[Federal Register: April 27, 1999 (Volume 64, Number 80)]
[Proposed Rules]
[Page 22717-22723]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ap99-28]
[[Page 22717]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171 et al.
Applicability of the Hazardous Materials Regulations to Loading,
Unloading, and Storage; Proposed Rule
[[Page 22718]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173, 174, 175, 176, and 177
[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, DOT.
ACTION: Supplemental advance notice of proposed rulemaking.
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SUMMARY: On July 29, 1996, the Research and Special Programs
Administration published an advance notice of proposed rulemaking
inviting public comment on the applicability of the Hazardous Materials
Regulations to loading, unloading, and storage of hazardous materials.
We are continuing to evaluate this issue to determine the best way to
promote safety in transportation and transportation-related activities.
To assure that agency decisions are based on the best information
available and take account of the views of all interested persons, we
are issuing this supplemental advance notice of proposed rulemaking to
highlight comments received and request additional information.
DATES: Submit comments by July 26, 1999. To the extent possible, we
will consider comments received after this date in making our decision
on a proposed rule.
ADDRESSES: Submit comments to the Dockets Management System, U.S.
Department of Transportation, 400 Seventh Street, SW, Washington, D.C.
20590-0001. Comments should identify Docket Number RSPA-98-4952 and be
submitted in two copies. If you wish to receive confirmation of receipt
of your written comments, include a self-addressed, stamped postcard.
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 9:00 a.m. and 5:00 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:
I. Background
On July 29, 1996, the Research and Special Programs Administration
(RSPA, ``we'') published an advance notice of proposed rulemaking
(ANPRM) seeking comments on the applicability of the Hazardous
Materials Regulations (HMR; 49 CFR Parts 171-180) to loading,
unloading, and storage of hazardous materials. 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. The
reader is referred to the ANPRM (61 FR 39522) for background
information and a detailed discussion of the issues.
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 over
100 written comments.
II. Summary of Issues and Analysis of Comments
The HMR are promulgated in accordance with the mandate in 49 U.S.C.
5103(b) that the Secretary of Transportation ``prescribe regulations
for the safe transportation of hazardous materials in intrastate,
interstate, and foreign commerce.'' ``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 or a place outside of the state; or
that affects trade or transportation between a place in a state and a
place outside of the state.'' 49 U.S.C. 5102(1).
The ANPRM noted that we have 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, subject to regulation under the
HMR. The ANPRM identified loading, unloading, storage, and handling of
hazardous materials as areas of particular confusion and concern and
asked a number of questions about how RSPA should regulate these
activities.
Commenters to the ANPRM generally agree that RSPA needs to more
clearly specify activities that are subject to the HMR to eliminate
existing confusion and uncertainty. Commenters further agree that
elimination of regulatory overlaps among Federal regulatory agencies
and between the Federal agencies and state/local public safety agencies
would eliminate potentially inconsistent and unnecessary regulation and
would promote more efficient and effective compliance with and
enforcement of safety standards.
Developing a clear statement of applicability of the HMR will not
be an easy task. Ideally, such a statement should cover all activities
performed by hazardous materials shippers, carriers, and consignees
that directly affect transportation safety and should apply equally to
both bulk and non-bulk shipments. It should provide the regulated
community with a clear understanding of when the HMR apply and the
effect such applicability has on the regulatory activities of other
Federal regulatory agencies and state/local public safety agencies
Commenters generally agree that the following activities (which are
subjects covered under DOT's preemption authority in 49 U.S.C. 5125(b))
should be subject to the HMR--classification of a hazardous material;
preparation of a shipping paper, including emergency response
information; selection of an appropriate packaging; marking and
labeling of the package; and placarding of the transport vehicle.
Similarly, commenters generally agree that activities related to the
development of specifications for packagings authorized for
transportation of hazardous materials, including all testing,
retesting, reconditioning, and reuse requirements, should be subject to
the HMR. These activities assure the integrity of hazardous materials
packages during transportation and assist emergency responders in
identifying and responding to specific hazards in the event of an
unintentional release of material during transportation. Thus,
commenters agree that RSPA should have exclusive regulatory authority
in these areas.
Many commenters to the ANPRM propose to draw the boundaries for HMR
applicability by answering two
[[Page 22719]]
critical questions: ``When does transportation begin?'' and ``When does
transportation end?'' RSPA agrees that answering these questions would
establish a simple framework for clarifying the applicability of the
HMR to the regulated community and ultimately help clarify the
relationships among various Federal, state, and local programs charged
with protecting people and the environment from the risks of hazardous
materials.
Commenters do not offer consistent answers to the questions ``When
does transportation begin?'' and ``When does transportation end?''
However, three suggested approaches for developing answers do emerge:
(1) Offeror (shipper) intent; (2) custody and control by a carrier; and
(3) movement on public rights-of-way. These are discussed in more
detail below. By focusing this ANPRM on these three approaches,
however, we do not mean to suggest that we are not considering other
approaches for determining the applicability of the HMR over hazardous
materials transportation activities. For example, we may want to
consider a combination of the three major approaches discussed here. We
may want to develop an analysis that would distinguish activities that
should be regulated under the HMR because they pose significant public
safety risks from those that are adequately addressed by other Federal
regulatory agencies or by state/local public safety agencies and from
those that need not be regulated under the HMR because the public
safety risk is limited or non-existent. Commenters are invited to
discuss variations of the alternatives discussed below or to suggest
new alternatives.
Following is a discussion of the three most commonly suggested
approaches from commenters for answering the questions ``When does
transportation begin?'' and ``When does transportation end?'' The
discussion includes questions focused on the details of each approach.
In answering the questions, please explain your responses and, when
possible, provide examples of current practices that should or should
not be considered subject to the HMR.
A. Offeror (Shipper) Intent
Applicability
An alliance of 16 associations (the Alliance) representing some of
the nation's largest manufacturers, shippers, and transporters of
hazardous materials suggests that a determination as to whether the HMR
apply to a package containing hazardous materials should be based on an
offeror's intent. A person's intent to offer a hazardous material for
transportation in commerce would be shown by placing the hazardous
material in a packaging preparatory to shipment. An offeror's intent to
ship a hazardous material would establish whether it is subject to the
HMR. Under this scenario, the Alliance suggests that the following
functions would be subject to regulation by RSPA:
1. Transportation begins with the offeror's intent to ship a
hazardous material.
2. Functions performed at offeror's (shipper's) facility.
<bullet> Loading of non-bulk packages by the offeror or carrier
onto a transport vehicle, vessel, or aircraft.
<bullet> Loading of bulk packagings by the offeror or carrier,
including monitoring or attendance of the loading function.
<bullet> In-plant movements of bulk packages or transport vehicles
loaded and qualified for off-site transportation.
<bullet> Unlimited storage of packages awaiting pick-up at the
offeror's facility, including loaded rail cars at plant sites.
3. In-transit movement of shipment.
<bullet> Parking or staging of transport vehicles, including rail
cars, incidental to movement.
<bullet> Loading, unloading, and handling, such as transferring a
package from a vessel, aircraft, or transport vehicle to a staging area
or to another transport vehicle, aircraft, or vessel.
<bullet> Storage of packages awaiting shipment to their ultimate
destination.
4. Functions performed at destination facility.
<bullet> Long-term storage of packages at distribution facilities.
<bullet> Unlimited storage awaiting unloading at destination
facility, including loaded rail cars at plant sites.
<bullet> In-plant movements of bulk packages or transport vehicles
loaded with non-bulk packages.
<bullet> Unloading of a bulk package or a transport vehicle, vessel
or aircraft loaded with non-bulk packages.
5. Transportation ends at the completion of unloading of the bulk
package or transportation vehicle, vessel, or aircraft at the
destination facility.
On the issue of private versus for-hire carriers, the Alliance
states that the type of carriage is irrelevant to the question of
whether activities are covered by the HMR. The Alliance suggests that
the key question for applicability of the HMR is whether the shipment
is intended to be, is being, or has been offered for transportation.
For this reason, the Alliance opposes setting specific time limits for
completing unloading of bulk packages, after which the HMR would not
apply. Similarly, the Alliance rejects the idea of determining the
applicability of the HMR based on a shipment being under ``active
shipping papers.'' The Alliance also states that public accessibility
to an originating, in-transit, or destination facility should have no
bearing on the question of whether in-plant movements of hazardous
materials should be subject to the HMR. Finally, the Alliance advocates
RSPA regulation of unlimited storage of hazardous materials, including
on leased track, if the hazardous material is intended to be or had
previously been offered for transportation under the HMR.
Implications for Regulatory Overlap Among Federal Regulatory Agencies
The Alliance asserts that where there is an intent to offer for
transport or to transport a hazardous material in an authorized package
or transport vehicle, it should be presumed to be subject to the HMR.
RSPA should broadly exercise its exclusive authority to establish rules
governing storage, movement, and handling of hazardous materials in
transportation as the Alliance would define it. The Alliance suggests
that questions concerning shared or overlapping jurisdiction among
RSPA, EPA, and OSHA should be resolved by examining each agency's
``preeminent authority.'' In the Alliance's view, RSPA's preeminent
authority is to establish uniform Federal transportation safety
standards, OSHA's preeminent authority is for worker safety and health,
and EPA's preeminent authority is for environmental protection. The
Alliance suggests that RSPA should consider the appropriate boundaries
of agency jurisdiction each time a new regulatory activity is proposed.
Each activity would be considered separately, in consultation between
or among the affected agencies, and the agency with the preeminent
authority for that activity would regulate it, if regulation is
necessary. Thus, OSHA would ensure that work practices are performed
safely under existing rules, and EPA would assure that accidental
releases of hazardous materials to the environment are properly
handled. If there are gaps in the HMR, the Alliance suggests that RSPA
should incorporate applicable regulations or standards of other Federal
agencies into the HMR.
Implications for State/Local Regulation of Hazardous Materials
With reference to state and local regulation of hazardous materials
transportation, the Alliance is very concerned about the need for
national uniformity in hazardous materials regulation. The Alliance is
particularly concerned that storage of hazardous
[[Page 22720]]
materials incidental to transportation not be subject to multiple
regulatory regimes. The Alliance notes that RSPA is the Federal agency
with expertise in the design of transportation equipment intended to
carry hazardous materials and asserts that no other government entity,
whether Federal, state, or local, has or should have jurisdiction to
regulate transportation equipment at any point while it is in
transportation, including storage incidental to transportation.
Further, the absence of regulation concerning specific activities
within RSPA's jurisdiction should not be construed as an invitation for
regulation by state or local authorities. Any gaps in the HMR
concerning activities that affect transportation should be filled by
RSPA regulation. Any activity affecting transportation where regulation
by states or local governments could present an obstacle to RSPA's
responsibility to promulgate uniform Federal hazardous materials
transportation safety standards should be regulated by RSPA.
Questions Pertaining to Defining ``Transportation in Commerce'' by
Offeror Intent
A1. Applicability. The Alliance suggests that the applicability of
the HMR to a hazardous material would be determined by an offeror's
intent to transport. Evidence of ``intent'' would be placing a
hazardous material inside a packaging and handling it according to the
HMR.
A1(i). When specifically does transportation of a hazardous
material begin? Upon selection of a packaging for the material; upon
preparation of a package, including marking and labeling, for shipment;
or upon preparation of shipping papers for the package?
A1(ii). How should the HMR distinguish between packages containing
hazardous materials that are intended for transportation and packages
of hazardous materials that are not intended for transportation?
Provide specific examples, if possible.
A1(iii). If a hazardous material has been placed in a DOT
specification packaging, does this constitute an intent to offer the
package for transportation?
A1(iv). Should a properly marked and labeled package for which
shipping papers have not been prepared be subject to the HMR? Why or
why not?
A1(v). Are there additional indicia of intent that RSPA should use
to determine when a hazardous material is in transportation? Provide
specific examples, if possible.
A1(vi). Are there any Federal or state agency precedents for
applying regulations according to intent-based criteria? If so, please
provide specific examples.
A1(vii). How would the concept of ``intent'' be enforced? For
example, should DOT take enforcement action at any time that it finds a
DOT specification package containing a hazardous material that does not
fully conform to the requirements of the HMR? Should it take
enforcement action when it finds any package that does not fully
conform to the requirements of the HMR?
A1(viii). At what specific point or points could a shipper be in
violation of the HMR?
A2. Loading and unloading. Under the scenario suggested by the
Alliance, all loading and unloading operations would be subject to the
HMR.
A2(i). Should the HMR cover loading and unloading of non-bulk
packages to and from a transport vehicle? Why or why not?
A2(ii). Should loading and unloading of intermodal bulk containers
be subject to the same regulations as loading and unloading of cargo
tanks and tanks cars? Why or why not?
A2(iii). Should cargo tanks that are detached from their motive
power be subject to the same regulations for unloading as cargo tanks
that remain attached to their motive power? Why or why not?
A2(iv). Should the HMR cover unloading of cargo tanks or tank cars
into manufacturing processes? Why or why not?
A2(v). Once it has been unloaded, should a bulk packaging
containing a residue of a hazardous material continue to be subject to
the HMR? If so, to what extent?
A3. Storage. Under the Alliance's proposal, shipments could be held
in storage incidental to transportation indefinitely, whether at the
shipper facility, the consignee facility, or at an in-transit facility.
A3(i). Is it appropriate to consider hazardous materials held in
storage to be in transportation and, thus, subject to regulation under
the HMR solely because such materials are packaged in conformance with
the HMR? Why or why not?
A3(ii). To what extent should the storage of packages prior to
loading on a transport vehicle be subject to the HMR? For example,
should the HMR prescribe requirements for fire safety for warehousing
of packages, worker safety standards for workers who handle packages
after they have been filled, or operational standards for use of
mechanical package handling equipment?
A3(ii). Under this proposal, should there be a time limit on
storage, after which the material is no longer subject to the HMR? If
so, what is a reasonable time limit? If not, why not?
A3(iii). Under this proposal, should a time limit on storage at
originating or destination facilities be different from a time limit
for in-transit storage facilities? Why or why not?
A3(iv). What other objective criteria could RSPA use to determine
when a hazardous materials shipment is in storage incidental to
transportation?
A3(v). Under this proposal, should different standards apply to
hazardous materials stored in bulk packages, intermodal bulk containers
(IBCs), and non-bulk packages? Why or why not?
A3(vi). Should the HMR distinguish between hazardous materials held
in storage at a warehouse throughbilled for subsequent distribution to
future customers and hazardous materials held by a wholesaler awaiting
a future sale?
A3(vii). If packages held in storage are subject to the HMR, should
the HMR also include standards for the warehouses or facilities where
packages are stored?
A3(viii). Should a package held in storage that contains a residue
of a hazardous material be subject to the requirements of the HMR? Why
or why not?
A4. Regulation by other federal/state/local agencies. Determining
the applicability of the HMR according to a shipper's intent, thereby
permitting hazardous materials shipments to be held in unlimited
storage subject to regulation by the HMR at originating, in-transit,
and destination facilities, could preclude regulation by other Federal
agencies or by state or local governments.
A4(i). Should hazardous materials shipments held in storage that is
subject to regulation under the HMR be excepted from regulation by
other Federal agencies or by state and local governments? Why or why
not? If yes, how should the health and safety interests of other
Federal agencies and state and local governments be addressed?
A4(ii). Should shipments held in storage be excepted from community
right-to-know and risk management laws? Should shipments held in
storage be excepted from the requirements of local fire codes or zoning
laws? Why or why not? If yes, how should the health and safety
interests of state and local governments be addressed?
A4(iii). What role, if any, should state/local public safety
agencies have in regulating storage subject to regulation by the HMR?
Should state/
[[Page 22721]]
local ordinances addressing storage facilities be subject to preemption
by RSPA? Why or why not? If yes, how should state/local governments
prepare for emergencies that may occur at storage facilities?
A4(iv). How is storage incidental to transportation different from
storage generally? Are the risks to facility employees or to the
surrounding communities less for hazardous materials shipments stored
in DOT-authorized containers?
A5. Preemption. Commenters assert that the absence of RSPA
regulation governing an activity affecting transportation does not mean
that state or local governments are free to regulate the activity. When
should the absence of an RSPA regulation preclude state or local
regulation of an activity?
A6. Rail storage on leased tracks. Should materials stored on
tracks owned by a railroad and leased to a shipper or consignee be
regulated to the same degree as when the shipment is being transported
by the rail carrier? Why or why not?
B. Carrier Custody and Control
Applicability.
Some commenters representing various hazardous materials shippers,
carriers, and state and local law enforcement and safety agencies
suggest that applicability of the HMR should be limited to the period
when a hazardous material is received and accepted for transportation
by a carrier until it is delivered to and accepted at its final
destination. Under this scenario, proponents suggest that the following
functions would be subject to regulation by DOT:
1. Transportation begins when a package is accepted by a carrier
and under its control.
2. Functions performed at offeror's facility.
<bullet> Loading of non-bulk packages by the carrier onto a vessel,
aircraft, or transport vehicle.
<bullet> Loading of bulk packagings by the carrier, including
monitoring or attendance of the loading process.
<bullet> Carrier movements within the shipper facility.
3. In-transit movement of shipment.
<bullet> Parking or staging of transport vehicles, including rail
cars, incidental to movement.
<bullet> Loading, unloading, and handling, such as moving a package
from a vessel, aircraft, or transport vehicle to a staging area or to
another vessel, aircraft, or transport vehicle.
<bullet> Storage of packages awaiting shipment to their known
ultimate destination.
4. Functions performed at destination facility.
<bullet> Carrier movements within the consignee's facility.
<bullet> Unloading of bulk packages or of non-bulk packages from
aircraft, vessels, or transport vehicles by carrier personnel.
5. Transportation ends when the carrier delivers the shipment or
package to its final destination and it is accepted by the consignee.
Commenters who believe that carrier custody and control of a
hazardous materials shipment should determine whether the shipment is
subject to the HMR agree that whether the carrier is for-hire or
private should be irrelevant. Rather, these commenters believe that the
key question is the activity in which the carrier is engaged.
On the issue of public accessibility, commenters favoring the
carrier-custody-and-control approach generally agree that public
accessibility to an originating or destination facility should have no
bearing on the question of whether in-plant movements of hazardous
materials should be subject to the HMR. However, one commenter does
suggest that the extent of public accessibility may bear on how loading
or unloading functions are regulated. The commenter implies that
loading or unloading conducted in facilities accessible to the general
public, such as retail gas stations, shopping centers, or industrial
parks, should be regulated more stringently than loading or unloading
conducted at facilities where public access is limited or prohibited,
such as chemical plants, refineries, or petroleum tank farms.
On the issue of setting specific time limits for unloading and
storage incidental to transportation, most of the commenters who favor
the carrier-custody-and-control approach agree that RSPA should not set
a specific time limit for completing unloading. For these commenters,
the issue is who is performing loading or unloading functions. Loading
or unloading by carrier personnel would be covered by the HMR; loading
or unloading by consignor/consignee personnel would not. However, some
of these commenters suggest that loading and unloading of cargo tanks
and tank cars should be regulated under the HMR, whether or not a
carrier is involved.
The commenters who believe carrier custody and control of a
hazardous materials shipment should determine whether it is subject to
the HMR generally reject using the concept of ``active shipping
papers.'' Most are unclear as to what is meant by the term and equally
uncertain as to how it could be defined. These commenters also oppose
application of the HMR to storage of rail cars because storage on
private property should not be subject to the HMR.
Implications for Regulatory Overlap Among Federal Regulatory Agencies
The commenters who favor the carrier-custody-and-control approach
do not have a uniform view on designating areas of regulatory
responsibility among RSPA, OSHA, and EPA. Some suggest that RSPA should
negotiate Memoranda of Understanding with OSHA and/or EPA to set forth
specific, separate areas of responsibility. Others note that RSPA does
not exercise all of its jurisdiction with respect to handling criteria
for hazardous materials and suggest that RSPA should screen the rules
of other agencies and incorporate into the HMR those that can be used
effectively in transportation settings. These commenters suggest
several examples--requiring notice to local governments, contingency
plans, and other performance-based measures to ensure due diligence in
handling hazardous materials--where RSPA should consider incorporating
the regulations of other Federal agencies into the HMR.
Implications for State/Local Regulation of Hazardous Materials
Again, the commenters who favor the carrier-custody-and-control
approach do not present consistent views on state and local government
regulation of activities affecting hazardous materials in
transportation. Some agree with the Alliance comments cited above that
national uniformity of hazardous materials transportation regulation is
critical. They urge RSPA to clearly define the point at which a
shipment is offered for transportation and the circumstances under
which a shipment is considered in storage incidental to transportation.
Others suggest that RSPA should recognize the right of state and local
governments to protect the health and safety of its citizens through
regulations that may be more stringent than the HMR.
Questions Pertaining to Defining ``Transportation in Commerce'' in
Terms of Carrier Custody and Control
B1. Applicability of the HMR.
B1(i). If transportation begins once a carrier accepts and assumes
control of a package, at what point should a shipment handled by a
private carrier be subject to the HMR? Why? What objective criteria can
RSPA use to determine when a shipment has been ``accepted'' by a
private carrier?
[[Page 22722]]
B1(ii). At what point should a package handled by a for-hire
carrier be subject to the HMR? Why? What objective criteria can RSPA
use to determine when a shipment has been ``accepted'' by a for-hire
carrier?
B2. Loading and unloading by carriers. Under this scenario, only
those loading or unloading operations conducted by carriers would be
subject to regulation by RSPA.
B2(i). Should loading or unloading by a for-hire carrier be
distinguished from loading or unloading by a private carrier? Why or
why not?
B2(ii). Do safety considerations change depending on which entity
performs loading or unloading? If so, how?
B3. Loading and unloading by shippers or consignees. Under this
scenario, carrier loading or unloading operations would be subject to
the HMR while shipper loading and consignee unloading would not.
B3(i). What distinguishes loading or unloading by a carrier from
loading and unloading by shippers and consignees?
B3(ii). Do safety considerations change depending on which entity
performs the operations? If so, how?
B4. Loading and unloading of bulk and non-bulk shipments.
B4(i). Should loading and unloading of bulk shipments to/from cargo
tanks or tank cars be regulated more stringently than loading and
unloading of non-bulk packages? Why or why not?
B4(ii). If yes, should shipper loading and consignee unloading of
bulk shipments be subject to regulation by RSPA? Why or why not?
B5. Loading and unloading at publicly accessible facilities. Should
loading or unloading operations conducted at publicly accessible
facilities on or near public rights-of-way be regulated more
stringently than loading or unloading at private facilities at which
there is no public access? Why or why not?
B6. Worker safety.
B6(i). Should hazmat employees and non-hazmat employees performing
the identical function (e.g., the unloading of hazardous materials from
a cargo tank) be subject to identical worker safety standards? If so,
under which Federal agency's regulations--RSPA or OSHA? Why?
B6(ii). Should new or additional regulatory emphasis be placed on
the safety of transportation workers, in particular the operators of
motor vehicles who are directed by their carrier employers to perform
functions, such as the loading and unloading of cargo tanks, that were
performed by shippers and consignees in the past?
B7. Empty packages. Once it has been unloaded by a carrier, should
a bulk packaging containing a residue of a hazardous material continue
to be subject to the HMR? If so, to what extent?
C. Movement on Public Rights-of-Way
Applicability
Some commenters from state and local public safety agencies suggest
that the HMR should apply only to movements of hazardous materials on
public rights-of-way. The HMR would cease to apply once the shipment
left the public right-of-way and arrived at its destination. One
industry commenter offers a variation of this proposal, suggesting that
the HMR should apply only to the time period when hazardous materials
are being shipped ``by means available to the public or on public
rights-of-way.'' Using movement on public rights-of-way as the defining
criterion for applicability of the HMR, proponents suggest that the
following functions would be subject to regulation by RSPA:
1. Transportation begins when the shipment exits the offeror
facility and enters a public right-of-way.
2. In-transit movement of shipment.
<bullet> Parking or staging of transport vehicles, including rail
cars, incidental to movement.
<bullet> Loading, unloading, and handling, such as moving a package
from a vessel, aircraft, or transport vehicle to a staging area or to
another vessel, aircraft, or transport vehicle.
<bullet> Storage of packages awaiting shipment to their ultimate
destination.
3. Transportation ends when the shipment leaves the public right-
of-way and arrives at its destination.
On the issue of private versus for-hire carriers, commenters who
suggest applying the HMR only to movements on public rights-of-way
generally agree that the nature of the carrier should be irrelevant to
the question of whether its activities are covered by the HMR. For
these commenters, the key question is whether the activity occurs on
private property or a public right-of-way. For the most part, these
commenters do not believe that loading, unloading, or storage should be
subject to the HMR because the activity occurs on private property
rather than a public right-of-way. However, on the issue of setting
specific time limits to define unloading and storage that are
incidental to transportation, some of these commenters agree that
setting a time limit by which loading should be completed--7 days, for
example--would be helpful in determining whether a material is subject
to the HMR. Others suggest that storage in excess of ``a couple of
days'' should not be viewed as storage incidental to transportation in
commerce.
Implications for Regulatory Overlap Among Federal Regulatory Agencies
Commenters who want to limit the application of the HMR to
movements of hazardous materials on public rights-of-way also state
that DOT should have primary Federal regulatory jurisdiction only when
a hazardous material is being moved on public rights-of-way. These
commenters assert that it is generally recognized that DOT should have
sole jurisdiction over movement on public thoroughfares of hazardous
materials from their point of origin to their destination and, further,
that DOT should have sole jurisdiction over container design, including
all equipment attached to the container, and marking and labeling of
the container. These commenters state that the area in need of
clarification is when DOT will have sole jurisdiction at a fixed
facility and when other agencies will have shared or joint jurisdiction
at fixed facilities. These commenters suggest that OSHA should have
primary jurisdiction over manufacture, loading, storage, unloading, and
use of hazardous material; and EPA should have primary jurisdiction
only where an actual or potential release threatens the environment.
Implications for State/Local Regulation of Hazardous Materials
Commenters representing state and local public safety agencies who
favor applying the HMR only to movements on public rights-of-way assert
that state or local government agencies should have the freedom to
impose safety regulations to respond to localized conditions or needs.
These commenters suggest that, just as EPA has a role in protecting the
environment from unintentional releases of hazardous materials at fixed
facilities or in transportation and OSHA has responsibility whenever
worker safety is at stake, they should be permitted to regulate certain
activities along with RSPA and other Federal agencies. These commenters
believe that the concept of shared jurisdiction over a specific
activity among Federal, state, and local agencies should be an explicit
point recognized in the HMR.
In cases of overlapping jurisdiction, these commenters suggest the
agency with regulations that are in place to protect life and safety
should have precedence; in such cases, RSPA's preemption authority
should be waived.
[[Page 22723]]
For loading and unloading activities, these commenters believe that DOT
should focus primarily on the vehicle and vehicle container, while the
facility and the environment around the vehicle container should be the
responsibility of other agencies. Thus, these commenters suggest that
the environment surrounding the loading or unloading activity,
including spill control, drainage, water access, grounding and bonding,
secondary containment, treatment systems, detection/monitoring systems,
alarm systems, and related issues should be the responsibility of EPA,
OSHA, and/or local public safety agencies.
Questions Pertaining to Defining ``Transportation in Commerce'' as
Movements on Public Rights of Way
C1. Applicability of the HMR. What objective criteria should RSPA
use to determine when a hazardous materials shipment is moving on a
public right-of-way?
C2. Movements on private rights-of-way. If the HMR apply only to
movements of hazardous materials on public rights-of-way, how should
the HMR apply to movements of hazardous materials on private rights-of-
way, such as railroad property?
C3. Operations adjacent to public rights-of-way. If the HMR apply
only to movements of hazardous materials on public rights-of-way, how
should the HMR apply to loading, unloading, or storage of hazardous
materials adjacent to public rights-of-way, such as gasoline stations,
shopping centers, or industrial parks?
C4. Unloading. Current requirements of the HMR concerning unloading
are intended to provide, in part, protection to the general public in
instances where individuals and their private property are exposed to
risks, e.g., bulk deliveries of petroleum products to homes, schools
and retail outlets.
C4(i). Should the HMR be revised to specifically except these
unloading requirements? If not, to what extent should the HMR address
transportation-related functions that occur beyond the bounds of
``public rights of way?'
C4(ii). If a state, local jurisdiction, or Indian tribe elects not
to apply its own standard of safety, should the HMR contain a default
provision that specifies minimal requirements?
III. Supplemental ANPRM Comment Period
We are continuing to evaluate this issue to determine the best way
to promote safety in transportation and transportation-related
activities. However, because most comments to the ANPRM were submitted
at least two years ago, we are issuing this supplemental ANPRM to
assure that we have the benefit of the most recent information
available and that we hear from a broad spectrum of interested
organizations and individuals. If you submitted comments in response to
the 1996 ANPRM, you may supplement or update your comments. If you did
not submit comments in response to the 1996 ANPRM, you may do so until
July 26, 1999. Your comments may address the issues outlined in the
1996 ANPRM or the questions listed in this supplemental ANPRM. You
should explain the reason for any change you recommend. In particular,
we encourage you to submit proposed regulatory text that would
accomplish your objectives.
The 1996 ANPRM is available as part of the public docket
established for this rulemaking under Docket No. RSPA-98-4952. You can
view the 1996 ANPRM by accessing the DOT Dockets Management System web
site at ``http://dms.dot.gov/.'' If you do not have Internet access,
you can call the Hazardous Materials Information Center at 1-800-467-
4922 to obtain a copy.
Issued in Washington, DC on April 20, 1999 under authority
delegated in 49 CFR Part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration.
[FR Doc. 99-10380 Filed 4-26-99; 8:45 am]
BILLING CODE 4910-60-P
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