[Federal Register Volume 65, Number 68 (Friday, April 7, 2000)]
[Notices]
[Pages 18422-18426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8662]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-7126 (PDA-24 (R))]


Application by the Institute of Makers of Explosives for a 
Preemption Determination as to New Jersey Restrictions on 
Transportation of Blasting Caps With Other Commercial Explosives

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

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to submit comments on an 
application by the Institute of Makers of Explosives (IME) for an 
administrative determination whether Federal hazardous materials 
transportation law preempts New Jersey law and regulations prohibiting 
the transportation of blasting caps on the same motor vehicle with more 
than 5,000 pounds of other commercial explosives.

DATES: Comments received on or before May 22, 2000, and rebuttal 
comments received on or before July 6, 2000 will be considered before 
issuance of an administrative ruling on IME's application. Rebuttal 
comments may discuss only those issues raised by comments received 
during the initial comment period and may not discuss new issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW, Washington, DC 20590-0001. The application and all 
comments are also available on-line through the home page of DOT's 
Docket Management System, at ``http://dms.dot.gov.''
    Comments must refer to Docket No. RSPA-00-7126 and may be submitted 
to the docket either in writing or electronically. Send three copies of 
each written comment to the Dockets Office at the above address. If you 
wish to receive confirmation of receipt of your written comments, 
include a self-addressed, stamped postcard. To submit comments 
electronically, log onto the Docket Management System website at http://dms.dot.gov, and click on ``Help & Information'' to obtain 
instructions.
    A copy of each comment must also be sent to:

(1) Ms. Cynthia Hilton, Vice President, Institute of Makers of 
Explosives, 1120 Nineteenth Street, NW, Suite 310, Washington, DC 
20036-3605, and
(2) Mr. Fred Cohen, Legal Liaison, New Jersey Department of Labor, P.O. 
Box 110, Trenton, NJ 08625-0110.

    A certification that a copy has been sent to these persons must 
also be included with the comment. (The following format is suggested: 
``I certify that copies of this comment have been sent to Ms. Hilton 
and Mr. Cohen at the addresses specified in the Federal Register.'')
    A list and subject matter index of hazardous materials preemption 
cases,

[[Page 18423]]

including all inconsistency rulings and preemption determinations 
issued, are available through the home page of RSPA's Office of the 
Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper copy of this 
list and index will be provided at no cost upon request to the 
individual named in FOR FURTHER INFORMATION CONTACT below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

    IME has applied for a determination that Federal hazardous material 
transportation law, 49 U.S.C. 5125 et seq., preempts New Jersey 
statutory and regulatory restrictions against the transportation of 
blasting caps on the same motor vehicle with more than 5,000 pounds of 
other commercial explosives.
    According to IME's application, New Jersey's Explosives Act, as 
codified in N.J.S.A. 21:1A-128 et seq., includes provisions governing 
the ``Transportation of explosives'' at N.J.S.A. 21:1A-137. Paragraph F 
of that section provides:

    Blasting caps or electric blasting caps, or both, may be 
transported in the same vehicle with other commercial explosives 
only when the net weight of the other commercial explosives does not 
exceed 5,000 pounds.

IME also states that, in 1998, the New Jersey Department of Labor 
adopted and began enforcing regulations governing off-highway 
transportation of explosives, including the provision in N.J.A.C. 
12:190-6.5(d) that:

    Blasting caps or electric blasting caps, or both, may be 
transported in the same vehicle with other commercial explosives 
only when the net weight of the other commercial explosives does not 
exceed 5,000 pounds.

    IME asserts that these statutory and regulatory restrictions are 
preempted because they concern the ``handling'' of a hazardous material 
and are not substantively the same as the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.\1\ In 49 CFR 177.835(g), the 
HMR provide that:
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    \1\ RSPA notes that New Jersey has also adopted, as State law, 
the requirements in the HMR. N.J.A.C. 16:49-1.3(i).

    No detonator assembly or booster with detonator may be 
transported on the same motor vehicle with any Division 1.1, 1.2 or 
1.3 (Class A or Class B explosive) material (except other detonator 
assemblies, boosters with detonators or detonators), explosives for 
blasting or detonating cord Division 1.4 (Class C explosive) 
material. No detonator may be transported on the same motor vehicle 
with any Division 1.1, 1.2 or 1.3 (Class A or Class B explosive) 
material (except other detonators, detonator assemblies or boosters 
with detonators), explosives for blasting or detonating cord 
Division 1.4 (Class C explosive) material unless--
    (1) It is packed in a specification MC 201 (Sec. 178.318 of this 
subchapter) container, or
    (2) The package conforms with requirements prescribed in 
Sec. 173.63 of this subchapter, and its use is restricted to 
instances when--
    (i) There is no Division 1.1, 1.2, or 1.3 (Class A or Class B 
explosive) material or blasting agent loaded on the motor vehicle; 
and
    (ii) A separation of 61 cm (24 inches) is maintained between 
each package of detonators and each package of detonating cord; or
    3. It is packed and loaded in accordance with a method approved 
by the Department [of Transportation]. One method approved by the 
Department is as follows:
    (i) The detonators are in packagings as prescribed in 
Sec. 173.63 of this subchapter which in turn are loaded into 
suitable containers or separate compartments. Both the detonators 
and the container or compartment must meet the requirements of the 
Institute of Makers of Explosives' Standard (IME Safety Library 
Publication No. 22).
    IME also contends that these New Jersey statutory and regulatory 
restrictions are preempted because they are an obstacle to the 
accomplishing and carrying out the Federal hazardous material 
transportation law and the HMR. IME states that a person using both 
blasting caps and more than 5,000 pounds of other commercial explosives 
at a site within New Jersey must either: (1) Use separate vehicles to 
transport the blasting caps and the other commercial explosives, from 
the origin of the transportation to the job site; or (2) at some point 
before leaving the public highway at the job site, transfer either the 
blasting caps or the other commercial explosives to a separate vehicle.
    IME submitted three affidavits with its application. Each of the 
affiants stated that his company uses two separate vehicles to 
transport detonators and other explosives to meet New Jersey's 
requirements. The President of Maurer & Scott, Inc., an explosives 
service and transportation company, testified that the use of separate 
vehicles to transport detonators and explosives

leads to more explosives vehicles on the road, trucks not loaded to 
capacity, inefficient transportation, excess handling of hazardous 
materials, and greater exposure to the public. Additionally, more 
vehicles end up at the minesite which creates an increased safety 
hazard.

    He also stated that the New Jersey Department of Labor has denied 
his company's requests for a waiver from the prohibition against 
transporting blasting caps on the same vehicle with more than 5,000 
pounds of other commercial explosives.
    IME argues that requiring separate vehicles for detonators and 
other commercial explosives exposes the public to greater overall risk, 
presumably both within and outside of New Jersey, because ``the more 
trucks on the road, irrespective of the cargo, the higher likelihood of 
an accident.'' IME states that transferring either the detonators or 
the other explosives to a second vehicle, before leaving the public 
highway at the job site, also involves ``unnecessary truck traffic'' 
and creates ``the added risk from the unnecessary handling during 
loading or reloading.'' IME notes that, in 49 CFR 177.835(j), the HMR 
specifically prohibit the transfer of any Division 1.1, 1.2 or 1.3 
(Class A or B explosive) material

from one container to another, or from one motor vehicle to another 
vehicle, or from another vehicle to a motor vehicle, on any public 
highway, street, or road, except in the case of an emergency.

    IME also states that it is unaware of any other State that imposes 
the same restrictions as New Jersey on the transportation of blasting 
caps with other commercial explosives. IME has not indicated whether 
New Jersey's restrictions cause shipments of blasting caps and other 
explosives to be routed around the State of New Jersey, rather than on 
highways through the State.
    The text of IME's application and a list of the exhibits to the 
application are set forth in Appendix A to this notice. A paper copy of 
the exhibits to IME's application will be provided at no cost upon 
request to the individual named in FOR FURTHER INFORMATION CONTACT 
above.

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to IME's application. Subsection (a) 
provides that--in the absence of a waiver of preemption by DOT under 
Sec. 5125(e) or specific authority in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted if

    (1) complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued under this chapter is not possible; or

[[Page 18424]]

    (2) the requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to the 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria which RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Public Law 93-633 section 112(a), 
88 Stat. 2161 (1975). The dual compliance and obstacle criteria are 
based on U.S. Supreme Court decisions on preemption. Hines v. 
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. 
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous material 
transportation law or a regulation prescribed under that law, is 
preempted unless it is authorized by another Federal law or DOT grants 
a waiver of preemption:

    (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, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    Subsection (c)(1) of 49 U.S.C. 5125 provides that, beginning two 
years after DOT prescribes regulations on standards to be applied by 
States and Indian tribes in establishing requirements on highway 
routing of hazardous materials,

a State or Indian tribe may establish, maintain, or enforce a 
highway routing designation over which hazardous material may or may 
not be transported by motor vehicles, or a limitation or requirement 
related to highway routing, only if the designation, limitation, or 
requirement complies with section 5112(b).\2\
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    \2\ DOT's standards and procedures for State and Indian tribe 
requirements for highway routing of non-radioactive hazardous 
materials are issued under 49 U.S.C. 5112(b) and contained in 49 CFR 
Part 397, subpart C.

    These preemption provisions in 49 U.S.C. 5125 carry out Congress' 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
the Senate Commerce Committee ``endorse[d] the principle of preemption 
in order to preclude a multiplicity of State and local regulations and 
the potential for varying as well as conflicting regulations in the 
area of hazardous materials transportation.'' S. Rep. No. 1102, 93rd 
Cong. 2nd Sess. 37 (1974). When it amended the HMTA in 1990, Congress 
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specifically found that:

    (3) many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Public Law 101-615 Section 2, 104 Stat. 3244. A Federal Court of 
Appeals has found that uniformity was the ``linchpin'' in the design of 
the HMTA, including the 1990 amendments that expanded the original 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991). (In 1994, Congress revised, codified and 
enacted the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 
51. Pub. L. 103-272, 108 Stat. 745.)

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. The 
Secretary of Transportation has delegated authority to make 
determinations of preemption that concern highway routing to the 
Federal Motor Carrier Safety Administration (FMCSA) and those 
concerning all other hazardous materials transportation issues to RSPA. 
49 CFR 1.53(b) and 1.73(d)(2) (as added October 9, 1999, 64 FR 56720, 
56721 [Oct. 19, 1999], and revised January 1, 2000, 65 FR 220, 221 
[Jan. 4, 2000]).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA will 
publish its determination in the Federal Register. See 49 CFR 107.209. 
If the comments show that New Jersey's statutory and regulatory 
restrictions cause diversions in highway routing of explosives, RSPA's 
determination may be issued jointly with FMCSA's Administrator. 49 CFR 
397.211(a). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211, 397.223. Any party to the 
proceeding may seek judicial review in a Federal district court. 49 
U.S.C. 5125(f).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution or under statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law. A State, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon,  above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
(and FMCSA) are guided by the principles and policies set forth in 
Executive Order No. 13132, entitled ``Federalism'' (64 FR 43255 (August 
4, 1999). Section 4(a) of that Executive Order authorizes preemption of 
State laws only when a statute contains an express preemption 
provision, there is other clear evidence that Congress intended to 
preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. Section 5125 contains 
express preemption previsions, which RSPA (and FMCSA) have implemented 
through their regulations.

IV. Public Comments

    All comments should be limited to the issue whether 49 U.S.C. 5125 
preempts N.J.S.A. 221:1A-137.F and N.J.A.C. 12:190-6.5(d). Comments 
should specifically address the preemption criteria detailed in Part 
II, above, and set forth in detail the manner

[[Page 18425]]

in which the New Jersey requirements are applied and enforced. Persons 
intending to comment should review the standards and procedures 
governing consideration of applications for preemption determinations, 
set forth at 49 CFR 107.201-107.211 and 397.201-397.211.

    Issued in Washington, DC on April 3, 2000.
Robert A. McGuire,
Acting Associate Administrator for Hazardous Materials Safety, Research 
and Special Programs, Administration.

Appendix A

Before the United States Department of Transportation Office of 
Hazardous Materials Safety

    Application of the Institute of Makers of Explosives to initiate 
a proceeding to determine whether various requirements imposed by 
the State of New Jersey on the transportation of certain Class 1 
materials to, from or through the State are preempted by the 
Hazardous Materials Transportation Act

February 28, 2000.

Interest of the Petitioner

    The Institute of Makers of Explosives (IME) represents companies 
that transport by truck Class 1 materials throughout the United 
States, including points to, from and through the State of New 
Jersey (State). Despite full compliance with the hazardous materials 
regulations (HMR), members of the IME are precluded from 
transporting Class 1 materials in amounts in excess of 5,000 pounds 
if blasting caps are transported in the same vehicle--a practice 
allowed by the HMR. The IME asserts that the State requirements 
contravene the Hazardous Materials Transportation Act (HMTA).

Background

    The State's Explosives Act (Statute) provides that ``[b]lasting 
caps or electric blasting caps, or both, may be transported in the 
same vehicle with other commercial explosives only when the net 
weight of the other commercial explosives does not exceed 5,000 
pounds.''\1\ The Statute allows for no exceptions. The Statute 
provides that ``[v]iolations of the provisions of this act or rules 
and regulations made hereunder shall be punishable for the first 
offense by a penalty of not less than $100 nor more than $5,000 and 
for the third and each succeeding offense by a penalty of not less 
than $500 nor more than $10,000.''\2\ If the State discovers a 
condition that exists in violation of the provisions of this Act, 
the State also has power to order such violation to cease.\3\
    Up until 1998, this provision of law did not interfere with the 
transportation of Class 1 materials because implementing regulations 
did not address this statutory requirement. In 1998, this oversight 
was corrected. Rules issued by the NJ Department of Labor (NJDL), 
which oversees the implementation of the Act, were amended to 
include the statutory restriction.\4\
    The IME subsequently contracted the NJDL to advise the NJDL of 
the possible inconsistency with the HMTA. The NJDL acknowledged our 
concern, but felt that there was no recourse given the provision in 
the Statute. In fact, the regulatory version appears to temper the 
Statute by qualifying that the quantity restriction on Class 1 
materials only applies when explosives are being transported ``off-
highway.''\5\ The State Act, on the other hand, clearly pertains to 
any transportation of these materials by any mode.\6\
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    \1\ N.J.S.A. 21:1A-137F.
    \2\ N.J.S.A. 21:1A-140.
    \3\ N.J.S.A. 21:1A-130.
    \4\ N.J.A.C. 12:190-6.5(d)
    \5\ N.J.A.C. 12:190-6.5--Off highway transportation of 
explosives.
    \6\ N.J.S.A. 21:1A-137--Transportation of explosives.
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State Requirements for Which a Determination Is Sought

    This application seeks preemption of the following State 
requirements: \7\
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    \7\ Attached to this compliant are affidavits that attest to the 
issues we have submitted for review.

N.J.S.A. 21:1A-37.F.
N.J.A.C. 12:190-6.5(d)

Federal Law Provides for the Preemption of Non-Federal Requirements 
When Those Non-Federal Requirements Fail Certain Federal Preemption 
Tests

    The HMTA was enacted in 1975 to give the U.S. Department of 
Transportation (DOT) greater authority ``to protect the Nation 
adequately against the risks to life and property which are inherent 
in the transportation of hazardous materials in commerce.'' \8\ By 
vesting primary authority over the transportation of hazardous 
materials in the DOT, Congress intended to ``make possible for the 
first time a comprehensive approach to minimization of the risks 
associated with the movement of valuable but dangerous materials.'' 
\9\ As originally enacted, the HMTA included a preemption provision 
``to preclude a multitude of State and local regulations and the 
potential for varying as well as conflicting regulations in the area 
of hazardous materials transportation.'' \10\ The HMTA preempted 
``any requirement, of a State or political subdivision thereof, 
which is inconsistent with any requirement set forth in [the Act], 
or in a regulation issued under [the Act].'' \11\ This preemption 
provision was implemented through an administrative process where 
DOT would issue ``inconsistency rulings'' as to,
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    \8\ P.L. 93-633 Sec. 102.
    \9\ S. Rept. 1192, 93rd Cong., 2d Sess., 1974, page 2.
    \10\ S. Rept. 1192, 93rd Cong., 2d Sess., 1974, page 37.
    \11\ P.L. 93-633 Sec. 112(a).

[w]hether compliance with both the State or political subdivision 
requirement and the Act or the regulations issued under the Act is 
possible, and [t]he extent to which the State or political 
subdivision requirement is an obstacle to the accomplishment and 
execution of the Act and the regulations issued under the Act.\12\
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    \12\ 41 FR 38171 (September 9, 1976).

These criteria, commonly referred to as the ``dual compliance'' and 
``obstacle'' tests, ``comport with the test for conflicts between 
Federal and State statutes enunciated by the Supreme Court in Hines 
v. Davidowitz, 312 U.S. 52 (1941).'' \13\
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    \13\ 41 FR 38168 (September 9, 1976).
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    In 1990, Congress codified the dual compliance and obstacle 
tests as the general preemption provision of the HMTA.\14\ The 1990 
amendments also expanded on DOT's preemption authorities. Among 
other new authorities, Congress expressly preempted non-federal 
requirements in five covered subject areas if they are not 
``substantively the same'' as federal requirements. One of these 
covered subject areas includes ``[t]he packing, repacking [and] 
handling . . . of hazardous materials.'' \15\
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    \14\ 49 U.S.C. 5125(a).
    \15\ 49 U.S.C. 5125(b)(1)(B).

    ``Substantively the same'' was defined to mean ``conforms in 
every significant respect to the Federal requirement. Editorial and 
other similar de minimis, changes are permitted.'' \16\ These 
preemption authorities are limited only to the extent that non-
federal requirements are ``otherwise authorized'' by federal law. A 
non-federal requirement is not ``otherwise authorized by Federal 
law'' merely because it is not preempted by another federal 
statute.\17\
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    \16\ 49 CFR 107.202(d).
    \17\ Colo. Pub. Util. Comm'n v. Harmon, 951 F. 2d, 1571, 1581 n. 
10. (10th Cir. 1991).
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    The HMR has been promulgated in accordance with the HMTA's 
direction that the Secretary of Transportation ``issue regulations 
for the safe transportation of hazardous material in intrastate, 
interstate, and foreign commerce.'' \18\ ``Transportation'' is 
defined as ``the movement of property and loading, unloading, or 
storage incidental to the movement.'' \19\
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    \18\ 49 U.S.C. 5103(b).
    \19\ 49 U.S.C. 5102(12).
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    Our review of federal law and the HMR leads us to believe that 
the above referenced State requirements, absent further modification 
and/or clarification, are subject to preemption pursuant to 49 
U.S.C. 5125(a)(2) and/or (b)(1)(B). We ask for a determination of 
preemption based on the authority of 49 U.S.C. 5125(d).

Discussion

    The HMR provides that detonators, including blasting caps, may 
be transported by motor vehicle in commerce with Division 1.1, 1.2, 
1.3, 1.4 or 1.5 \20\ materials if the detonators are packaged and 
loaded on the vehicle under prescribed conditions.\21\ No 
restrictions are applied to the transportation of detonators and 
Division 1.6 materials. Because of the State's broad definition of 
``explosive,'' \22\ the State's requirement affects all Class 1 
materials.
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    \20\ Along with Division 1.1, 1.2, 1.3, and 1.4 materials, 49 
CFR 177.835(g) exceptions apply to ``explosives for blasting.'' 
Anything classified as a division 1.5 can be used as an ``explosive 
for blasting.''
    \21\ 49 CFR 177.835(g).
    \22\ N.J.S.A. 21:1A-29 (f).
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    The IME knows of no other state that imposes limitations on 
explosives such as are

[[Page 18426]]

imposed in New Jersey. Consequently, shipments of explosives and 
detonators move in truckload quantities unimpeded in commerce as 
long as they are in compliance with the HMR until they enter or 
leave sites in New Jersey.
    In order to comply with the State's quantity limitations, 
companies have few options. They can load detonators and explosives 
on separate vehicles or they can reconfigure detonator/explosive 
shipments to meet the State's restriction. These options present 
unacceptable safety risks.
    In the first case, unnecessary truck traffic, and traffic 
carrying explosives, is added to the roadways. It has been shown 
that the more trucks on the road, irrespective of the cargo, the 
higher likelihood of an accident. The public along these routes of 
travel, which may include jurisdictions outside of New Jersey, is 
exposed to this relative increased risk.
    In the second case, not only are two or more trucks needed to 
transport the same quantity of explosives that could efficiently be 
carried by one truck, but there is the added risk from the 
unnecessary handling during loading or re-loading to conform 
explosive/detonator shipments to New Jersey's restrictions. In the 
case of Division 1.1, 1.2, and 1.3 materials, the risk from this 
unnecessary handling is shifted to locations outside of the State 
because the HMR prohibit the transfer of these explosive materials 
``from one container to another, or from one motor vehicle to 
another vehicle, or from another vehicle to a motor vehicle, on any 
public highway, street, or road, except in case of emergency.'' \23\ 
New Jersey cannot, for whatever reason, be allowed to isolate itself 
from the risks associated with the commerce of these products.
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    \23\ 49 CFR 177.835(j).
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    We do not contest the authority of the State to regulate the 
movement of explosives that is outside of the scope of the HMTA. In 
short, transportation that is entirely on private property is not 
transportation in commerce within the meaning of the HMTA and is not 
covered by the HMR.\24\ In our disussion with the NJDL over these 
requirements, we have endeavored to see if any accommodation could 
be made to restrict the applicability of the rule to vehicles 
transporting explosives between locations on one site where a public 
way is never entered or crossed. Regrettably, the NJDL said they 
could not interpret the rules that way, and that vehicles would be 
in violation if they carried both explosives and detonators the 
moment they left a public road. While admitting to the folly of a 
rule that would allow vehicles carrying explosives to off-load on a 
public road, rather than in the security of a consignee's site, the 
NJDL pointed to the plain words of the Statute which state that the 
quantity limitation for explosives transported with detonators 
applies to any transportation within the State. Heretofore, we have 
had to contend with the consequences of the State's requirement when 
it applies to commercial transportation at off-highway locations. 
However, we must ask RSPA to consider the ramifications to safety 
and commerce if the State decided to implement its law verbatim.
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    \24\ 49 U.S.C. 5102 (1) and (12).
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    No transportation is risk-free. The packaging and handling 
provisions of the HMR related to explosives are intended to minimize 
the consequences of an incident if it should occur. The HMR have 
been incredibly effective in this regard as they apply to the 
transportation of Class 1 materials. The IME is aware of no 
fatalities occurring when detonators and explosives are transported 
and handled as required. Since 1990, there have been 200 incidents 
involving explosives of which 53 were serious.\25\ None of the 200 
incidents resulted in a fatality. In all, there were 2 injuries that 
required hospitalization. Of the 200 incidents, only one, non-
``serious'' incident occurred in New Jersey and that incident did 
not involve a detonator/explosive shipment, which is the focus of 
this proceeding.
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    \25\ Serious incidents are those that result in one or more of 
the following: death; accident/derailment of vehicle; evacuation of 
six or more individuals; injury requiring hospitalization; or road 
closure.
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Standard of Preemption

    While ``handling'' is not a term defined in the HMTA, RSPA has 
defined this term to mean ``the operation of loading and 
unloading.'' \26\ The State's requirements affect the handling of 
Class 1 materials being transported in commerce because the 
restriction demands loading and unloading activity beyond that 
contemplated in the HMR. Inasmuch as non-federal requirements 
``about any . . . handling . . . of hazardous materials'' that are 
not substantively the same as the HMR are preempted, we ask that 
RSPA preempt these requirements on the basis of 49 U.S.C. 
5125(b)(1)(B). Otherwise, we ask RSPA to preempt these requirements 
on the basis of its obstacle test authority at 49 U.S.C. 5125(a)(2). 
Without doubt, the State's requirements are ``an obstacle to 
accomplishing and carrying out . . . a regulation prescribed under 
[the HMTA],'' and are a detriment to safety.
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    \26\ 49 CFR 176.2. We recognize that this definition is 
contained in that section of the HMR dealing with the carriage of 
hazardous materials by vessel. However, we cannot believe that RSPA 
would define this term inconsistently as it is applied to other 
modes of transportation.
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Conclusion

    We believe the State's requirements imposed on the 
transportation of certain Class 1 materials are preempted by federal 
law. The State is enforcing the above suspect requirements. Despite 
efforts to resolve this matter directly with the State, affected 
parties believe a determination of preemption is the most effective 
way to address this matter. Consequently, we request timely 
consideration of the concerns we have raised.

Certification

    Pursuant to 49 CFR 107.205(a), we hereby certify that a copy of 
this application has been forwarded with an invitation to submit 
comments to: Fred Cohen, Legal Liaison, NJ Department of Labor, P.O. 
Box 110, Trenton, NJ 08625-0110.


      Respectfully submitted,
Cynthia Hilton,
Vice President.

Attachments

(A) N.J.S.A. 21:1A-129(f)--Definition of ``Explosives''
(B) N.J.S.A. 21:1A-130--Enforcement
(C) N.J.S.A. 21:1A-137--Transportation of Explosives
(D) N.J.S.A. 21:1A-140--Violations; Penalties; Revocation of 
Permits; Nonconforming Uses
(E) N.J.A.C. 12:190-6.5--Off Highway Transportation of Explosives
(F) Affidavits of:

    Jack E. Costello, Maurer & Scott, Inc.
    Ronald J. Lutz, Jr., Explo Tech, Inc.
    Richard J. Coons, Energetic Solutions Quarry & Construction 
Services

[FR Doc. 00-8662 Filed 4-6-00; 8:45 am]
BILLING CODE 4910-60-M