Hazmat 101 News -November 2003

US DOT Clarifies the Applicability of the Hazmat Regs to Loading, Unloading and Storage

Over the years, there has been confusion about whether loading, unloading, and storage preceding or following the movement of hazardous materials in transportation are part of transportation in commerce, and thus covered by the Hazardous Materials Regulations (HMR). With a final rule published in the October 30, 2003 Federal Register, the Research and Special Programs Administration (RSPA), an agency of the U.S. Department of Transportation (DOT), revised the HMR to clarify the applicability of the HMR.

The changes restate  the status quo as it was reflected in regulatory interpretations, except for the tank car unloading.  In this action, RSPA:

• Lists in the HMR specific functions to which the HMR apply and identify the types of persons or entities responsible for compliance.
• Includes in the HMR an indication that fixed facilities, shippers and carriers may also be subject to applicable standards and regulations of other Federal agencies.
• Lists in the HMR examples of activities not subject to the HMR.
• Lists in the HMR statutory language under which non-federal governments may be precluded from regulating certain areas under the preemptive provisions of the federal hazmat law.

To clarify applicability of the HMR, RSPA separated regulated functions into three categories:

• Pre-transportation functions: regulated functions performed prior to beginning of transportation (see Table 1)
• Transportation: regulated functions performed as part of the actual movement of the materials in commerce (see Table 2).
• Package specifications: regulated functions for the design, manufacture, marking and use of DOT specification packagings.

Some regulated functions are listed both in the pre-transportation functions category and the transportation functions category. For example, loading is considered a  pre-transportation function if performed by the offeror prior to the carrier's arrival for pickup of the materials for transportation. If loading is done by the carrier or the offeror in the presence of the carrier, it is considered a transportation function. Loading is a regulated function regardless of who does the loading.

According to the final rule,  "transportation in commerce" begins when a carrier takes possession of a hazardous material for the purpose of transporting it and continues until the package containing the hazardous material arrives at the destination indicated on a shipping document, package marking, or other medium, or, in the case of a rail car, until the car arrives at a private track or siding. For a private motor carrier, transportation in commerce begins when a motor vehicle driver takes possession of a hazardous material for the purpose of transporting it and continues until the driver relinquishes possession of the package containing the hazardous material at its destination and is no longer responsible for performing functions subject to the HMR with respect to that particular package.

The only change in the applicability of the HMR from past interpretations has to  do with tank car unloading. It is currently regulated whether it is done by the carrier or the consignee.  To provide consistency with other modes of transportation, the unloading of rail cars at fixed facilities by consignees after delivery by the carrier will no longer be regulated.  The requirement for securing the rail car against movement and to use caution signs for the protection of the rail crew remains in effect, and it applies to both loading and unloading of tank cars. Transloading of tank cars in transportation is still regulated.

In this final rule, RSPA also incorporated into the HMR provisions to allow remote monitoring of tank cars during tank car unloading, and provisions to allow tank car to stand with unloading connections attached when no product is being transferred. Previously, these situations could only be authorized by applying for a DOT Exemption.

Who is affected

This final rule affects shippers, carriers and consignees. The regulatory action enhance understanding of the applicability of the HMR by listing in the HMR regulated functions, and person responsible  to comply.

The unloading of tank cars that contain hazardous materials performed by facility personnel at fixed facilities after the carrier leaves will no longer be a regulated function.  As a result:

• DOT regulatory requirements for attendance and transfers will not apply.
• Mandatory Hazmat Employee training for tank car unloaders who do not perform other regulated functions will not apply.  (Note: the preparation of tank cars that contain residue offered for transportation is still a regulated function.)
• DOT requirements for mandatory security measures will not apply to the receipt of these tank cars if they are unloaded by facility personnel.
• The receipt of these rail will not count toward the threshold determination for RSPA Registration of shippers and carriers per 49 CFR Part 107.
• Certain type of incidents that occur during loading or unloading of tank cars reportable under 49 CFR 171.15 and 171.16 will not be subject to the DOT incident notification requirement unless the carrier is present. The responsibility for reporting these incidents lies with the carrier.
• Consignees will not need a DOT exemption to authorize  the unloading of  tank cars containing hazardous materials to remain standing with the unloading connections attached when no product is being transferred.

More Information

For more information and resources see the October 30, 2003 Federal Register and the applicability tables,  below.

Applicability of the HMR 
        Table 1 Pre-Transportation Functions 
        Table 2 What is Transportation 
        Table 3 Functions not subject to the requirements of the HMR