[Federal Register: June 14, 2001 (Volume 66, Number 115)]
[Proposed Rules]
[Page 32419-32449]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn01-34]
[[Page 32419]]
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Part II
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 171, 173, 174, 175, etc.
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage; Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173, 174, 175, 176, 177, and 178
[Docket No. RSPA-98-4952 (HM-223)]
RIN 2137-AC68
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: RSPA is proposing to clarify the applicability of the
Hazardous Materials Regulations (HMR) to specific functions and
activities, including hazardous materials loading and unloading
operations and storage of hazardous materials during transportation. We
propose to list in the HMR pre-transportation and transportation
functions to which the HMR apply. Pre-transportation functions are
functions performed to prepare hazardous materials for movement in
commerce by persons who offer a hazardous material for transportation
or cause a hazardous material to be transported. Transportation
functions are functions performed as part of the actual movement of
hazardous materials in commerce, including loading, unloading, and
storage of hazardous materials that is incidental to their movement. We
propose to clarify that ``transportation in commerce,'' for purposes of
applicability of the HMR, begins when a carrier takes possession of a
hazardous material and continues until the carrier delivers the package
containing the hazardous material to its destination as indicated on
shipping papers.
DATES: Comments. Submit comments by October 12, 2001. To the extent
possible, we will consider comments received after this date in making
our decision on a final rule.
ADDRESSES: Written comments. Submit comments to the Dockets Management
System, U.S. Department of Transportation, Room PL 401, 400 Seventh
Street, SW., Washington, DC 20590-0001. Comments should identify Docket
Number RSPA-98-4952 (HM-223) and be submitted in two copies. If you
wish to receive confirmation of receipt of your written comments,
include a self-addressed, stamped postcard. You may also submit
comments by e-mail by accessing the Dockets Management System web site at
http://dms.dot.gov and following the instructions for submitting a
document electronically.
The Dockets Management System is located on the Plaza level of the
Nassif Building at the Department of Transportation at the above
address. You can review public dockets there between the hours of 9
a.m. and 5 p.m., Monday through Friday, except federal holidays. You
can also review comments on-line at the DOT Dockets Management System
web site at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Susan Gorsky (202) 366-8553, Office of
Hazardous Materials Standards, Research and Special Programs
Administration; or Nancy Machado (202) 366-4400, Office of the Chief
Counsel, Research and Special Programs Administration.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
II. Summary of Issues
III. Analysis of Comments
A. Agency Interpretation of Authorizing Statute
B. Bulk versus Non-Bulk Issues
C. Preemption
D. Pre-transportation Activities and Specification Packagings
E. ``Transportation in Commerce''
F. OSHA and EPA Regulations
IV. Proposal
A. Packaging Specifications
B. Pre-Transportation Functions
C. Transportation that is ``in Commerce''
D. Transportation Functions Subject to the HMR
E. State/Local Requirements and Preemption
F. OSHA Programs and Regulations
G. EPA Programs and Regulations
V. Section-by-Section Review
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Executive Order 13132
C. Executive Order 13084
D. Regulatory Flexibility Act
E. Paperwork Reduction Act
F. Regulation Identifier Number (RIN)
G. Unfunded Mandates Reform Act
H. Environmental Assessment
I. Background
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) are
promulgated under the mandate in 49 U.S.C. 5103(b) that the Secretary
of Transportation ``prescribe regulations for the safe transportation
of hazardous material in intrastate, interstate, and foreign
commerce.'' Section 5103(b)(1)(B) provides that the HMR ``shall govern
safety aspects of the transportation of hazardous material the
Secretary considers appropriate.'' ``Transportation'' is defined as
``the movement of property and loading, unloading, or storage
incidental to the movement.'' 49 U.S.C. 5102(12). ``Commerce'' is
defined 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.'' 49 U.S.C. 5102(1). Neither the statute
nor the HMR defines the terms ``loading incidental to movement,''
``unloading incidental to movement,'' or ``storage incidental to
movement.'' The legislative history of the statute does not clarify
this matter.
The Research and Special Programs Administration (RSPA, we) has
issued a number of interpretations, inconsistency rulings, and
preemption determinations in response to requests from the public for
clarification regarding 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 of hazardous materials are areas of particular confusion
and concern.
On July 29, 1996, we published an advance notice of proposed
rulemaking (ANPRM) seeking comments on the applicability of the HMR to
loading, unloading, and storage of hazardous materials (61 FR 39522).
We also hosted three public meetings at which interested persons were
invited to present ideas, proposals, and recommendations on the
applicability of the HMR. Representatives of the Environmental
Protection Agency (EPA), the Occupational Safety and Health
Administration (OSHA), and DOT's Federal Railroad Administration (FRA)
participated in the public meetings. In addition to DOT, EPA, and OSHA,
more than 200 interested persons participated in the public meetings.
They included representatives of shippers, carriers, warehouses, state
and local public safety agencies, and building and fire code safety
organizations. We also received more than 70 written comments.
On April 27, 1999, we published a supplemental ANPRM (64 FR 22718),
highlighting comments received in response to the 1996 ANPRM and
requesting additional information. In particular, the supplemental
ANPRM discussed the three approaches most commonly suggested by
commenters to the 1996 ANPRM for applying the HMR to hazardous
materials loading, unloading, and storage operations and asked a number
of questions focused on the details of each approach. We
[[Page 32421]]
received more than 60 comments in response to the supplemental ANPRM.
In addition to the above referenced comments, the docket for this
rulemaking also includes over 40 comments originally submitted under
Docket HM-212. On March 27, 2000, we withdrew the NPRM issued under
Docket HM-212 that addressed cargo tank loading and tank car unloading
requirements (65 FR 16161). At the same time, we announced that tank
car unloading issues would be addressed as part of Docket No. RSPA-98-
4952 (HM-223) and comments submitted to Docket HM-212 would be added to
this docket.
The docket for this rulemaking also includes 84 comments and docket
submissions related to a request for a preemption determination
applicable to certain California and Los Angeles County requirements
for handling and transportation of hazardous materials (Docket Nos.
PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R); February 15, 1995; 60 FR
8773). The preemption determination addressed state and county
requirements for rail car storage and unloading of hazardous materials
on consignee property.
II. Summary of Issues
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 of
hazardous materials in intrastate, interstate, and foreign commerce.
The regulations apply 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 packagings or containers (or components thereof) that are
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 regulations govern any safety aspect of hazardous
materials transportation that the Secretary considers appropriate. 49
U.S.C. 5103(b)(1)(B). As noted above, 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).
Nevertheless, Congress does not define with specificity the particular
activities that fall within the terms ``loading,'' ``unloading,'' and
``storage'' used in the statutory definition of ``transportation.''
It is clear that federal hazmat law directs the Secretary of
Transportation to address the safety 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. At the same
time, federal hazmat law 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 of transportation to prepare
hazardous materials for transportation--``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 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.
There is confusion 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 operations and activities related to the transportation of
hazardous materials in commerce. The most obvious area of confusion was
identified in the 1996 and 1999 ANPRMs--which loading, unloading, and
storage activities are incidental to the movement of hazardous
materials in commerce and therefore subject to the HMR. In addition,
there is uncertainty concerning the extent to which state and local
agencies may regulate hazardous materials safety, particularly at fixed
facilities where the lines between pre-transportation, transportation,
and non-transportation operations are not clearly articulated. Although
the interpretations and administrative determinations we have issued
are publicly available, the regulated industry, government agencies,
and Indian tribes have not been consistently aware of their existence
and availability. Further, some of the interpretations and decisions we
have issued need to be revised in light of changes in the Secretary of
Transportation's and other federal agencies' statutory authority. In
this rulemaking, we intend to consolidate, clarify, and revise, as
necessary, these interpretations and administrative decisions and make
them part of the HMR.
In developing this rulemaking, we have four goals. First, we want
to maintain nationally uniform standards applicable to pre-
transportation functions. Second, we want to maintain nationally
uniform standards applicable to transportation functions. Third, we
want to distinguish functions that are subject to the HMR from
functions that are not subject to the HMR. Finally, we want to clarify
that facilities with functions subject to the HMR may also be subject
to federal, state, or local regulations governing occupational safety
and health or environmental protection.
To achieve these goals, in this NPRM we propose a list of specific
functions to which the HMR apply and we identify the types of persons
or entities responsible for compliance with the HMR. In addition, we
propose to include in the HMR an indication that facilities at which
functions regulated by the HMR occur may also be subject to applicable
standards and regulations of other federal agencies. We also propose to
include in the HMR the statutory criteria under which non-federal
governments may be precluded from regulating in certain areas under the
preemption provisions of federal hazmat law.
III. Analysis of Comments
The 1999 supplemental ANPRM discussed in detail the comments we
received in response to our 1996 ANPRM on this issue. There was no
consensus position among commenters to the 1996 ANPRM as to how the HMR
should apply to hazardous materials loading, unloading, and storage
operations. Commenters generally stated that activities performed in
advance of transportation in commerce to prepare hazardous materials
for transportation should be under the exclusive regulatory
jurisdiction of the Secretary of Transportation. Commenters further
stated that activities related to the
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development of specifications for packagings authorized for
transportation of hazardous materials, including all testing,
retesting, reconditioning, and reuse requirements, should be subject to
the Secretary's exclusive regulatory jurisdiction. Similarly,
commenters generally stated that the Secretary of Transportation should
have exclusive regulatory jurisdiction over the movement of hazardous
materials in commerce. However, there was no consensus from commenters
as to which loading, unloading, and storage activities are incidental
to the movement of hazardous materials in commerce and, therefore,
subject to regulation under federal hazmat law and the HMR.
Commenters to the 1996 ANRPM generally supported one of three
different approaches for defining the transportation functions that
fall under the HMR. Many commenters representing hazardous materials
manufacturers, shippers, and transporters suggested that
``transportation in commerce'' begins with an intent to ship a
hazardous material and that transportation functions subject to HMR
requirements should therefore include all activities related to the
handling and storage of such a hazardous material. Other commenters,
primarily representing state and local government environmental
protection agencies, suggested that ``transportation in commerce'' does
not begin until a hazardous material is moving on public roads or
rights-of-way and that only activities involving such movement should
be subject to the requirements in the HMR. Still other commenters,
representing a mix of industry, labor, and state governments, suggested
that ``transportation in commerce'' begins when a carrier accepts a
hazardous material for transportation and that transportation functions
subject to HMR requirements should thus include only carrier activities
related to transportation of the hazardous material.
Most commenters to the 1999 supplemental ANPRM offer amplifications
and clarifications of positions and recommendations submitted in
response to the 1996 ANPRM. As with the comments to the 1996 ANPRM,
commenters emphasize that the HMR should apply to functions performed
in advance of transportation in commerce to prepare a hazardous
material for transportation. However, commenters have fundamental
disagreements as to the specific activities that fall under the term
``transportation in commerce'' and whether and to what extent the HMR
should apply to specific activities.
A. Agency Interpretation of Authorizing Statute
Several commenters assert that ``DOT cannot administratively
determine its own jurisdiction. Jurisdiction, for scope of the
regulations, is determined by Congress, not the agency * * *'' (FMC
Corporation) These commenters suggest that ``each Federal agency's
jurisdiction is determined based upon the intent of Congress when it
passes statutes for that agency to implement. It seems to be unusual
for a Federal agency to seek input from the general public about what
its jurisdiction should be * * *'' (HM-223 Working Group, an ad hoc
organization representing a number of hazardous materials shippers and
carriers) For these commenters, the definition set forth in the law is
sufficient to determine the extent of the Secretary of Transportation's
jurisdiction over hazardous materials transportation. ``The law makes
abundantly clear that DOT's jurisdiction applies to loading, unloading,
and storage incidental to transportation activities.'' (HM-223 Working
Group)
Courts have recognized that where a definitional issue is not
squarely addressed by the plain words of a statute or its legislative
history, the agency administering the statute may exercise its judgment
as to the best means of carrying out the act. See Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct.
2778 (1984). See also Morton V. Ruiz, 415 U.S. 199, 231 (1974) (``The
power of an administrative agency to administer a congressionally
created * * * program necessarily requires the formulation of policy
and the making of rules to fill in any gap left, implicitly or
explicitly, by Congress.''). Courts give considerable weight to
executive department construction of a statutory scheme it is entrusted
to administer--unless the construction is directly contrary to clear
congressional intent. Chevron at 843, 844. See also INS v. Jong Ha
Wang, 450 U.S. 139 (1981).
In ascertaining the best means of carrying out its statutory
authority, it is not unusual for an agency to use the rulemaking
process to solicit ideas from the public. In fact, the Court in Chevron
recognized that an agency, to engage in informed rulemaking, must
consider varying interpretations and the wisdom of its policy on a
continuing basis. Chevron at 863, 864. Congress gave the Secretary
authority to apply the HMR to the safety aspects of hazardous materials
transportation the Secretary considers appropriate. 49 U.S.C.
5103(b)(1)(B). Through this rulemaking, we are asking for public input
regarding the wisdom of extending, narrowing, or simply clarifying
where the HMR apply.
In this instance, federal hazmat law defines transportation as the
``movement of property and loading, unloading, or storage incidental to
the movement.'' Neither the statute nor its legislative history define
which loading, unloading or storage activities or functions are
``incidental'' to the movement of hazardous materials in commerce.
Consequently, as discussed earlier, RSPA has issued numerous
interpretations, inconsistency rulings, and preemption determinations
in response to public requests for clarification regarding the meaning
of ``transportation in commerce'' and whether particular activities are
covered by that term and, as such, covered by the HMR. The lack of
clarity in RSPA's statute and the HMR regarding this issue, as well as
changes in the Secretary of Transportation's and other federal
agencies' statutory authorities, make it necessary for RSPA to
reevaluate and codify its position regarding which loading, unloading,
and storage activities and functions fall within the term
``transportation'' as set forth in federal hazmat law.
B. Bulk Versus Non-Bulk Issues
Several commenters recommend that we focus this rulemaking on bulk
transportation issues only. ``We strongly encourage the agency to
separate bulk handling questions in this rulemaking from those
involving the handling of non-bulk and intermediate bulk packages * * *
[I]t is our view that the vast majority of interest shown by nonfederal
and other federal agencies has been in the handling of bulk loads,
primarily in temporary storage and during unloading of tank cars and
cargo tanks. Here is where the greater risk is perceived * * * In
addition * * * here is where the DOT requirements are perceived as
lacking sufficient detail.'' (The Conference on Safe Transportation of
Hazardous Articles, Inc.) Another commenter states, ``During the 1996
meetings and comments, virtually all concerns expressed by non-federal
and other federal agencies focused on bulk transportation, and almost
all of this concern was concentrated on the highway and rail modes * *
* [W]e recommend that DOT take a phased approach and, in its initial
decisions regarding this docket, address only bulk transport by rail
and highway.'' (FMC Corporation)
While it is true that the initial ANPRM published in 1996 was
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prompted primarily by concerns related to loading, unloading, and
storage of hazardous materials in rail tank cars and, to a lesser
extent, cargo tanks, we do not agree that this rulemaking should be
limited to issues related to bulk transportation of hazardous
materials. Our goal is to articulate a statement of the applicability
of the HMR that will apply across all modes of transportation and to
all types of packagings. The answer to the question of when the
regulation of transportation under the HMR begins and ends should be
the same for all hazardous materials shipments.
C. Preemption
Congress enacted the Hazardous Materials Transportation Act (HMTA)
in 1975 to give the Secretary of Transportation greater authority ``to
protect the Nation adequately against the risks to life and property
which are inherent in the transportation of hazardous materials in
commerce.'' A statutory provision for federal preemption was central to
the HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the
principle of preemption in order to preclude a multiplicity of State
and local regulations and the potential for varying as well as
conflicting regulations in the area of hazardous materials
transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
More recently, a Federal Court of Appeals found that uniformity was the
``linchpin'' in the design of the HMTA, including the 1990 amendments
that expanded the preemption provisions. Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).
The 1990 amendments to the HMTA codified the ``dual compliance''
and ``obstacle'' criteria that RSPA applied in issuing inconsistency
rulings before 1990. As now set forth in 49 U.S.C. 5125(a), these
criteria provide that, in the absence of a waiver of preemption by the
Secretary under 49 U.S.C. 5125(e) or unless it is authorized by another
federal law, a requirement of a state, political subdivision of a
state, or Indian tribe is explicitly preempted if:
(1) Complying with a requirement of the state, political
subdivision or Indian tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) The requirement of the state, political subdivision, or Indian
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out this chapter or a regulation prescribed under this
chapter.
In the 1990 amendments to the HMTA, Congress also added additional
preemption provisions on certain ``covered subject'' areas and with
regard to fees imposed by a state, political subdivision, or Indian
tribe on the transportation of hazardous material. The covered subject
areas are:
(a) The designation, description, and classification of hazardous
material.
(b) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(c) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents.
(d) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
(e) The design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material. 49 U.S.C. 5125(b).
Unless it is authorized by another federal law or a waiver of
preemption from the Secretary of Transportation, a non-federal
requirement in any of these areas is preempted when it is not
``substantively the same'' as federal hazmat law or a regulation issued
under it. 49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the
same'' to mean ``conforms in every significant respect to the federal
requirement. Editorial and other similar de minimis changes are
permitted.'' 49 CFR 107.202(d).
Industry commenters to the two ANPRMs published under this docket
state that ``national uniformity of hazardous materials regulations is
critical'' (American Forest and Paper Association) and support a broad
application of the federal hazmat law's preemption provisions. ``DOT
should continue to preempt non-federal requirements when they frustrate
the safe and efficient transportation of hazardous materials.''
(Association of Waste Hazardous Materials Transporters) ``DOT is the
only agency with a legislative mandate to be the preeminent authority
[for all transportation activities that impact the safe movement of
hazardous materials]. This mandate must guarantee that the safe
transportation of hazardous materials will take place without being
encumbered by any local, state, or federal regulations that would
interfere with such transportation.'' (CF Industries) Further, DOT
should ``[d]evelop instructive guidelines on preemption that track the
functions of a hazmat employee. DOT is the only agency with Federal
preemption authority over state and local regulations and without it,
shippers and carriers alike would be required to comply with many
differing and often conflicting state and local regulations that would
cause confusing and burdensome regulatory schemes.'' (FMC Corporation)
Indeed, ``DOT's failure to assert jurisdiction [with regard to loading
and unloading of bulk containers] invite[s] state and local agencies to
promulgate their own regulations for the loading, unloading, and
incidental activities related to the transportation of hazardous
materials in contravention of the statutory preemption provisions of
[federal hazmat law] * * * Such an invitation is contrary to the goal
of providing uniform national regulations for the safe and efficient
transportation of hazardous materials.'' (National Paint and Coatings
Association)
State and local government agency commenters to the two ANPRMs have
a different view of the preemption provisions of federal hazmat law.
Several of these commenters believe that ``it is imperative that the
HMR not preempt * * * necessary [state or local] regulations, rather
the HMR should establish a minimum standard.'' (New Jersey Department
of Environmental Protection) Other commenters suggest that ``it is
important to distinguish between state standards that are an obstacle
to compliance with HMR and state standards that fill gaps in HMR
without being an obstacle to compliance.'' (California Department of
Toxic Substances Control) Moreover, ``the HMR should at the very least
defer to state and local control. RSPA should respect the rights of
local control. Furthermore, this local control should not be subject to
preemption petitions. Local citizens mandate the involvement of state
and local regulatory agencies.'' (Maine Department of Environmental
Protection) ``DOT should not preempt federal, state, or local
authorities unless it is clearly authorized to do so and provides for
protections at least as stringent as those deemed necessary by federal,
state, and local authorities * * * [G]reat deference should be shown to
other federal, state, and local authorities by DOT, especially
regarding measures designed to protect health, safety, and the
environment. Finally, even where preemption is clearly called for and
authorized, we would urge that other authorities be allowed to address
special, unique local circumstances and conditions.'' (Northeast Waste
Management Officials' Association)
As we have stated, one of the goals of this rulemaking is to assure
nationally uniform standards applicable to
[[Page 32424]]
functions related to preparation for and the actual movement of
hazardous materials in commerce. We agree with industry commenters that
the preemption provisions of federal hazmat law are critical to
achievement of this goal. However, we also agree with state and local
government commenters that state and local governments have a
legitimate role in the regulation of hazardous materials at fixed
facilities and that this role should be accommodated to the extent
possible within the context of a nationally uniform hazardous materials
transportation safety regulatory program.
D. Pre-Transportation Activities and Specification Packagings
Most commenters to both the 1996 and the 1999 ANPRMs state that
activities performed in advance of transportation to prepare a shipment
of hazardous materials for transportation in commerce should be subject
to exclusive federal regulation under the HMR. Such activities include
determining the hazard class of a material, preparing shipping papers,
selecting appropriate packaging, marking and labeling the package, and
placarding the transport vehicle. Similarly, commenters state that
activities related to the specifications for packagings authorized for
transportation of hazardous materials in commerce, including all
testing, retesting, reconditioning, and reuse requirements, should be
subject exclusively to the HMR.
E. ``Transportation in Commerce''
Commenters to the supplemental ANPRM generally indicate that the
major issue for this rulemaking is how the term ``transportation in
commerce'' is applied for purposes of regulation under the HMR. Thus,
commenters addressed questions related to this definition in
considerable detail.
Offeror intent. Commenters who support a broad application of the
term ``transportation in commerce'' to include all activities related
to the handling and storage of a hazardous material that is intended
for shipment generally state that such a broad application is necessary
to assure national uniformity of regulations applicable to the
transportation of hazardous materials. One commenter states that,
absent national uniformity, ``shippers and carriers would be required
to comply with a myriad of different and often conflicting state and
local regulations that would substantially burden the free flow of
goods in * * * commerce, and cause potentially conflicting and
confusing regulatory schemes.'' (HM-223 Working Group) Another suggests
that ``[a]llowing multiple agencies to regulate various aspects of
hazmat transportation (a) unduly burdens interstate commerce, (b)
increases the risk to public safety, (c) increases costs to
transporters, shippers, consignees, and ultimately consumers, and (d)
creates excessive administrative burdens.'' (American Trucking
Associations)
For these commenters, transportation in commerce is a continuum
that begins with an intention to ship a hazardous material and ends
when that hazardous material is unloaded at its ultimate destination.
Included on this continuum are all activities related to preparation of
the hazardous material for shipment; loading of the hazardous material
into a packaging or container authorized for transportation by the HMR;
storage of the package at the offeror's facility prior to its
acceptance by a carrier; intra-facility movements of the package;
movement of the package by rail car, motor vehicle, aircraft, or vessel
to its ultimate destination; storage of the package at any point prior
to its delivery; storage of the package at the facility that is its
ultimate destination; intra-facility movements of the package at its
ultimate destination; and unloading of the hazardous material at its
ultimate destination.
To assure national uniformity, these commenters believe that all of
the above activities should be under the exclusive regulatory authority
of the HMR. We disagree. This approach significantly expands the scope
of the HMR as currently applied to activities that arguably are not
part of ``transportation'' as that term is commonly understood.
Specifically, some activities to which these commenters suggest that
the HMR should apply are neither pre-transportation activities
performed to prepare hazardous materials for transportation in commerce
nor transportation activities that involve the actual movement of
hazardous materials in commerce. For example, storage of a hazardous
material at an offeror facility is not a pre-transportation activity
conducted to prepare the hazardous material for transportation in
commerce. Similarly, storage of a hazardous material at a consignee
facility after delivery by a carrier but before the hazardous material
is removed from a package is not movement of that material in commerce
since movement in commerce is complete.
If we apply the HMR broadly as suggested by some commenters, this
``offeror intent'' approach would have the effect of limiting and,
perhaps, precluding regulation of hazardous materials at fixed
facilities by state and local governments and could affect other
federal programs, as well. Federal, state, and local programs for
environmental protection, worker protection, community right-to-know,
fire protection, building codes, and zoning could be adversely affected
by extending the Secretary of Transportation's regulatory authority to
an expanded set of hazardous materials activities at fixed facilities.
For example, one commenter opposed to this approach suggests that, if
implemented, ``this option would essentially remove all hazardous waste
storage and generator facilities from having to comply with [Resource
Conservation and Recovery Act] storage and accumulation requirements,
allowing unlimited storage in areas [that] might not have secondary
containment or other release controls, simply because the hazardous
waste is packaged in preparation for shipment at some future date.''
(Arkansas Department of Environmental Quality)
Further, the ``offeror intent'' approach to clarifying the term
``transportation in commerce'' could result in a regulatory regime that
would be very difficult both to comply with and enforce. Commenters who
support the ``offeror intent'' approach state that ``intent is a legal
standard. While evidence of intent may not be established by direct
proof, it can be inferred from facts and circumstances.'' (Association
of Waste Hazardous Materials Transporters) Commenters suggest several
possible indicia of ``intent'' for compliance and enforcement
purposes--placing a hazardous material in an authorized packaging or
container, preparing shipping papers, affixing labels to packages, or
statements by the offeror. One commenter states that ``[t]he
combination of packaging marking and labeling/placarding is a clear
indication that the hazardous material is intended for transportation.
There would be no reason to go through this step if the product is not
intended to be transported. The expense associated with selection of a
specification [packaging] is typically greater than non-specification
packaging. Materials, not intended for transportation, would not [be
placed in] specification packaging for intra-plant transfers.''
(Farmland) We do not agree.
An approach to compliance and enforcement that offers no clear
standards either for regulated entities or enforcement officials would
be highly subjective and would require a case-by-case analysis in
almost every instance to
[[Page 32425]]
determine if a particular hazardous materials package was intended for
transportation in commerce and, thus, subject to the requirements of
the HMR. For example, as one commenter states, storing a hazardous
material ``in a DOT approved container does not always signify intent
to transport. Often a 55-gallon drum is an ideal accumulation container
for material [that] may or may not be intended for transportation.''
(Pennsylvania Department of Environmental Protection) Another commenter
notes that ``[m]any facilities accumulate hazardous materials in `DOT
approved' containers, but do not intend to `offer it for
transportation' at that time. Additionally, facilities receive
hazardous materials in DOT approved packaging.'' (Arkansas Department
of Environmental Quality) Further, ``a facility may decide to use DOT
specification packaging to protect employees and patients when moving
waste from healthcare treatment rooms to on-site storage areas even if
disposing of the waste on-site. In addition, a facility may use DOT
specification packaging to fulfill the requirements in OSHA's
Bloodborne Pathogens Standard in a cost-effective manner regardless of
transport.'' (Medical Waste Institute) Using a properly labeled and
marked container also assures compliance with OSHA's hazard
communication regulations, which require consignees to retain the
labels and placards required by the HMR on packages until they have
been emptied.
Similarly, preparation of shipping papers does not always indicate
an imminent intent to transport a hazardous material in commerce.
Shipping papers may be prepared well in advance of package preparation
or, in the case of multiple shipments of the same material, a single
permanent shipping paper may be used for a number of shipments. In the
case of hazardous waste shipments, hazardous waste generators may
``complete a hazardous waste manifest (hazardous materials shipping
paper) days or weeks prior to a prearranged site pick-up * * * some
times without even contacting the transporter.'' (New Jersey Department
of Environmental Protection)
We do not believe that it is possible to develop an enforceable
means of determining the applicability of the HMR to a given shipment
based solely on ``intent.'' As a commenter notes, basing this
determination on an offeror's intent for the package could result in
the following enforcement scenario:
(a) If hazardous materials are on a transportation vehicle at a
loading dock, but fail to have proper USDOT marking, then the
offeror can allege to a USDOT inspector that the materials are not
intended for transportation and are not subject to HMR. Although
this may subject the offeror to requirements of local or state
government, the USDOT inspector is not empowered to enforce those
requirements * * *
(b) Likewise if the inspector was a local or state government
agency inspecting for [hazardous waste compliance] then the offeror
can allege the materials are intended for transportation and are not
subject to local or state government regulations. (New Jersey
Department of Environmental Protection)
It is true that a person's statement with respect to his intent to
offer a package for transportation that contradicts all other facts and
circumstances related to that shipment need not frustrate enforcement
efforts. For example, if a shipper denies that a shipment sitting on a
loading dock with shipping documentation is in fact intended for
transportation, an enforcement official is free to consider that
statement in combination with other facts and circumstances in
determining appropriate enforcement action. However, basing the
applicability of the HMR solely on a determination of a shipper's
intent would generally result in a regulatory regime that would be
confusing for both the regulated industry and federal and state
enforcement personnel.
For the reasons outlined above, we do not agree with commenters who
suggest that offeror intent should be the determining factor for
applicability of the HMR. The ``intent'' approach is inconsistent with
federal statutes that provide OSHA with broad authority to protect
workers from the risks associated with hazardous materials at fixed
facilities. OSHA's authorizing legislation generally prohibits OSHA
from imposing regulations where other federal agencies exercise
statutory authority to issue or enforce regulations applicable to
worker safety. Expanding the scope of the term ``transportation in
commerce'' and, thus, the applicability of the HMR, to include
activities such as storage at offeror or consignee facilities could
hinder OSHA in exercising its statutorily granted authority with
respect to such activities. A broad interpretation of ``transportation
in commerce'' might also adversely affect several EPA programs. (See
``OSHA and EPA Regulations,'' ``OSHA Programs and Regulations,'' and
``EPA Programs and Regulations'' below for a more detailed discussion
of EPA and OSHA statutory authorities and regulatory programs.)
Further, the ``intent'' approach limits the ability of state and
local governments to develop community-based solutions to issues such
as zoning and community right-to-know. Strong preemption authority
under federal hazmat law requires DOT to preempt many state and local
laws and regulations concerning hazardous materials transportation that
are not the same as the federal requirements. Expanding the scope of
the term ``transportation in commerce'' to include the activities
proposed by commenters who advocate the ``intent'' approach would
extend the applicability of the HMR and, consequently, federal hazmat
law's preemption provisions to areas traditionally regulated by state
and local governments. (See ``State/Local Requirements and Preemption''
below for a more detailed discussion of the preemption provisions in
federal hazmat law.)
Movement on public rights-of-way. Most commenters from state and
local government agencies with responsibility for environmental
protection support a narrow application of the term ``transportation in
commerce.'' In their view, transportation in commerce begins when a
transportation vehicle physically leaves an offeror's place of
business. As one commenter states, ``49 U.S.C. 5102(12) defines
transportation as the `movement of property * * *' not the selection of
packaging materials, etc. `Movement of property' constituting
transportation does not occur until the property is on a transport
vehicle. DOT regulations should not apply until `movement' begins on a
public right-of-way, railroad or water or air route.'' (Pennsylvania
Department of Environmental Protection)
Under this approach, transportation in commerce would begin when a
shipment exits an offeror facility and enters a public right-of-way and
ends when the shipment exits the public right-of-way at a facility that
may or may not be the destination indicated on shipping documentation.
Loading of a hazardous material onto a transport vehicle or into a bulk
packaging, unloading of a hazardous material from a transport vehicle
or a bulk packaging, storage of a hazardous material at an offeror
facility, and storage of a hazardous material at a consignee facility
would not fall within the scope of the term ``transportation in
commerce'' and, thus, would not be subject to the HMR. Commenters who
support this approach are concerned that the scope of the HMR not be so
broad as to preempt ``any state, county, or city [hazardous materials]
storage requirement * * * This includes secondary containment, transfer
equipment, operation of transfer
[[Page 32426]]
equipment, storm water systems, storage of incompatible chemicals and
site operating procedures that would protect public health and safety
and the environment.'' (Washington State Department of Ecology)
This approach provides a clear dividing line for determining when a
hazardous material is in transportation in commerce and subject to the
HMR and when such materials are out of transportation and potentially
subject to regulations of EPA, OSHA, or state and local governments.
Thus, this approach enhances both compliance and enforcement. Further,
this approach provides communities with wide latitude to develop
community- or site-specific solutions to threats to safety posed by
hazardous materials. In the words of one commenter, this approach
``respects the rights of states and local governments to maintain their
own regulatory programs, designed to fit their own needs and
priorities. These programs cover a broad range of issues, such as
emergency planning, fire protection, building codes, and hazardous
materials handling safeguards.'' (Maine Department of Environmental
Protection)
However, the flexibility this approach provides to state and local
governments also has the potential to compromise safety by undermining
the national uniformity of the HMR. By narrowly applying the term
``transportation in commerce'' to exclude carrier loading and unloading
operations, for example, this approach permits state and local
governments to regulate such operations and, thus, could subject
hazardous materials carriers to a number of different requirements as
they transport hazardous materials from community to community or from
state to state. Such an outcome would defeat one of the chief purposes
of federal hazmat law, the HMR, and this rulemaking--that is, promotion
of a national, uniform set of standards that apply to the
transportation of hazardous materials in commerce. As one commenter
notes, ``The principle of regulatory uniformity has been the basis for
the safe, efficient transportation of hazardous materials since the
Hazardous Materials Transportation Act * * * was enacted in 1975. Only
DOT has been specifically directed by Congress to provide `greater
uniformity' in the regulation of hazardous materials while in
transportation in order to promote `the public health, welfare, and
safety.' * * * The underlying principle of [federal hazmat law] is that
regulatory uniformity facilitates compliance and enhances safety,
particularly as the law relates to non-federal requirements. [Federal
hazmat law] is not structured as other environmental or worker safety
laws that set minimum standards that can be exceeded by non-federal
entities.'' (Association of Waste Hazardous Materials Transporters)
Further, this approach, like the offeror intent approach discussed
above, is not consistent with federal hazmat law. Under this option,
all loading and unloading operations would be excluded from regulation
under the HMR. However, in defining ``transportation'' as ``the
movement of property and loading, unloading, and storage incidental to
the movement,'' the law clearly intends the Secretary of
Transportation's jurisdiction over hazardous materials in
transportation to include those loading, unloading, and storage
operations that are part of the transportation process.
Carrier possession. Some commenters advocate an approach to
defining transportation in commerce that is keyed to a carrier's
possession of hazardous materials for purposes of transporting it. ``
`Transportation' * * * occurs when a carrier (that is, the entity used
or engaged for the purpose of transport) has control over activities in
which the hazardous material is handled, regardless of mode of
transportation or location of the activity being performed.'' (American
Forest and Paper Association) Under this approach, ``transportation in
commerce'' begins when a carrier accepts and exercises control over a
hazardous material for purposes of transporting it and ends when the
carrier relinquishes control of the shipment. ``Transportation in
commerce'' would include hazardous materials loading and unloading
operations when performed by a carrier and temporary storage of a
hazardous material while in the care, custody, and control of a
carrier. ``Care, custody, and control'' would be defined as ``having
the hazardous materials physically on or in a transport vehicle * * *
[I]n the instances where a * * * carrier controls the loading and/or
unloading operations, the * * * carrier should be held responsible for
the process * * *'' (American Trucking Associations)
This approach provides a definitive line for determining the
applicability of the HMR. Hazardous materials in the care, custody, and
control of a carrier, when acting as such, for purposes of
transportation would be clearly in transportation in commerce and
subject to the HMR. Hazardous materials at offeror or consignee
facilities clearly would not be in transportation in commerce and
subject to applicable state and local government requirements for
storing and handling hazardous materials at fixed facilities.
Further, keying ``transportation in commerce'' to carrier custody
and control of a hazardous material provides hazardous materials
carriers with a nationally uniform transportation safety standard. The
HMR would apply to the transportation operations of hazardous material
carriers. States and local governments could not impose requirements on
these carriers that conflicted with or were inconsistent with the HMR.
At the same time, this approach accommodates state and local
government regulation of hazardous materials at fixed facilities within
their jurisdictions. Issues related to fire protection, emergency
preparedness, community right-to-know, zoning, and building codes, for
example, could be handled by state and local government agencies in the
best position to evaluate problems and develop community-based
solutions. ``State and local laws and ordinances are usually tailored
to meet localized concerns, conditions, and appetencies [that] cannot
be addressed effectively by substituting a one-size-fits-all preemptive
regulation.'' (Arkansas Department of Environmental Quality)
Finally, this approach is consistent with the definition of
``transportation'' contained in federal hazmat law--``the movement of
property and loading, unloading, and storage incidental to the
movement.'' Movement of property necessarily involves a carrier.
Elsewhere, as one commenter notes, Congress stated, ``The phrase
`services in connection with' as used in the definition of
transportation * * * has been uniformly construed to mean services
rendered while [a] shipment is in custody and control of [a] carrier,
or service [that a] carrier is legally obligated to perform (49 USCS
10102, n 6).'' (American Forest and Paper Association)
F. OSHA and EPA Regulations
On December 29, 1970, Congress enacted the Occupational Safety and
Health Act of 1970 (OSH Act) for the purpose of assuring safe and
healthy workplaces. Under the OSH Act, every employer engaged in a
business affecting commerce has a general duty to furnish each of its
employees a workplace free from recognized hazards causing, or likely
to cause, death or serious physical harm. In addition, employers are
required to comply with all safety and health standards issued under
the OSH Act that are applicable to working conditions involved in their
businesses.
[[Page 32427]]
OSHA has promulgated a number of regulations that address the
handling of hazardous materials at fixed facilities. These include
regulations governing process safety management of highly hazardous
chemicals and requirements for handling and storage of 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. In addition, facilities that handle and
store hazardous materials must comply with OSHA regulations that
address more general types of workplace hazards, such as walking and
working surfaces, means of egress, noise, air quality, environmental
control, personal protective equipment, and fire protection.
The mission of the U.S. Environmental Protection Agency is to
protect human health and the natural environment from pollution. More
than a dozen major statutes or laws form the legal basis for EPA's
programs. Several of these statutes establish programs covering
facilities that handle hazardous materials. They include:
The Emergency Planning and Community Right-to-Know Act
(EPCRA; 42 U.S.C. 11011 et seq.) requires facilities to provide
information concerning the hazardous materials they have on site to
states, local planners, fire departments, and, through them, to the
public. This information provides the foundation for both community
emergency response plans and public-industry dialogues on risks and
risk reduction. EPCRA also requires facilities to report releases of
certain hazardous materials to state and local emergency responders.
The Clean Air Act (42 U.S.C. 7401 et seq.) establishes a
general duty for facility owners or operators to identify hazards that
may result from accidental releases of extremely hazardous substances,
design and maintain a safe facility as needed to prevent such releases,
and minimize the consequences of releases that do occur. EPA has
promulgated a list of substances that, in the event of an accidental
release, are known to cause or may be reasonably expected to cause
death, injury, or serious adverse effects to human health or the
environment. EPA also has established a threshold quantity for each
listed chemical. Stationary sources that have more than a threshold
quantity of a regulated substance in a process are subject to the
accident prevention regulations promulgated by EPA, including the
requirement to develop risk management plans.
The Resource Conservation and Recovery Act (RCRA; 42
U.S.C. 321 et seq.) gave EPA the authority to control hazardous waste
from ``cradle to grave.'' This includes the generation, transportation,
treatment, storage, and disposal of hazardous waste. RCRA requires
hazardous waste transportation regulations to be consistent with
transportation regulations issued under federal hazmat law.
The Clean Water Act (33 U.S.C. 1251 et seq.) establishes
authority for the Spill Prevention, Control, and Countermeasure (SPCC)
program for non-transportation-related facilities. The SPCC regulations
are designed to prevent the discharge of oil from non-transportation-
related onshore and offshore facilities into or onto the navigable
waters of the United States or adjoining shorelines.
Commenters to the 1996 and 1999 ANPRMs have varied opinions as to
the appropriate relationships between the HMR and the OSHA regulations
and the HMR and EPA regulations. Commenters generally state that
``workers need to be protected from harm in the workplace and that OSHA
is the lead agency for workplace safety.'' (American Trucking
Associations) In addition, commenters generally recognize the
``importance of protecting against degradation of air, water, and land
(the `total environment') * * * as it relates to the public's well-
being (i.e., beyond the fenceline).'' (American Forest and Paper
Association) Commenters further state that ``[a]ll affected agencies
should share a common goal to avoid duplicative or inconsistent rules
that are often the consequence of competing jurisdictional authority.''
(Association of Waste Hazardous Materials Transporters) However,
commenters do not agree on how this goal can be achieved.
Most commenters accept a degree of shared RSPA-OSHA-EPA
jurisdiction where hazardous materials safety is concerned because
``[t]ransportation of hazardous materials affects and is affected by
regulations of other Federal agencies addressing worker safety and
environmental protection.'' (Utility Solid Waste Activities Group) RSPA
and OSHA may share regulatory responsibility for certain activities
involving hazardous materials because ``[o]ther regulations, not in
conflict with the HMR may enhance safety of the workers, and general
public.'' (Farmland) Thus, ``[w]hen a consignor designates a material
as `hazardous' and classifies it according to the HMR, no other
government agency should be allowed to alter the class or name as a
condition for transport. However, other aspects of the material's
environment can be regulated by other government agencies.''
(Association of Waste Hazardous Materials Transporters) Similarly,
``storage of non-bulk packages in warehouses on the plant site are
subject to applicable fire and building code standards, OSHA and EPA
requirements, and applicable state and local requirements (although
clearly the package itself would remain subject to the HMR).
Operational standards for use of mechanical package handling equipment
should be prescribed by agencies other than DOT, though those agencies
should consult with DOT when developing those standards. Workers who
handle packages after filling on the chemical plant site are subject
primarily to OSHA worker safety standards, but also to DOT standards,
such as training requirements and attendance requirements.'' (HM-223
Working Group) In addition, ``storage at an interim transfer facility
[is] transportation-related and subject to RSPA packaging standards,
[but] the fixed facility itself should not be subject to the HMR, as
standards of other agencies * * * adequately cover this.'' (California
Department of Toxic Substances Control) Further, ``[f]ire codes, zoning
laws, right-to-know, and risk management requirements should apply to
storage of hazardous materials. However, such shipments must remain
under DOT's jurisdiction.'' (E.I Dupont de Nemours and Company) Another
commenter declares, ``Federal, state, and local agencies must be
allowed to fulfill their administrative functions in protecting human
health, safety, and the environment * * * Altogether, these
requirements create safer environments and more effective responses to
discharges.'' (New Jersey Department of Environmental Protection) Where
OSHA and EPA have established comprehensive regulatory programs, such
as OSHA's process safety management program and EPA's risk management
program for manufacturing processes, ``[a]dditional requirements under
the HMR for * * * manufacturing processes would be burdensome and
create confusion by the overlapping of jurisdictional boundaries that
are specifically identified by the preeminent authorities as delineated
for each government agency.'' (PCS Nitrogen)
The relationship of the HMR to the OSHA worker protection
regulations is complicated by a provision in federal
[[Page 32428]]
hazmat law that expressly gives OSHA shared jurisdiction with the
Secretary of Transportation in four specific areas: training, handling
criteria, registration, and motor carrier safety permits. 49 U.S.C.
5107(f)(2). Several commenters believe that this broadening of OSHA's
jurisdiction to non-training areas of hazardous materials
transportation safety resulted from a drafting error that occurred when
Congress enacted the Hazardous Materials Transportation Uniform Safety
Act of 1990, Pub. L. 101-615 (HMTUSA) and was perpetuated when HMTUSA
subsequently was codified at 49 U.S.C. 5101-5127. As one commenter
states, ``[w]hile there was general agreement in 1990 to grant shared
jurisdiction for training with OSHA, it was never intended for DOT to
relinquish its authority in any of the affected areas nor to have
shared jurisdiction in any area besides training. Therefore, before
RSPA can answer the question, in rulemaking, where jurisdictional lines
should be drawn, Congress should amend section 5107 to reflect its
original intent.'' (American Trucking Associations) Another commenter
asserts that those who wrote the 1990 law that allows this shared
jurisdiction agree that the broad grant of authority is the result of a
typographical error. ``At the federal level, there is a presumption
that Congress enacts law with full knowledge of existing law. However,
that is not always the case and unintended consequences can result.
Those who wrote the 1990 provision of law, now codified at 49 U.S.C.
5107(f)(2), which allows OSHA to share jurisdiction with DOT over
hazmat worker training, hazardous materials handling criteria,
permitting of motor carriers of hazardous materials, and the
registration of persons engaged in the transportation of these
materials, have stated this broad grant of authority was the result of
a typographical error and that Congress only intended to affirm OSHA
shared jurisdiction in the area of hazmat worker training. Others may
wish history to be otherwise, but it is not.'' (Association of Waste
Hazardous Materials Transporters)
On the other hand, several commenters see no sound reason for
changing the joint authority in section 5107 by eliminating, altering,
or confusing the current regulatory scheme. ``The law is clear in its
determination of joint responsibility for the training of hazmat
employees * * * We believe the issue was contemplated when Congress
crafted the law and intended there be joint responsibility to ensure
hazmat employers provided the necessary training to provide maximum
coverage for the employee's protection.'' (Brotherhood of Locomotive
Engineers) Some commenters believe that a line of separation to
delineate activities and/or facilities over which the HMR should apply
to the exclusion of OSHA requirements could adversely affect worker
safety. ``[I]t is inevitable that confusion or degradation of existing
requirements could arise if shared jurisdictions are changed. The
training perspective offered by OSHA and its associated requirements
for personal protective equipment; monitoring; medical surveillance;
evacuation for hazmat employees; and hazard communication must be
uniformly administered to all elements of industry. In the haste to
eliminate regulatory overlaps among regulatory agencies it must not be
forgotten that OSHA requirements place an emphasis on employee safety
and that focus should not be diluted to promote more efficient and
effective compliance with safety standards.'' (Brotherhood of
Locomotive Engineers) Another commenter agrees and states, ``[w]ith
respect to the relationship between RSPA and OSHA regulation, [we]
particularly [draw] to RSPA's attention the provision at section
5107(f)(2) of Title 49 of the U.S. Code. That section expressly
provides that regulation by the Secretary of Transportation with
respect to hazmat handling, training, permitting, and other activities
does not oust OSHA from concurrent jurisdiction over those subjects.''
(International Brotherhood of Teamsters)
Based on their respective statutory authorities, both DOT and OSHA
regulate hazardous materials. Prior to 1990, to the extent that DOT's
regulation of hazardous materials and OSHA's regulation of hazardous
materials overlapped, DOT's regulations took precedence. Section
4(b)(1) of the OSH Act provides that nothing in that Act applies to
working conditions of employees where other federal agencies exercise
statutory authority to prescribe or enforce standards or regulations
affecting occupational safety or health. 29 U.S.C. 653(b)(1).
Consequently, where DOT exercised its authority to prescribe or enforce
standards or regulations affecting occupational safety or health in a
particular area, OSHA was precluded from regulating in that same area,
without exception.
In 1990, Congress enacted HMTUSA. Among other things, HMTUSA
limited the preemptive effect of the HMR on OSHA regulations in certain
specified areas. Specifically, section 1805 of the Act was amended to
read as follows:
For purposes of section 653(b)(1) of title 29, no action taken
by the Secretary [of Transportation] pursuant to this section shall
be deemed to be an exercise of statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or
health. 49 U.S.C. App. 1805(b)(3). (Emphasis added.)
This is the so-called ``reverse 4(b)(1)'' provision.
The words ``pursuant to this section,'' found in section 1805(b)(3)
referred to the entirety of Sec. 1805, entitled ``Handling,'' and not
solely to subsection 1805(b)(3), which pertained to training.
Proponents who believe this is a drafting error contend that Congress
intended to use the word ``subsection'' instead of ``section'' in
section 1805(b)(3). They argue that the references back to highway
safety permits and registration make no sense and demonstrate their
point.
The 1994 codification of federal hazmat law, however, reinforced
the interpretation that the words ``pursuant to this section'' referred
to former section 1805 in its entirety. The purpose of this action was
to ``clean-up'' several related federal transportation laws,
``restating'' them in a format and language intended to be easier to
understand without changing substantive content.
The ``reverse 4(b)(1)'' provision was codified at 49 U.S.C. section
5107(f)(2). The language was revised to read as follows:
An action of the Secretary of Transportation under subsections
(a)-(d) of this section and sections 5106, 5108(c)-(g)(1) and (h),
and 5109 of this title is not an exercise, under section 4(b)(1) of
the Occupational Safety and Health Act of 1970 (29 U.S.C.
653(b)(1)), of statutory authority to prescribe or enforce standards
or regulations affecting occupational safety or health.
49 U.S.C. section 5107(f)(2).
Section 5107(f)(2) indicates that RSPA's exercise of authority
under section 5106 (``Handling Criteria'') of federal hazmat law, as
well as under other specified sections, does not constitute an exercise
of authority under section 4(b)(1) of the OSH Act that would result in
preemption of OSHA regulations. Those other specified areas are: (1)
registration under 49 U.S.C. section 5108(c)-(g)(1) and (h); (2) motor
carrier safety permits under 49 U.S.C. section 5109; and (3) hazmat
employee training requirements under 49 U.S.C. section 5107(a)-(d).
Consequently, the plain language of section 5107(f)(2) nullifies the
HMR's preemptive effect on OSHA regulations in the specified areas. The
legislative history of federal hazmat law sheds no light on whether the
1990 extension of OSHA authority was
[[Page 32429]]
intentional. In these circumstances, RSPA is bound by the literal
language of section 5107(f)(2).
EPA is also authorized to regulate hazardous materials, and its
statutes do not expressly preclude EPA from regulating hazardous
materials activities regulated by RSPA, although EPCRA does exempt
``transportation, including the storage incident to such
transportation'' from many of its requirements. While most of EPA's
programs focus on fixed facilities, EPA also regulates transportation
of hazardous wastes under RCRA, as noted above. Moreover, loading,
unloading, and storage of hazardous materials generally occur at fixed
facilities. Recognizing the potential for regulatory overlap, EPA has
taken into account RSPA regulation of hazardous materials in deciding
whether and how to regulate. Consequently, the decisions RSPA makes in
this rulemaking may affect some EPA programs. The nature and extent of
that effect will depend on EPA's interpretation and implementation of
its statutes and regulations, some of which we describe further below.
Some commenters suggest that regulatory inconsistencies among
agencies with responsibilities for hazardous materials safety could be
avoided if RSPA incorporated ``within 49 CFR a reference to pertinent
regulations or regulatory codes developed by other entities'' for
application to hazmat employees. (FMC Corporation) ``Where there is a
need for an OSHA standard to protect a hazmat employee of a motor
carrier during the normal course of transportation * * * RSPA should
adopt that standard, by reference, into the HMR. By doing so, the
standard adopted would prevail and be uniform throughout the United
States * * * Similarly, RSPA should consider incorporating EPA's
environmental regulations that impact hazardous materials during the
normal course of transportation.'' (American Trucking Associations) We
do not agree.
First, OSHA and EPA are authorized by statute to develop broad
programs for worker safety and environmental protection. OSHA is the
agency tasked by Congress with ensuring safety in the workplace. EPA is
the agency tasked with protecting human health and the natural
environment. RSPA lacks the expertise and the resources to establish a
credible OSHA safety program within RSPA for all workers who perform
functions under the HMR. RSPA has a narrower role to play in the area
of transportation worker safety--ensuring that there are adequate
protections for transportation employees during the transportation of
hazardous materials in commerce. Similarly, RSPA has neither the
resources nor the expertise to address in a credible manner all the
environmental hazards posed by the transportation of hazardous
materials. Again, RSPA has a more limited environmental role--ensuring
that hazardous materials transported in commerce are moved without
release under normal conditions of transport from their point of origin
to their destination.
Second, the OSH Act and many of EPA's authorizing statutes permit
states to adopt and enforce regulations for worker safety and
environmental protection that may be more stringent than the federal
regulations promulgated by OSHA and EPA. By contrast, federal hazmat
law preempts many state and local laws and regulations applicable to
hazardous materials transportation that are not the same as the federal
requirements in the HMR.
The relevant federal statutes do not provide clear guidance as to
the preemptive effect OSHA and EPA standards would have if RSPA
incorporated them into the HMR. Incorporating OSHA and EPA requirements
into the HMR may prevent states from adopting more stringent worker
safety and environmental protection standards and would thus undermine
the intent of Congress as expressed in the OSH Act and in EPA's
authorizing legislation. On the other hand, because the OSHA
regulations are promulgated under authority of the OSH Act and EPA
regulations under authority of EPA's authorizing statutes, states may
be permitted to adopt more stringent requirements irrespective of the
preemption provisions of federal hazmat law. Consequently, we do not
believe that incorporating certain OSHA or EPA standards into the HMR
would result in uniform federal regulation of transportation worker
safety or environmental protection in a manner consistent with federal
hazmat law, the OSH Act, and the statutes authorizing EPA's programs.
Other commenters suggest that RSPA and OSHA negotiate a memorandum
of understanding (MOU) that would delineate each agency's areas of
responsibility for worker protection at hazardous materials facilities.
We are not convinced that such an effort is necessary or desirable. MOU
negotiations can be lengthy and resource-intensive. An MOU may be
difficult to develop to all parties' satisfaction and may omit
resolution of facts and conditions that inevitably arise, thereby
failing to prevent the problems it is designed to avoid. Further, an
MOU is a static document and can require amendments when policies
change or its provisions become outdated; while such amendments are
negotiated, application of the MOU may have to be suspended for
extended periods of time. However, we agree with commenters that RSPA
and OSHA should cooperate to assure that the HMR and the OSHA
regulations are complementary, consistent, and clear. We will consider
all possible avenues for enhancing our cooperative relationship,
including negotiation of an MOU if both agencies agree that an MOU is
practicable and necessary.
We believe that a clarification of the applicability of the HMR and
how that may affect the application of OSHA and EPA regulations to
specific hazardous materials activities or facilities must be made
within the context of each program's authorizing statutes and
regulations. This approach involves looking to Congressional and agency
intent as expressed in the body of statutes and regulations exercising
federal jurisdiction over hazardous materials where transportation and
non-transportation activities intersect. The OSH Act, EPA's authorizing
statutes, and federal hazmat law express different statutory purposes.
Our task is to interpret and implement federal hazmat law in a way that
fulfills its statutory purpose and is consistent with the statutory
purposes of the OSH Act and EPA's statutes.
IV. Proposal
We agree with commenters that the major issue for this rulemaking
is how the term ``transportation in commerce'' is applied for purposes
of the HMR. For the reasons stated above, we are proposing to key this
application to a carrier's possession of a hazardous materials
shipment. We believe that this approach is most consistent with the
intent of federal hazmat law and with other federal statutes governing
the regulation of hazardous materials at fixed facilities. Further, we
believe that this approach assures national uniformity of hazardous
materials transportation safety regulations while permitting states,
local governments, and Indian tribes sufficient latitude to develop
community-specific regulations to address local problems and issues.
The HMR would continue to apply to certain activities performed by
offerors to prepare a hazardous material for transportation. We propose
a new term to describe these activities--``pre-transportation
functions.'' ``Transportation in commerce'' would begin when a carrier
takes physical
[[Page 32430]]
possession of a hazardous materials package or shipment for purposes of
transporting it and would continue 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. The HMR
would apply to all carrier activities after the carrier takes
possession of the hazardous material from an offeror for purposes of
transporting it until the package is delivered to its destination,
including loading and unloading activities conducted by carrier
personnel. For purposes of the HMR, such activities would be considered
loading or unloading ``incidental to movement.'' In addition, the HMR
would apply to storage of a hazardous materials package by any party
between the time that a carrier takes possession of the hazardous
material for purposes of transporting it until the package is delivered
to its intended destination, as evidenced by the shipping documentation
under which the package is moving. Except for rail cars stored on
leased track, such storage would be considered storage ``incidental to
movement.'' We are proposing and requesting comment on two alternatives
for applying the HMR to rail cars stored on leased track (see ``Storage
Incidental to Movement'' below for alternatives discussion).
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 proposals in this rulemaking are
intended only to clarify the applicability of the HMR to specific
functions and activities. It is not appropriate for DOT to attempt to
clarify the applicability of other federal agencies' statutes or
regulations to particular functions or activities. However, it is
important to note that facilities at which pre-transportation or
transportation functions are performed must comply with applicable 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
must also 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 other OSHA regulations.
For example, facilities that store hazardous materials may be subject
to EPA's risk management, community right-to-know, hazardous waste
tracking and disposal, and spill prevention, control and countermeasure
program requirements and OSHA's process safety management and emergency
preparedness requirements. Questions as to the applicability of EPA or
OSHA regulations to particular facilities or operations should be
directed to the appropriate EPA or OSHA office.
Our proposal is described in more detail in the following sections.
A. Packaging Specifications
Federal hazmat law and the HMR will continue to apply, as they do
currently, to persons who manufacture, mark, maintain, recondition,
repair, or test packagings or components thereof that are represented,
marked, certified, or sold as qualified for use in the transportation
of hazardous materials in commerce. Packaging integrity is critical to
safe transportation of hazardous materials; therefore, it is imperative
that DOT exercise jurisdiction over packaging requirements to the
exclusion of state and local governments. Further, uniformity of
packaging specifications assures the safe and efficient movement of
hazardous materials across state lines and international boundaries.
Thus, consistent with the preemption provisions of federal hazmat law,
the Secretary's regulatory jurisdiction in this area must preempt state
and local law. It is important to note that a packaging marked to
certify that it conforms to HMR requirements must be maintained in
accordance with applicable specification requirements whether or not it
is in transportation in commerce at any particular time.
B. Pre-Transportation Functions
The HMR currently apply to a number of activities performed before
a hazardous materials shipment is transported in commerce. Such
activities--or functions--include: (1) Determining the hazard class of
a hazardous material; (2) selecting a hazardous materials packaging;
(3) filling a hazardous materials packaging; (4) securing a closure on
a filled hazardous materials package or container or on one containing
a residue of a hazardous material; (5) marking a package to indicate
that it contains a hazardous material; (6) labeling a package to
indicate that it contains a hazardous material; (7) preparing a
hazardous materials shipping paper; (8) providing and maintaining
hazardous materials emergency response information; (9) reviewing a
hazardous materials shipping paper to verify compliance with the HMR or
international equivalents; (10) for persons importing a hazardous
material in to the United States, providing the shipper and the
forwarding agent at the place of entry into the United States with
information as to the requirements of the HMR that apply to the
shipment of the material while in the United States; (11) certifying
that a hazardous material is in proper condition for transportation in
conformance with the requirements of the HMR; (12) blocking and bracing
a hazardous materials package in a freight container or transport
vehicle; (13) segregating a hazardous materials package in a freight
container or transport vehicle from incompatible cargo; and (14)
selecting, providing, or affixing placards for a transport vehicle to
indicate that it is carrying hazardous materials.
These functions occur before transportation in commerce begins,
i.e. before a carrier takes possession of the hazardous material, but,
as most commenters agree, they have a direct bearing on the safety of a
hazardous materials shipment in commerce and, thus, should be subject
to the HMR. Further, regulation of these functions must be uniformly
applied and enforced if a hazardous materials shipment is to move
smoothly, efficiently, and safely from its point of origin to its
destination. Congress recognized the importance of national uniformity
in these areas by creating a specific preemption provision in section
5125(b) applicable to state, local, and Indian tribe requirements on:
(1) the designation, description, and classification of hazardous
material; (2) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material; (3) the preparation, execution, and
use of shipping documents related to hazardous material and
requirements related to the number, contents, and placement of those
documents; (4) the written notification, recording, and reporting of
the unintentional release in transportation of hazardous material; and
(5) the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
In this NPRM, we propose to define a new term--``pre-transportation
function''--to cover activities performed prior to the transportation
of a hazardous material and to which the HMR apply. The requirements in
the HMR for pre-transportation functions apply to persons who offer
hazardous materials for transportation in
[[Page 32431]]
commerce or who cause hazardous materials to be transported in
commerce. Persons who ``cause'' hazardous materials to be transported
in commerce include freight forwarders, non-vessel operating common
carriers, freight brokers, and other entities that may perform pre-
transportation functions. Any person who performs a pre-transportation
function is subject to applicable requirements of the HMR. We also
propose to define ``offer a hazardous material'' to mean the
performance of a pre-transportation function under the HMR. In this
way, we intend to clarify that, consistent with federal hazmat law, the
HMR apply to functions performed to prepare hazardous materials for
transportation in commerce as well as to the actual transportation of
hazardous materials in commerce.
Under this proposal, we would continue to exercise our statutory
authority to inspect for compliance with the HMR requirements
applicable to pre-transportation functions. We would also continue to
exercise our authority to take appropriate enforcement action when we
discover that a pre-transportation function has been performed in a
manner that does not comply with the HMR, even if transportation of the
hazardous material in commerce has not yet begun (i.e., the carrier has
not yet taken possession of the material) or has not been performed at
all (i.e., undeclared shipments offered for transportation). This
approach is consistent with our authority under section 5103 of federal
hazmat law (49 U.S.C. 5103) to regulate activities that affect the safe
transportation of hazardous materials in commerce. Also, as stated
above, this approach is consistent with Congress' intent that the HMR
requirements applicable to the activities we propose to define as
``pre-transportation functions'' be applied and enforced in a manner
that promotes uniformity in those areas.
It should be noted that several of the pre-transportation functions
identified in our proposed definition generally relate to loading of
hazardous materials into packagings or transport vehicles, including
filling of a packaging (including a bulk packaging), securing closures
on a filled hazardous materials package (including a bulk package) or
on one containing a residue of a hazardous material, blocking and
bracing hazardous materials in a freight container or transport
vehicle, or segregating hazardous materials packages in a freight
container or transport vehicle from incompatible cargo. These
activities are regulated as pre-transportation functions and not as
activities incidental to movement because the carrier has not yet taken
possession of the material. In these cases, transportation in commerce
has not yet begun. (See ``Transportation Functions Subject to the HMR''
below for a proposed definition of ``loading incidental to movement.'')
C. Transportation That Is ``in Commerce''
In this NPRM, we propose several definitions to clarify the
applicability of the HMR to transportation functions and the persons
who perform them. Federal hazmat law requires the Secretary of
Transportation to establish regulations for the safe transportation of
hazardous materials in intrastate, interstate, and foreign commerce. As
noted above, the law defines ``transportation'' and ``commerce''
separately. Further, federal hazmat law authorizes the Secretary of
Transportation to apply these regulations to persons who transport
hazardous materials in commerce or cause hazardous materials to be
transported in commerce. Thus, in a number of letters of interpretation
issued over the years, we have explained that our statutory authority
to issue hazardous materials transportation safety regulations extends,
in addition to pre-transportation and packaging functions, only to
transportation in commerce or transportation for commercial purposes.
Persons who transport hazardous material in commerce or cause hazardous
material to be transported in commerce are subject to the federal
hazmat law and the HMR. However, a government entity, such as a state-
chartered and -funded university, is not subject to the HMR as a
carrier unless it transports hazardous materials in furtherance of a
commercial enterprise (April 23, 1991 RSPA letter to the Department of
Energy; June 1, 1994 RSPA letter to The Honorable Ronald V. Dellums;
June 3, 1993 RSPA letter to the U.S. Department of Energy; September
26, 1994 RSPA letter to California Environmental Protection Agency;
August 12, 1999 RSPA letter to University of Colorado, Boulder Campus).
Similarly, we have stated that the transportation of hazardous
materials by private individuals in personal vehicles for personal use
is not subject to the HMR (October 1, 1999 RSPA letter to Raymond K.
Barwin).
While we have declared in these and other letters of interpretation
that the HMR do not apply to transportation of hazardous materials in
private motor vehicles by private individuals for personal use, or
transportation of hazardous materials by government entities for
noncommercial purposes, this statement of applicability is not formally
expressed in the HMR. We therefore propose to include in HMR a section
specifically stating that noncommercial transportation of hazardous
materials is not subject to the HMR. Noncommercial transportation
includes transportation of hazardous materials by government employees
for government purposes and by private individuals in private motor
vehicles for personal use.
We have historically considered commerce to include all private--
that is, non-governmental--transportation of hazardous materials except
for transportation in a personal vehicle for the personal use of an
individual. Thus, noncommercial transportation does not include
transportation of hazardous materials by not-for-profit entities. In
general, we regard the activities of an entity to be its ``business,''
regardless of whether it is organized for profit or not. To the extent
that an entity performs activities for others, including its
shareholders and employees, it is engaged in commerce. Thus, the fact
that an entity is established as a non-profit organization is not
relevant to the determination of whether it performs activities ``in
commerce.'' A non-profit entity may engage in commercial activities to
the same extent as a for-profit company. Not-for-profit entities that
offer or transport hazardous materials are subject to all applicable
requirements of the HMR.
In letters of interpretation, we also have clarified that the HMR
do not apply to intra-facility movements of hazardous materials that
take place entirely on private property where public access is denied
or restricted. We have explained that movements of hazardous materials
that take place entirely within a private facility are not subject to
the HMR. If such movements utilize or cross public roads, however, they
are subject to the HMR. (May 3, 1979 Materials Transportation Bureau
[RSPA predecessor agency] to the Olin Corporation; September 15, 1981
FHWA letter to Hooker Chemical Company; March 25, 1983 RSPA letter to
the Assistant Fire Marshall for the State of Kentucky; April 23, 1991
RSPA letter to the Department of Energy; April 19, 1994 RSPA letter to
California Department of Justice; July 2, 1999 RSPA letter to Mr. Mark.
R. Maki; and August 19, 1997 RSPA letter to Lockheed Martin Energy
Systems, Inc.) It should be noted, however, that these letters of
interpretation do not concern baggage or packages offered to airlines
for transportation that are moved within the contiguous boundaries of
an airport.
[[Page 32432]]
Baggage and packages that contain hazardous materials are subject to
applicable HMR requirements even when moving within the confines of an
airport facility.
One commenter suggests that the HMR incorporate an exception from
regulation for the movement of containerized, non-bulk hazardous
materials from one part of a facility to another part across a public
road. ``Extensive DOT regulation under the HMR is not needed to protect
public safety during such crossing * * * The movement * * * associated
with the proposed road crossing exception would occur only at the point
of origin * * * The personnel involved would be trained per OSHA and
EPA requirements on how to handle hazardous materials safely and how to
respond in the unlikely event of an incident. On-site emergency
response personnel would be immediately available to respond. Those
facts warrant the exclusion of a larger quantity of material from the
HMR requirements during such crossings.'' (The Boeing Company) We do
not believe such an exception is necessary. In letters of
interpretation, we have indicated that use of a red traffic signal or
road closure to deny public access to a public highway utilized for
movements of hazardous materials between areas of the same facility
makes the portion of the highway to which access is restricted private
and that movements of hazardous materials in such circumstances would
not be subject to the HMR (December 30, 1998 RSPA letter to General
Electric Company). We have further explained that ``[i]f a road is used
by members of the general public (including dependents of Government
employees) without their having to gain access through a controlled
access point, transportation on (across or along) that road is in
commerce. On the other hand, if access to a road is controlled at all
times * * * transportation on that road is not in commerce.'' (December
30, 1998 RSPA letter to General Electric Company) Signs and automated
access control systems that warn the public that an area is restricted
and prevent access to restricted areas are methods that can be used to
control public access (December 12, 1997 RSPA letter to Richland
Operations Center, Department of Energy). This NPRM proposes to add a
statement to the HMR indicating that the HMR do not apply to rail and
motor vehicle movements of a hazardous material that occur entirely
within a contiguous facility boundary, other than at a transportation
facility as defined in this NPRM, where public access is controlled
even when such movements are performed by a for-hire carrier.
D. Transportation Functions Subject to the HMR
As discussed above, in addition to pre-transportation and packaging
functions, only transportation that is ``in commerce'' is subject to
regulation under federal hazmat law. Federal hazmat law defines
``transportation'' as ``the movement of property and loading,
unloading, or storage incidental to the movement.'' However, federal
hazmat law does not define ``movement `` nor does it define ``loading,
unloading, or storage incidental to movement.'' Neither do the HMR
currently define these terms.
Movement. Clearly, the key word in the definition of
``transportation'' included in federal hazmat law is ``movement.'' We
propose to define ``movement'' to mean ``the physical transfer of a
hazardous material from one geographic location to another by rail car,
aircraft, motor vehicle, or vessel.'' A carrier ``moves'' a hazardous
material; thus, transportation in commerce necessarily involves
activities performed by a carrier in connection with the movement of a
hazardous material. In this NPRM, we propose that, for purposes of
applicability of the HMR, transportation in commerce begins when a
carrier takes physical possession of a hazardous material for the
purpose of transporting it and continues until the package containing
the hazardous material is delivered to its destination as indicated on
the shipping paper under which the hazardous material is moving. All
loading, unloading, and storage functions performed by a carrier in the
course of transporting a hazardous material in commerce would be
subject to the requirements of the HMR.
Many hazardous materials shipments are transported by private motor
carriers--companies that own the hazardous materials they transport and
transport them in company-operated vehicles driven by company
personnel. Commenters to the 1996 ANPRM and the 1999 supplemental ANPRM
state that the HMR should apply in the same manner to private and for-
hire carriers. As one commenter notes, ``Distinctions should not be
made between private and common carriers, as the function of the
activity is the same whether private or common.'' (HM-223 Working
Group) However, the nature of private carriage makes it difficult to
identify a point at which a private carrier makes the transition from
offeror to carrier to consignee for the purpose of determining when the
``carrier'' takes possession of a hazardous materials shipment from the
``offeror.'' In this NPRM, we propose that, for private motor carriers,
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 motor vehicle driver relinquishes possession of
the package at its destination and is no longer responsible for
performing functions subject to the HMR.
Under this NPRM, a hazardous material would be in transportation in
commerce until it reaches the final destination as indicated on the
shipping paper under which the hazardous material is moving, except
where the hazardous material is repackaged prior to delivery or stored
for purposes other than transportation. For example, when a hazardous
material transported in a rail tank car arrives at an intermodal
transfer facility where the material will be transferred to several
cargo tanks for delivery to a consignee, transportation in commerce
ends when the rail carrier relinquishes possession of the tank car at
the transfer facility. The transfer facility will perform pre-
transportation activities in the process of transferring the material
to the cargo tanks and preparing them for transportation.
Transportation in commerce would begin when a highway carrier takes
possession of the hazardous material from the transfer facility.
Similarly, when a hazardous material is transported to and held at a
storage facility at the request of the consignor or consignee, as
indicated on shipping papers under which the hazardous material is
moving, transportation in commerce ends when the carrier places the
material in the storage facility, even if it is owned by the carrier.
Note, however, that we are proposing and requesting comment on two
alternatives for applying the HMR to rail cars stored on leased track
(see ``Storage Incidental to Movement'' below for alternatives
discussion).
This proposal is consistent with current HMR requirements and
letters of interpretation we have issued to clarify the meaning of the
term ``transportation in commerce.'' For example, we have explained
that ``a hazardous material is considered `in transit' * * * until it
reaches its final destination, provided it has not been repackaged.''
(December 17, 1990 letter to David K. Lindemuth Company, Inc.)
Loading and Unloading Incidental to Movement. Loading and unloading
``incidental to movement'' of a hazardous material is loading or
[[Page 32433]]
unloading associated with such movement. We therefore propose to define
these terms based on whether the activities to which they refer are
associated with a carrier's movement in commerce of a hazardous
material. Using this approach, we propose to define ``loading
incidental to movement'' to mean loading of a hazardous material onto a
transport vehicle, aircraft, or vessel or into a bulk packaging for
purposes of transporting it when performed by a person employed by or
under contract to a for-hire carrier or, in the case of a private motor
carrier, when performed by the driver of the motor vehicle into which
the hazardous material is being loaded immediately prior to movement in
commerce of the hazardous material. We propose to define ``unloading
incidental to movement'' to mean unloading of a hazardous material from
a transport vehicle, aircraft, or vessel or from a bulk packaging when
performed by a person employed by or under contract to a for-hire
carrier or, in the case of a private motor carrier, when performed by
the driver of the motor vehicle from which the hazardous material is
being unloaded immediately after movement in commerce is completed.
Loading and unloading incidental to movement in commerce would also
include loading and unloading of packaged hazardous materials at
facilities where such packages are transferred from one transport
vehicle to another or from one mode of transportation to another.
As proposed in this NPRM, hazardous materials unloading operations
performed by consignees would not be subject to the HMR. Consignee
unloading is not part of transportation in commerce as we propose to
apply that term because it occurs after movement in commerce is
completed.
For the most part, this proposal is consistent with current HMR
requirements and letters of interpretation and administrative decisions
we have issued to clarify the applicability of the HMR to unloading
operations from transport vehicles and bulk packagings other than tank
cars. As long ago as 1978, we stated that requirements in the HMR
applicable to cargo tank unloading end when the activities of the
carrier relative to a given shipment end (November 24, 1978 Materials
Transportation Bureau letter to Dow Chemical). More recently, we
explained that the HMR requirements governing cargo tank unloading
operations do not apply when the cargo tank has been placed on the
consignee's premises and the motive power has been removed from the
premises (March 23, 1999 RSPA letter to Great Lakes Chemical
Corporation).
For hazardous materials transportation by rail tank car, however,
the proposals in this NPRM applicable to hazardous materials unloading
operations represent a change from current practice and interpretation.
Historically, the tank car unloading requirements included in Part 174
of the HMR have been applied to all unloading operations. These
requirements are set forth in section 174.67 of the HMR and include
procedural and attendance requirements. The requirements date back to a
time when tank cars were unloaded while on a carrier's track or public
siding in the center of or adjacent to a populated area.
Interpretations and administrative determinations issued by RSPA and
FRA reflect this historical application of the HMR. Thus, in an
administrative determination of preemption applicable to certain
California and Los Angeles County requirements for handling and
transportation of hazardous materials (February 15, 1995; 60 FR 8773)
and in informal letters of interpretation (February 14, 1984 FRA letter
to W.R. Grace & Co.), we recognized that section 174.67 applies to
consignee unloading and, therefore, that consignee unloading of tank
cars is ``unloading that is incidental to transportation'' and subject
to requirements of the HMR.
Today, a large proportion of hazardous materials tank cars are
unloaded by consignees over extended periods of time directly into
manufacturing processes at privately owned facilities where public
access is restricted. As one commenter states, ``The transfer of cargo
into, and out of, tank cars is primarily a shipper activity. We are not
aware of any circumstances in which rail carriers are responsible for
loading or unloading, except in emergency operations where the carrier
is the consignor or consignee of the tank car.'' (Chemical
Manufacturers Association; comments originally submitted under Docket
HM-212) Another commenter suggests that the current tank car unloading
requirements in the HMR are biased ``toward the old, obsolete, and
inappropriate regulatory requirements that only carriers are
responsible for unloading. In the majority of cases, the shipper has
total control over the unloading process and has established, safe,
proven practices to accomplish the load and unload product transfer
process.'' (Akzo Chemicals, Inc., comments originally submitted under
Docket HM-212).
We agree that hazardous materials tank car loading and unloading
operations generally are part of the manufacturing process and, as
such, are inappropriate for regulation as transportation functions
under the HMR. In this NPRM, we propose that loading of a tank car by a
shipper and unloading of a tank car by a consignee within a facility
would not be subject to the HMR. This approach is consistent with
RSPA's current regulation of cargo tank loading and unloading and takes
into account the changes in industry rail tank car unloading practices
since the regulations in section 174.67 were promulgated. Accordingly,
we propose to remove the obsolete requirements relating to tank car
unloading from section 174.67.
While hazardous materials tank car loading and unloading operations
per se are more appropriately regulated as manufacturing rather than
transportation operations, FRA believes that unique features of rail
tank car loading and unloading facilities and of rail tank cars
themselves require continued application of certain HMR requirements
related to the protection of train and engine crews operating within a
shipper or consignee facility. For example, a rail tank car on a gentle
slope can move without being attached to motive power. Rail tank cars
that do not have their brakes set or wheels blocked have rolled out
through plant fence lines; such unrestrained movements have fouled
railroad trackage and caused accidents.
In addition, rail carriers routinely enter and exit loading and
unloading facilities to pick up or drop off rail cars. Further,
facilities frequently contract with rail carriers to move rail cars
within a facility. Rail tank cars with hoses attached may be buried
within a string of similar cars and not visible to a train and engine
crew tasked with switching or relocating the cars. FRA wants to assure
that, at the point of physical interface between the general system of
rail transportation and the facility rail system, train and engine
crews do not make inappropriate assumptions about the status of a
particular rail car or series of rail cars and attempt to move cars
that are attached to facility storage tanks or manufacturing processes,
thereby endangering train and engine crew safety or adversely affecting
movement along the general system of rail transportation.
Therefore, in this NPRM we propose to consolidate requirements
related to the protection of train and engine crews operating within a
shipper or consignee facility in Part 173 of the HMR. Specifically,
requirements for posting warning signs, setting hand brakes, and
blocking the wheels of hazardous
[[Page 32434]]
materials tank cars placed for unloading with closures open would be
moved from section 174.67(a)(2) and (a)(3) and added to section 173.31.
We further propose to require application of these protective measures
whenever a tank car is placed for loading with a closure open. The risk
to the general system of rail transportation and to train and engine
crews operating within a facility is the same whether a hazardous
materials tank car is placed for either loading or unloading with a
closure open. The HMR include a requirement at section 174.9 for a rail
carrier to inspect at ground level hazardous materials rail cars
accepted for transportation or placed in a train for required markings,
labels, placards, securement of closures, and leakage. The requirements
we are proposing for section 173.31 will serve to reinforce the more
general provision in section 174.9.
In addition to the above requirements, hazardous materials rail
tank car loading and unloading operations, including unloading
operations conducted by railroad employees on railroad property of,
typically, diesel fuel for locomotives, are subject to applicable
regulations of OSHA, EPA, and state and local governments and Indian
tribes.
Storage incidental to movement. Storage ``incidental to movement''
of a hazardous material is storage undertaken by a carrier as part of
the essentially uninterrupted movement of a hazardous material in
commerce. In general, this would not include the directed holding of a
hazardous material by the shipper (offeror) at an en route point until
its further movement is requested. (But see the discussion, below, of
storage of rail tank cars on leased track.) We propose to define
``storage incidental to movement'' to mean temporary storage 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 to transport it in commerce until the package
containing the hazardous material is delivered to its destination as
indicated on shipping documentation. As a specific alternative
concerning railroad tank cars stored on railroad property that is the
shipping paper destination but not the ultimate destination where the
car will be unloaded, we also propose to consider such storage as
storage incidental to movement.
Thus, ``storage incidental to movement'' in commerce would include
temporary storage at a carrier's terminal where the package containing
the hazardous material is to be transferred from one transport vehicle
to another or from one transportation mode to another. (Note, however,
that, as discussed above, storage of a hazardous material at a
carrier's terminal where a hazardous material is repackaged prior to
re-shipment is not storage incidental to transportation as we propose
to define it in this NPRM.) Storage incidental to movement of a
hazardous material in commerce would also include the period during
which a transport vehicle carrying hazardous materials is parked
temporarily at an en route point, e.g., safe haven, a rail yard, a
marine terminal, or at a truck stop, motel, restaurant, rest area, or
similar location.
Storage incidental to movement in commerce would include temporary
storage of a hazardous material at a carrier's facility after the
carrier takes possession of the package for purposes of transporting it
with reasonable dispatch to a specifically identified destination and
prior to delivery of the package to its consignee. We recognize,
however, that a carrier may store hazardous materials under
circumstances in which such storage is not incidental to movement as we
propose to define it in this NPRM. For example, if a hazardous
materials package is consigned to a storage facility operated by a
carrier--that is, if the shipping documentation accompanying the
shipment indicates a carrier-operated storage facility as the
destination--then, movement in commerce ends when the shipment arrives
at the storage facility. Subsequent storage of the hazardous material
at the storage facility is not storage incidental to movement as
proposed in this NPRM. Again, we propose an alternative for railroad
tank car storage at interim locations that would consider such cars as
in storage incidental to transportation even if the shipping paper
shows the interim location as the car's destination.
The temporary holding of a package containing hazardous materials
at a motor carrier terminal for consolidation with other packages is
clearly within the meaning of storage incidental to movement of a
hazardous material in commerce as proposed here. Further, for through
shipments, storage incidental to movement in commerce as proposed in
this NPRM also includes the temporary holding of a package, freight
container, rail car, or other instrument of containment of a hazardous
material at a marine terminal pending the arrival of a vessel onto
which it will be loaded or prior to its inland movement by rail or
highway. Similarly, the holding of a freight co |
