California and Los Angeles County Requirements Applicable to On- Site Handling and Transportation of Hazardous Materials; Decision on Petition for Reconsideration

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Preemption Determination Nos. PD-8(R), PD-9(R), PD-10(R), and PD-

11(R); Docket Nos. PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R),

respectively]

California and Los Angeles County Requirements Applicable to On-

Site Handling and Transportation of Hazardous Materials; Decision on

Petition for Reconsideration

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of Deferral of Decision on Petitions for Reconsideration

of Administrative Determination of Preemption.

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SUMMARY: RSPA is deferring action on a decision with respect to the

petitions for reconsideration of PD-8, PD-9, PD-10 and PD-11 until the

agency can complete a rulemaking, RSPA Docket HM-223, which focuses on

numerous issues that are raised in the petitions for reconsideration.

Specifically, both the petitions for reconsideration and RSPA Docket

HM-223 raise issues regarding the on-site handling and transportation

of hazardous materials and whether certain transportation and unloading

activities are regulated under the HMR. RSPA is deferring action on the

petitions for reconsideration in order to avoid prejudging matters that

are more appropriately handled through notice-and-comment procedures.

FOR FURTHER INFORMATION CONTACT: Nancy E. Machado, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001,

telephone 202-366-4400.

SUPPLEMENTARY INFORMATION: On February 15, 1995, RSPA published its

determinations in PD-8(R), PD-9(R), PD-10(R), and PD-11(R) (Docket Nos.

PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R), respectively) (60 FR

8774). RSPA did not preempt the two California statutory provisions or

34 of the 40 Los Angeles County regulations at issue. The State and

local requirements related to permits; fees; on-site hazard

communication; the definition, classification, transportation, storage,

handling and unloading of hazardous materials at consignee facilities;

and container design and construction. RSPA did, however, preempt six

Los Angeles County regulations. RSPA found that those regulations

restricted tank car unloading and imposed fees, which were not used for

hazardous materials transportation

[[Page 38514]]

purposes, on consignee unloading activities.

Within the 20-day time period provided in 49 CFR 107.211(a), HASA,

Inc., The Society of the Plastics Industry, Inc.; National Propane Gas

Association; Pioneer Chlor Alkali Company, Inc.; National Tank Truck

Carriers, Inc.; and Chlorine Institute, Inc. and Chemical

Manufacturers' Association (Petitioners) filed petitions for

reconsideration of RSPA's determinations. The petitioners raised

numerous issues regarding the on-site handling and transportation of

hazardous materials, and questioned whether certain transportation and

unloading activities are regulated under the HMR.

RSPA currently is engaged in a rulemaking, RSPA Docket HM-223,

which directly addresses the issues raised by the petitioners. In

recent years, RSPA has issued a number of interpretations,

inconsistency rulings and preemption determinations in response to

public requests for clarification regarding the meaning of the term

``transportation in commerce'' and whether particular activities fall

under that term and, thus, are subject to the HMR. Although these

documents are publicly available, the regulated industry, Federal

agencies, States, local governments, and Indian tribes have not been

consistently aware of their existence and availability. Furthermore,

some of the interpretations and decisions in these documents need to be

revised in light of changes in DOT's, and other Federal agencies',

statutory authority. In Docket HM-223, RSPA is proposing to

consolidate, clarify, and revise, as necessary, these interpretations,

rulings and decisions, and make them part of the HMR.

Based on the above, RSPA will defer issuing a decision with respect

to the petitions for reconsideration until the rulemaking is completed.

RSPA is taking this action in order to avoid prejudging issues which

are more appropriately handled through the notice-and-comment process

under the Administrative Procedure Act, 5 U.S.C. 553. An Advance Notice

of Proposed Rulemaking; Notice of Public Meeting, under RSPA Docket HM-

223 will be published in the Federal Register at a later date.

Issued in Washington, DC on July 18, 1996.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 96-18821 Filed 7-23-96; 8:45 am]

BILLING CODE 4910-60-P