[Federal Register Volume 64, Number 80 (Tuesday, April 27, 1999)]
[Proposed Rules]
[Pages 22718-22723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10380]



[[Page 22717]]

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

  Federal Register / Vol. 64, No. 80 / Tuesday, April 27, 1999 / 
Proposed Rules  

[[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. 
You may also submit comments by e-mail to the following address: 
``[email protected]''. 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.
     Loading of non-bulk packages by the offeror or carrier 
onto a transport vehicle, vessel, or aircraft.
     Loading of bulk packagings by the offeror or carrier, 
including monitoring or attendance of the loading function.
     In-plant movements of bulk packages or transport vehicles 
loaded and qualified for off-site transportation.
     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.
     Parking or staging of transport vehicles, including rail 
cars, incidental to movement.
     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.
     Storage of packages awaiting shipment to their ultimate 
destination.
    4. Functions performed at destination facility.
     Long-term storage of packages at distribution facilities.
     Unlimited storage awaiting unloading at destination 
facility, including loaded rail cars at plant sites.
     In-plant movements of bulk packages or transport vehicles 
loaded with non-bulk packages.
     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

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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/

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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.
     Loading of non-bulk packages by the carrier onto a vessel, 
aircraft, or transport vehicle.
     Loading of bulk packagings by the carrier, including 
monitoring or attendance of the loading process.
     Carrier movements within the shipper facility.
    3. In-transit movement of shipment.
     Parking or staging of transport vehicles, including rail 
cars, incidental to movement.
     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.
     Storage of packages awaiting shipment to their known 
ultimate destination.
    4. Functions performed at destination facility.
     Carrier movements within the consignee's facility.
     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.
     Parking or staging of transport vehicles, including rail 
cars, incidental to movement.
     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.
     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