[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Proposed Rules]
[Pages 39522-39525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19114]


      

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Part III





Department of Transportation





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Research and Special Programs Administration



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49 CFR Part 171 et al.



Applicability of Hazardous Materials Regulations to Loading, Unloading, 
and Storage; Proposed Rule

  Federal Register / Vol. 61, No. 146 / Monday, July 29, 1996 / 
Proposed Rules  

[[Page 39522]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 172, 173, 174, 175, 176, 177, 178, 179, 180

[Docket HM-223; Notice No. 96-15]
RIN 2137-AC68


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

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

ACTION: Advance notice of proposed rulemaking (ANPRM); notice of 
meeting.

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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

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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

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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);

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(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