[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]
[[Page 39521]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
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
[[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