administrator.
[FR Doc. 05-14912 Filed 7-27-05; 8:45 am]
BILLING CODE 4910-60-P