Applicability of the Hazardous Materials Regulations to Loading, Unloading and Storage

SUMMARY: This ANPRM announces three public meetings at which RSPA will

seek ideas, proposals and recommendations regarding the applicability

of the Hazardous Materials Regulations (HMR) to particular hazardous

materials transportation activities. This information will help the

agency to consolidate, clarify, revise and update existing agency

interpretations, rulings and decisions regarding the applicability of

the HMR and determine whether there is a need to amend the HMR.

Clarifying the applicability of the HMR will facilitate compliance and

will have the beneficial effect of clarifying the applicability of

other Federal, State, local and Indian tribe hazardous materials

requirements.

DATES: Meetings. (1) September 13, 1996 from 9:00 a.m. to 4:00 p.m. in

Atlanta, Georgia--public meeting.

(2) September 25, 1996 from 9:00 a.m. to 4:00 p.m. in Sacramento,

California--working-group session.

(3) October 30, 1996 from 9:00 a.m. to 4:00 p.m. in Philadelphia,

Pennsylvania--working-group session.

Oral presentations--Atlanta. Any person wishing to present an oral

statement at the Atlanta public meeting should notify Nancy E. Machado

by telephone or in writing, on or before September 10, 1996. Five

copies of written text of oral statements should be presented to RSPA

staff immediately prior to the oral presentation.

Written comments; working-group sessions in Sacramento and

Philadelphia. Written comments must be received on or before November

30, 1996. Any person wishing to participate in the Sacramento working-

group session should notify Nancy E. Machado by telephone or in writing

on or before September 18, 1996. Any person wishing to participate in

the Philadelphia working-group session should notify Nancy E. Machado

by telephone or in writing on or before October 23, 1996.

ADDRESSES: Meetings. (1) The Omni Hotel, 100 CNN Center, Atlanta, GA

30335.

(2) Department of Social Services Auditorium, 744 P Street,

Sacramento, CA 95184.

(3) Penn Tower Hotel, Civic Center Boulevard at 34th St.,

Philadelphia, PA 19104.

Comments. Address comments to Dockets Unit (DHM-30), Office of

Hazardous Materials Safety, Research and Special Programs

Administration, U.S. Department of Transportation, Washington, D.C.

20590-0001. Comments should identify the docket and notice number and

be submitted, when possible, in five copies. Persons wishing to receive

confirmation of receipt of their comments should include a self-

addressed, stamped postcard. The Dockets Unit is located in Room 8421

of the Nassif Building, 400 Seventh Street, S.W., Washington, D.C.

20590-0001. Office Hours are 8:30 a.m. to 5:00 p.m., Monday through

Friday, except on public holidays when the office will be closed.

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, S.W., Washington D.C. 20590-

0001, telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Temporary Closure of Docket Room

In an effort to improve the indoor air quality in the Nassif

Building, 400 Seventh Street, SW, Washington, DC 20590, the U.S.

Department of Transportation and the building's owner have initiated a

major cleaning project. This project entails a thorough cleaning of the

building on a floor-by-floor basis. During the cleaning of each floor,

the floor will be closed to employees and visitors. It is estimated

that the cleaning of each floor will take approximately three weeks.

During this three-week period, the offices on each floor will be closed

and the affected employees will be relocated to another building. Once

the cleaning of a floor is complete, employees and visitors may return

to that floor. RSPA's Dockets Unit is located on the eighth floor.

Cleaning of the eighth floor is scheduled to begin on Monday, August

12, 1996 and last until September 3, 1996. As a result, RSPA's Dockets

Unit is scheduled to close for approximately three weeks.

Because of the volume of materials in the Dockets Unit, it cannot

be relocated during the cleaning and will be closed. However, since the

comment period of this ANPRM is open until November 30,1996 Docket HM-

223 will be relocated and made available for review in Room 5414A of

the Nassif Building, telephone (202) 366-4900. The public may view this

docket between the hours of 8:30 a.m. and 5:30 p.m., Monday through

Friday, except Federal holidays.

Following completion of cleaning, Docket HM-223 will be returned to

the Dockets Unit in Room 8421 of the Nassif Building, 400 Seventh

Street, SW, Washington, DC, 20590-0001, telephone (202) 366-5046.

II. Background

The HMR, 49 CFR Parts 171-180, are promulgated in accordance with

the direction 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.''

``Transportation'' is defined as ``the movement of property, and any

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--(A) between a place in a State and a

place outside of the State; or (B) that affects trade or transportation

between a place in a State and a place outside of the State.'' 49

U.S.C. 5102(1).

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, therefore, 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. The purpose of this rulemaking is to consolidate,

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

decisions, and make them part of the HMR.

Clarifying the applicability of the HMR would also have the

beneficial effect of clarifying the applicability of the Environmental

Protection Agency's (EPA's) and the Occupation Safety and Health

Administration's (OSHA's) regulations concerning materials covered

under the HMR. For example, EPA regulates hazardous materials to ensure

that they are not unintentionally

[[Page 39523]]

or unlawfully released into the environment (see, e.g., SARA Title III,

42 U.S.C. 11001, et seq.), and OSHA regulates hazardous materials in

the work-place to ensure worker safety and health see, e.g., the

Occupational Safety and Health Act of 1970 (OSHAct), 29 U.S.C. 651 et

seq.). To the extent that DOT does not regulate in a particular area,

both EPA and OSHA are free to regulate to the full extent of their

statutory authority. However, where DOT does regulate in a particular

area, both have limited authority to regulate in that same area. For

example, in its hazardous material emergency programs, EPA has exempted

by regulation, or is required to exempt by statute, certain

transportation activities that are subject to the HMR. See 42 U.S.C.

11047 (transportation and storage incident to such transportation are

exempt from most SARA Title III requirements); 40 CFR 68.3 (certain

transportation-related activities are exempt from the definition of

``stationary source'' in EPA's Chemical Accident Prevention

regulations). OSHA faces similar limitations. See 29 U.S.C. 653(b)(1)

(``Nothing in [the Occupational Safety and Health Act of 1970] shall

apply to working conditions of employees with respect to which other

Federal agencies . . . exercise statutory authority to prescribe or

enforce standards or regulations affecting occupational safety or

health.'').

Clarifying the applicability of the HMR would have the beneficial

effect of clarifying where States, local governments and Indian tribes

may regulate without being preempted under Federal hazardous materials

transportation law (Federal hazmat law), 49 U.S.C. 5101-5127. When it

last substantively amended Federal hazmat law in 1990, Congress stated

that uniform regulations promote safety in the transportation of

hazardous materials. See Public Law (Pub. L) 101-615, Sec. 2, 104 Stat.

3244 (1990). In order to promote consistency in laws and regulations

governing the transportation of hazardous materials, to achieve greater

uniformity among those laws, and to promote the public health, welfare,

and safety at all levels, Congress gave DOT the authority to preempt a

requirement of a State, political subdivision of a State or Indian

tribe where:

(1) complying with a requirement of the State, political

subdivision, or tribe and a requirement of [Federal hazmat law] or a

regulation prescribed under [Federal hazmat law] is not possible;

(2) the requirement of the State, political subdivision, or

tribe, as applied and enforced, is an obstacle to accomplishing and

carrying out [Federal hazmat law] or a regulation prescribed under

[Federal hazmat law]; or

(3) a law, regulation, order or other requirement of a State,

political subdivision of a State, or Indian tribe about any of the

following subjects . . . is not substantively the same as a

provision of [Federal hazmat law] or a regulation prescribed under

[Federal hazmat law]:

(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 package or

container represented, marked, certified, or sold as qualified for

use in transporting hazardous material.

49 U.S.C. 5125 (a) and (b).

Non-Federal requirements that are authorized by other Federal law

are not preempted. See 49 U.S.C. 5125(b).

Petitions for Reconsideration of Administrative Determination of

Preemption

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, finding that those regulations restricted tank car

unloading and imposed fees, which were not used for hazardous materials

transportation 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.

This rulemaking will directly address the issues raised by the

petitioners in PD-8(R), PD-9(R), PD-10(R), and PD-11(R). Consequently,

RSPA will defer issuing a decision with respect to the petitions for

reconsideration until this 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. In conjunction with this ANPRM, RSPA has

also published, in the Federal Register of July 24, 1996 (61 FR 38513),

a ``Notice of Deferral of Decision on Petitions for Reconsideration of

Administrative Determination of Preemption.''

III. Areas of Regulatory Concern

RSPA asks commenters to address the following questions and to

identify other related issues RSPA should address in any further

rulemaking under this docket:

Loading

Background

The HMR impose filling conditions and limitations for packaging

hazardous materials, such as specifying the types of packagings which

must be used and the filling limits for those packagings. 49 CFR Part

173. The HMR also specify requirements for marking and labeling

hazardous materials shipments. 49 CFR 172.300-338 and 172.400-450,

respectively. The HMR historically have addressed the offering of

packages for transportation, holding the shipper, or offeror,

responsible for compliance with applicable regulations at the time a

package is offered for transportation. 49 CFR 171.1, 171.2. Concerning

in-plant processes, the HMR address only the loading of highway cargo

tanks. 49 CFR 177.834-844.

Issues

(1) At what point is a package offered for ``transportation in

commerce''? When filled? When a package is selected from inventory?

When an offer (oral or written) has been made to a carrier? When a

shipping paper has been executed? When the packaging is physically

tendered to the carrier? At some other point? Explain your answer.

(2) (a) If the shipper is a private carrier, should any portion of

[[Page 39524]]

transportation, prior to movement onto a public road, be considered

transportation in commerce?

(b) If the carrier is a contract or common carrier, should any

movement on the shipper's facility of a transport vehicle containing

hazardous material be considered in transportation in commerce,

including movement to an on-site storage facility?

(c) Should public accessibility to the shipper's facility have any

bearing on whether in-plant movement is regulated?

(3) (a) Should the agency continue to regulate the loading of cargo

tanks but not other bulk packagings (except where a function relates

directly to safety during transportation away from the loading

facility)?

(b) Should regulation be limited to loading of cargo tanks or other

bulk packaging only where contract or common carrier personnel are

involved in the loading?

(4) (a) Should the agency regulate the filling of non-bulk

packagings beyond functions that directly relate to safety during

transportation away from the filling facility?

(b) Should regulation be limited to the loading or filling of bulk

or non-bulk packagings performed by contract or common carrier

personnel only?

(5) Are there others factors for determining whether loading of

hazardous materials is ``incidental'' to transportation in commerce?

Unloading

Background

Generally, under the HMR, transportation in commerce is considered

complete when hazardous materials are delivered to a consignee's

location and the delivering carrier has physically tendered the

materials to the consignee, such as by unloading a trailer or

disconnecting a trailer for unloading by the consignee. See 49 CFR

177.834(i)(2). This applies to both bulk and non-bulk hazardous

materials. A notable exception to the general rule is that the HMR

regulate the unloading of tank cars by consignees, even though there is

usually no carrier involvement in the process other than positioning

the tank car at the unloading site. 49 CFR 174.67. OSHA has promulgated

several worker health and safety standards, e.g., Process Safety

Management of Highly Hazardous Chemicals, 29 CFR 1910.119; Hazardous

Waste Operations and Emergency Response, 29 CFR 1910.120, which provide

more comprehensive protection for consignees' employees than RSPA's

limited consignee unloading requirements.

Issues

(1) (a) Should RSPA continue to regulate rail tank car unloading by

consignees?

(b) Should RSPA continue to regulate rail tank car unloading by

consignees in light of OSHA's comprehensive worker safety and health

standards?

(c) Should RSPA or FRA promulgate regulations for the protection of

railroad workers while performing work assignments within plant

boundaries?

(d) If RSPA continues to regulate rail tank car unloading by

consignees, should RSPA only regulate to the extent that the unloading

process is begun or, alternatively, completed, within a specified

period of time (e.g., within two weeks of delivery to the consignee)?

If so, what time frame do you recommend?

(2) Should RSPA regulate unloading, for other than tank cars, of

non-bulk or bulk packages when unloading does not involve a contract or

common carrier?

(3) Should public accessibility to a consignee's facility have any

bearing on whether unloading is regulated?

(4) Since a private motor carrier may be both a carrier and

consignee, at what point should transportation be considered complete

for that carrier? (e.g., When a transport vehicle is delivered to the

carrier's facility? When it is unloaded?)

(5) Are there other factors for determining whether unloading of

hazardous materials is ``incidental'' to transportation in commerce?

Storage

Background

Storage that is incidental to transportation in commerce and,

consequently, regulated under the HMR, includes storage by a carrier

that occurs between the time a hazardous material is offered for

transportation to the carrier and the time it reaches its intended

destination and is delivered by the carrier and accepted by the

consignee. See 49 CFR 174.204(a)(2) (requirements for tank car

delivery, including storage, of gases). RSPA has expressed the view

that storage of hazardous material on consignor or consignee property

(including leased track) is not incidental to transportation in

commerce and, thus, not regulated under the HMR. See Inconsistency

Ruling 28, City of San Jose, California; Restrictions on Storage of

Hazardous Materials, 55 FR 8884 (Mar. 8, 1990). Similarly, when a

shipment is consigned by the offerer to a storage or transfer facility

which is the destination of the shipment, rather than to an end user,

RSPA believes the shipment is out of transportation in commerce once

received and then unloaded, or stored loaded, at the storage or

transfer facility.

Issues

(1) Should the storage of a hazardous material on leased track, by

any person, be regulated under the HMR? Why or why not?

(2) Should the HMR continue to apply only to storage that may occur

between the time a hazardous materials shipment is offered for

transportation to a common, contract or private carrier and the time

the shipment reaches its intended destination and is accepted by the

consignee?

(3) Should RSPA regulate only those hazardous materials shipments

that are stored while under ``active'' shipping papers? If so, how

should RSPA define ``active'' shipping papers?

(4) Are there others factors for determining whether storage of

hazardous materials is ``incidental'' to transportation in commerce?

Handling

Background

Based on their respective statutory authorities, both DOT and OSHA

regulate hazardous materials. Nevertheless, prior to 1990, where DOT

exercised its authority, under the former Hazardous Materials

Transportation Act (HMTA), 49 U.S.C.A. 1801 et seq., 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. See 29 U.S.C. 653(b)(1).

In 1990, Congress enacted the Hazardous Materials Transportation

Uniform Safety Act of 1990 (HMTUSA), Pub. L. 101-615. Among other

things, HMTUSA amended the HMTA to limit the preemptive effect of DOT

regulations on Federal OSHA regulations. See 49 U.S.C. App. 1805(b)(3)

(1990).

In 1994, the HMTA was codified by Pub. L. 103-272. The purpose of

Pub. L. 103-272 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 language in 49 U.S.C. 5107(f)(2), where former HMTA

Sec. 1805(b)(3) is codified, reinforces Congress' intent to limit the

preemptive effect of DOT regulations on Federal OSHA regulations.

Section 5107(f)(2) clearly nullifies the HMR's preemptive effect on

Federal OSHA regulations in several areas--(1) Hazmat employee training

under 49 U.S.C. 5107 (a)-(d);

[[Page 39525]]

(2) handling under 49 U.S.C. 5106; (3) registration under 49 U.S.C.

5108; and (4) motor carrier safety permits under 49 U.S.C. 5109.

Section 5125 of Federal hazmat law continues to define the preemptive

effect of the HMR on State, local government and Indian tribe

requirements.

Despite language in 49 U.S.C. 5106 authorizing DOT to regulate the

handling of hazardous materials, language in 49 U.S.C. 5125 authorizing

DOT to preempt non-Federal handling requirements that are not

substantively the same as those under Federal hazmat law or the HMR,

and language in 49 U.S.C. 5107(f)(2) limiting the preemptive effect of

DOT's handling regulations, nowhere does Federal hazmat law define the

term ``handling.'' In interpreting the applicability of the HMR, RSPA

has held that the term ``handling'' includes, among other activities,

the unloading of hazardous materials incidental to transportation in

commerce. See PD-9 (February 15, 1995; 60 FR 8774).

Issues

(1) Which transportation-related activities should be included

under the term ``handling''? Why?

(2) Which transportation-related activities, if any, should be

excluded from the list of activities that constitute ``handling''? Why?

(3) Are there factors for determining when a hazardous materials

transportation activity is ``handling'' within the meaning of Federal

hazmat law and, therefore, regulated under the HMR?

IV. Participation/Conduct of Meetings

The public meetings will be informal. Representatives from DOT will

be in attendance. RSPA has invited representatives from OSHA and EPA to

attend because of the interest those agencies share with DOT in

regulating hazardous materials. RSPA invites all interested parties,

including States, local governments and Indian tribes, to participate

in these meetings.

Participation in the Atlanta meeting will be in the form of oral

statements. Speakers will be limited to ten minutes. The Atlanta

meeting may conclude early if all participants have been heard.

The Sacramento and Philadelphia meetings also will be informal.

RSPA proposes to begin the Sacramento and Philadelphia meetings by

giving meeting participants an overview of the major issues of concern

identified by commenters during the Atlanta meeting. Meeting

participants then will form working groups to discuss those issues and

to generate ideas, proposals and recommendations for use by the agency

when it begins preparing a notice of proposed rulemaking in this

docket. A DOT employee will be assigned to each working group as a

facilitator. At the conclusion of the working-group discussions, a

representative from each working group will present each group's ideas,

proposals and recommendations to all of the meeting participants for

further discussion.

If it appears that there is insufficient public interest in a

break-out group format, RSPA may decide to hold traditional public

meetings in Sacramento or Philadelphia.

Issued in Washington, DC on July 23, 1996, under authority

delegated in 49 CFR Part 106.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 96-19114 Filed 7-26-96; 8:45 am]

BILLING CODE 4910-60-P