Introduction to CFR 49 and 13 CCR

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Lesson Goal:

Lesson Objectives:

Upon completion of this course the student will be able to:

Recommended Time:

Materials Required:

Standard:

ACTION:

You may follow along in your Student Guide (PDF in Course Materials Area) by opening to Chapter 2 Introduction to CFR 49 and 13 CCR. We will begin on page 2-4, paragraph I "Origin and Authorities". However, it would be just as well to just read the documents below.

DISCUSSION 1:

When this nation's founding fathers decided to write a constitution they considered the problem of trade among the states. Prior to that time each state sort of felt like an independent country and there were times when free trade among them was stifled by state laws. Therefore, Article 1, Section 8 (the entire text of that section is included below) which states, in part, that:

"The Congress shall have the power to...regulate commerce...among the several states",

was written into the constitution.

Later the Tenth Amendment (which is also included below) was added to further clarify their intent. This amendment to the constitution states that:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".

Since the constitution only grants congress the authority to regulate commerce among the states, and does not prohibit the individual states from regulating commerce within the respective state, the federal government only has the power (or authority) to regulate Interstate Commerce (Commerce among more than one state). Each individual state retains the authority to regulate commerce wholly within a that state (intrastate commerce).

That seems fairly straight forward. However, if you look at Title 49, United States Code, section 5103 (included below) it gives the Secretary of the Department of Transportation the authority to regulate the transportation of hazardous materials in both interstate and intrastate commerce. Section 5102 defines commerce as:

"...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".

So it would certainly appear that the federal government (specifically DOT) can regulate hazardous materials transportation in interstate as well as intrastate commerce. Go figure.

Anyway, that is how it stands at the present. Now back to our little history lesson.

The earliest reference I have been able to find relates to the regulation of hazardous materials transportation during the Civil War (1861 - 1865). Those regulations were based on English common-law principles and applied only to the transportation of explosives via rail. They required that the hazard be identified, that adequate packaging be utilized, and that a clear warning of the hazard be provided to the carrier. Not very extensive.

The first actual federal law was effective on July 3, 1866, and regulated the transportation of explosives and flammable material. It appears to still only apply to rail. They didn't have cars and trucks and did not seem to be concerned with transportation by vessel.

Then on February 28, 1871, a law was passed (46 USC 170) regulating the transportation of hazardous materials on passenger vessels while in the navigable waters of the United States. This was regulated by the Department of the Treasury.

In the late 19th century several states attempted to regulate interstate railroads (not just with reference to hazardous materials transportation, but that was a part of it). The railroads sued the states and it went as far as the United States Supreme Court. In 1886 they published their ruling and it said that the states could not regulate interstate railroads. That clearly gave the federal government the authority, and responsibility, for regulating interstate railroads, including their transportation of hazardous materials.

Also late in the 19th century, the American Railroad Association (ARA) [an association of interstate railroad carriers] established the "Bureau for the Safe Transportation of Explosives and Other Dangerous Articles". This bureau developed rules for transporting hazardous materials on railroads. Those rules were the origin of the current regulation scheme.

On February 4, 1887, supported by the Supreme Court ruling in 1886, Congress passed the "Interstate Commerce Act" (24 Stat. 529). Pursuant to that act the Interstate Commerce Commission (ICC) was established. Initially they only regulated railroads but later they assumed responsibility for regulating other modes of transportation.

The "Explosives and Combustibles Act of 1908" (later called the "Explosives and Other Dangerous Articles Act" [EODA]) was the origin of modern hazardous materials regulations. It authorized the ICC to regulate Packing, Marking, Loading, and Handling of explosives and other dangerous articles while in transit [18 USC 831 - 835].

Sometime during this period, the American Railroad Association (ARA), "Bureau for the Safe Transportation of Explosives and Other Dangerous Articles" became the "Association of American Railroads (AAR), Bureau of Explosives (BOE)" and they continued to develop standards for the transportation of hazardous materials. In 1911, the ICC adopted those regulations as part of the federal regulations. After that, the AAR continued to assist ICC in developing uniform requirements for the transportation of hazardous materials. Most of those regulations were developed by carriers and shippers and the ICC rarely made any changes to them. The regulations required that dangerous articles be transported with "...no appreciable danger to persons or property" and that "...the best known practical means..." be used to safely transport those materials.

In the mid-1930s it was noticed that photographic film became fogged when shipped by US mail near radioactive material (RAM). So the ICC began to regulate the shipments of RAM. Also in the 1930s, highway transportation was added to the regulatory responsibility of the ICC.

The 1930 Civil Aeronautics Act created the Civil Aeronautics Board (CAB) and in the 1940s the responsibility for regulating air shipments of hazardous materials was assigned to them. In 1958 the Federal Aviation Act [Public Law 85-726, August 23, 1958] created the Federal Aviation Administration (FAA). That administration assumed all non-economic regulatory functions of the CAB which included the regulation of air transport of hazardous materials.

The Coast Guard was established by congress on January 28, 1915 but they were not involved in hazardous materials regulation until World War II. During the war they were assigned the responsibility for regulating the transportation of marine bulk flammable material. They were required to adopt many of the ICC regulations governing classification, marking, labeling, packing, etc. [46 USC 170(7)(a)].

For the 20 years after World War II the regulation of hazardous materials transportation just plugged along with no spectacular changes. The ICC pretty much continued to adopt AAR's regulatory recommendations into the federal regulations. Then the "Department of Transportation Act of 1966" [PL 89-670][49 USC 1651] was passed and went in to effect on April 1, 1967. This law created the "Department of Transportation (DOT)" and assigned the responsibility for the regulation of hazardous materials transportation to that Department. In 1968 DOT published docket HM-7 stating their intent to revise and simplify all of the hazardous materials transportation regulations. Not much came directly from this declaration.

Then Congress passes "The Hazardous Materials Transportation Control Act of 1970 (HMTCA)" [Title 111 of Public Law 91-458][49 USC 1761]. This law required DOT to establish staff, facilities, and a central reporting system and to review, report, and recommend changes necessary for the safe transportation of hazardous materials. However, Congress never allocated funding so DOT was unable to implement the provisions of this act.

On January 3, 1975, Congress passed the "Hazardous Material Transportation Act (HMTA)" [PL 93-633][Title 49 USC 1801 to 1811]. This act incorporated most of the provisions from the HMTCA and added a few more. Funding was provided for this act and it was implemented fully. All Hazardous Materials Regulations (HMR) were issued pursuant to this law and were codified in Title 49 Code of Federal Regulations (CFR). The Research and Special Programs Administration (RSPA) was established and assigned the duty of promulgating and administering the HMRs.

But Congress wasn't done yet. The "Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA)" [49 USC 1801 to 1819] was passed and signed into law on November 16, 1990. In that law the secretary of DOT was assigned responsibility for designating hazardous materials [49 USC 1803] and the list of what was designated as hazardous materials can be found in 49 CFR 172.101 Table (HMT). The secretary was further tasked to issue regulations governing Hazardous Materials transportation safety [49 USC 1804(a)(1)]. The regulations issued under this law will be found in parts 107 and 171 to 179 of Title 49 Code of Federal Regulations. As it happens, parts 171 to 179 are exactly the focus of this course.

The HMTUSA is also the first time DOT to responsibility for regulating Hazardous Materials transportation in interstate and intrastate transportation. That was published in the regulations in 49 CFR 171.1(a)(1) and has not changed much since that time.

Wait, there's more. Congress passed the "Hazardous Materials Transportation Authorization Act (HMTAA)" in 1994 [PL 103-311]. Among other things it changes the section numbers for 49 USC (for HazMat anyway) from 1801 - 1819 to 5101 - 5127. Those sections can be found in Title 49-United States Code-Transportation, Subtitle III--General and Intermodal Programs, Chapter 51--Transportation of Hazardous Material. This law also added some other provisions such as the study of transporting hazmat near prisons, fiber drums, and the "Buy America" program. But those are all outside the previews of this course.

The most significant recent change, other than the PATRIOT Act, was the "Norman Y. Mineta Research and Special Programs Improvement Act [PL 108-426]" [49 USC 108 & 112] signed by President Bush on November 30, 2004. This act established the Pipeline and Hazardous Materials Safety Administration (PHMSA) as a separate administration from the research organization. PHMSA assumed the responsibility for administering the HMR from RSPA. And that required thousands of pages of changes in the HMR in order to replace all the occurrences of "RSPA" with the new acronym "PHMSA". Your tax dollars at work!

Much has been done with the regulations since September 11, 2001 and most has to do with security and the PATRIOT Act. The history of security regulations and the PATRIOT Act will be discussed later in Chapter 11 of this course.

DISCUSSION 2:

State:

Once again we must refer to the Tenth Amendment to the United States Constitution for state authority to regulate hazardous materials transportation. It says that:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

According to Article 1, section 8 of the US Constitution, the regulation of interstate commerce is delegated to the United States. The regulation of intrastate commerce is not delegated to the United States nor prohibited to the states. Therefore, the state should be able to regulate intrastate commerce. However, federal law makes it interstate transportation if the transportation "affects" interstate commerce (see 49 USC 5102 below). So it would appear that US DOT regulates all transportation of hazardous materials.

However, the states can't enforce federal regulations unless they are adopted by the state as state regulations. California has adopted much of CFR 49 (at least the parts we are going to cover) as state regulations in Title 13 California Code of Regulations (CCR) and the California Highway Patrol is the principle enforcement agency.

The states did not get significantly involved in policing Hazardous Materials transportation until the 1970s and then only when it became apparent that federal resources were inadequate to effectively enforce the federal regulations after some RAM incidents. Then the DOT, Atomic Energy Commission (AEC), and nine states came up with the "State Surveillance of Radioactive Materials Transportation (SSRMT)" in 1973. This group studied the regulatory noncompliance of carriers and transporters of RAM. That study pointed out the need for state enforcement couple with federal aid to the states for that enforcement.

From 1981 to 1986 the "State Hazardous Materials Enforcement Development (SHMED)" program was developed. This program was designed to provide federal assistance to states for the enforcement of all hazardous materials regulations with emphasis on highway transportation. It was also intended to promote uniformity of enforcement by all the involved states.

The successor program to SHMED is the "Motor Carrier Safety Assistance Program (MCSAP)". [Generally pronounced mick-sap] This is a federal grant program intended to assist state capability to enforce Motor Carrier Safety Regulations. To qualify for the grant a state must adopt Motor Carrier Safety Regulations (49 CFR parts 390 to 399) and HMR (49 CFR parts 171 to 173 and 177 to 178). California has pretty much done that and is part of the MCSAP.

On top of the federal regulations adopted by the state, a state may promulgate its own regulations. In California, section 2402 of the California Vehicle Code (CVC) gives the Commissioner of the California Highway Patrol the authority to adopt regulations necessary to carry out the duties of the department. CVC 34500 states:

The department shall regulate the safe operation of the following vehicle:

And sub-section (g) of that section lists:

"(g) Any truck, or any combination of a truck and any other vehicle, transporting hazardous materials."

Well that is all fine and good but it only applies to trucks or trucks in combination with another vehicle. What if a Volkswagon or a moped is transporting hazardous materials? Do they get a free ride? Ooooh noo! Just check CVC 27903, which I have included below and you will see that it takes care of that little loophole.

"...any vehicle transporting any explosive, blasting agent, flammable liquid, flammable solid, oxidizing material, corrosive, compressed gas, poison, radioactive material, or other hazardous materials, of the type and in quantities that require the display of placards or markings on the vehicle exterior by the United States Department of Transportation regulations (49 C.F.R., Parts 172, 173, and 177), shall display the placards and markings in the manner and under conditions prescribed by those regulations of the United States Department of Transportation."

So the state is fully authorized to write regulations governing the transportation of Hazardous Materials within the state of California. Those regulations can be found in Title 13 California Code Regulations, Article 3, Chapter 6.

However, the feds did not give the state free rein in this matter. Federal regulations preempt state regulations if there is a conflict (What a surprise). Title 49 USC 5125 states that any requirement of a state or political subdivision is preempted if:

Compliance with both the state or political subdivision requirement and the HMTA or the regulations adopted thereunder is impossible; or (Dual compliance Test)

The state or political subdivision requirement is an obstacle to the accomplishment and execution of the HMTA or its regulations. (Obstacle Test)

Essentially, state regulations may not conflict with or be inconsistent with federal regulations.

Now that we have seen where these regulations come from I would like to discuss a couple of important definitions.

U.S. Constitution - Article 1 Section 8
Article 1 - The Legislative Branch

Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S. Constitution - Amendment 10
Powers of the States and People

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

California Vehicle Code

ACTION:

Follow along in your Student Guide (PDF in Course Materials Area) by opening to Chapter 2 Introduction to 49 CFR/13CCR.  We will be on page 2-14, paragraph II.A Title 49 CFR.

ACTION:

Follow along in your Student Guide (PDF in Course Materials Area) by opening to Chapter 2 Introduction to 49 CFR/13CCR.  We will be on page 2-15, paragraph II.B Title 13 CCR.

ACTION:

Follow along in your Student Guide (PDF in Course Materials Area) by opening to Chapter 2 Introduction to 49 CFR/13CCR. In the back of the chapter you will find "Title 49 Code of Federal Regulations - Rules of Construction" beginning on page 2-A-1.

NOW FOR A QUICK QUIZ TO SEE IF YOU WERE LISTENING.

(Don't worry, this is not submitted or graded. It is just an opportunity to test your knowledge in this subject.)

QUESTION 1:

If you wanted to look up the definition of "HazMat" where would you look in 49 CFR?

B 172.101

C Part 177

D 171.8

E Part 174

QUESTION 2:

If you want information about the placarding requirements you would go to what Subpart?

B D

C G

D C

E F

QUESTION 3:

Specifications for packagings is found in which part?

B 175

C 176

D 177

E 178

After you have finished this little quiz, go on to the next lesson: Chapter 3 - Definitions and Hazard Classes.

ANSWER 1 A:

Nope. 173.3 is packaging and exceptions.

Try again.

Go to: Question 1 | Top

ANSWER 1 B:

Sorry, but that is the HazMat table.

Try again.

Go to: Question 1 | Top

ANSWER 1 C:

Sorry, that's the mode specific part for highway transportation.

Try again.

Go to: Question 1 | Top

ANSWER 1 D:

Now you're talking. 171.8 is you HazMat dictionary.

Go to: Question 1 | Top

ANSWER 1 E:

This is the mode specific part for rail.

Try again.

Go to: Question 1 | Top

ANSWER 2 A:

Sorry, Subpart A is for general information.

Try again.

Go to: Question 2 | Top

ANSWER 2 B:

Subpart D is marking.

Try again.

Go to: Question 2 | Top

ANSWER 2 C:

Subpart G is Emergency Response Information.

Try again.

Go to: Question 2 | Top

ANSWER 2 D:

Subpart C is for Shipping Papers.

Try again.

Go to: Question 2 | Top

ANSWER 2 E:

Right, Subpart F is placarding.

Go to: Question 2 | Top

ANSWER 3 A:

Sorry, Part 174 is mode specific for rail transportation.

Try again.

Go to: Question 3 | Top

ANSWER 3 B:

Sorry, but Part 175 is mode specific for air transportation.

Try again.

Go to: Question 3 | Top

ANSWER 3 C:

Sorry, but Part 176 is mode specific for vessel.

Try again.

Go to: Question 3 | Top

ANSWER 3 D:

Nope, this is mode specific for highway.

Try again.

Go to: Question 3 | Top

ANSWER 3 E:

There you go. Part 178 is specifications for packaging.

Go to: Question 3 | Top