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

- **operation:** document
- **citation:** 66 FR 32420
- **title:** Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage
- **source type:** rulemaking
- **agency:** Research and Special Programs Administration
- **status:** proposed
- **official:** true
- **published on:** 2001-06-14
- **effective on:** Not available
- **summary:** RSPA is proposing to clarify the applicability of the Hazardous Materials Regulations (HMR) to specific functions and activities, including hazardous materials loading and unloading operations and storage of hazardous materials during transportation. We propose to list in the HMR pre-transportation and transportation functions to which the HMR apply. Pre-transportation functions are functions performed to prepare hazardous materials for movement in commerce by persons who offer a hazardous material for transportation or cause a hazardous material to be transported. Transportation functions are functions performed as part of the actual movement of hazardous materials in commerce, including loading, unloading, and storage of hazardous materials that is incidental to their movement. We propose to clarify that "transportation in commerce," for purposes of applicability of the HMR, begins when a carrier takes possession of a hazardous material and continues until the carrier delivers the package containing the hazardous material to its destination as indicated on shipping papers.
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- **source url:** https://www.federalregister.gov/documents/2001/06/14/01-14385/applicability-of-the-hazardous-materials-regulations-to-loading-unloading-and-storage
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Federal Register, Volume 66 Issue 115 (Thursday, June 14, 2001) [Federal Register Volume 66, Number 115 (Thursday, June 14, 2001)] [Proposed Rules] [Pages 32420-32449] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 01-14385] [[Page 32419]] ----------------------------------------------------------------------- Part II Department of Transportation ----------------------------------------------------------------------- Research and Special Programs Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 173, 174, 175, etc. Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage; Proposed Rule Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Proposed Rules [[Page 32420]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Parts 171, 173, 174, 175, 176, 177, and 178 [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 (RSPA), DOT. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: RSPA is proposing to clarify the applicability of the Hazardous Materials Regulations (HMR) to specific functions and activities, including hazardous materials loading and unloading operations and storage of hazardous materials during transportation. We propose to list in the HMR pre-transportation and transportation functions to which the HMR apply. Pre-transportation functions are functions performed to prepare hazardous materials for movement in commerce by persons who offer a hazardous material for transportation or cause a hazardous material to be transported. Transportation functions are functions performed as part of the actual movement of hazardous materials in commerce, including loading, unloading, and storage of hazardous materials that is incidental to their movement. We propose to clarify that ``transportation in commerce,'' for purposes of applicability of the HMR, begins when a carrier takes possession of a hazardous material and continues until the carrier delivers the package containing the hazardous material to its destination as indicated on shipping papers. DATES: Comments. Submit comments by October 12, 2001. To the extent possible, we will consider comments received after this date in making our decision on a final rule. ADDRESSES: Written comments. Submit comments to the Dockets Management System, U.S. Department of Transportation, Room PL 401, 400 Seventh Street, SW., Washington, DC 20590-0001. Comments should identify Docket Number RSPA-98-4952 (HM-223) 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 by accessing the Dockets Management System web site at ``http://dms.dot.gov/'' and following the instructions for submitting a document electronically. 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 a.m. and 5 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: List of Topics I. Background II. Summary of Issues III. Analysis of Comments A. Agency Interpretation of Authorizing Statute B. Bulk versus Non-Bulk Issues C. Preemption D. Pre-transportation Activities and Specification Packagings E. ``Transportation in Commerce'' F. OSHA and EPA Regulations IV. Proposal A. Packaging Specifications B. Pre-Transportation Functions C. Transportation that is ``in Commerce'' D. Transportation Functions Subject to the HMR E. State/Local Requirements and Preemption F. OSHA Programs and Regulations G. EPA Programs and Regulations V. Section-by-Section Review VI. Regulatory Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Executive Order 13132 C. Executive Order 13084 D. Regulatory Flexibility Act E. Paperwork Reduction Act F. Regulation Identifier Number (RIN) G. Unfunded Mandates Reform Act H. Environmental Assessment I. Background The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) are promulgated under the mandate 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.'' Section 5103(b)(1)(B) provides that the HMR ``shall govern safety aspects of the transportation of hazardous material the Secretary considers appropriate.'' ``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 and 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). Neither the statute nor the HMR defines the terms ``loading incidental to movement,'' ``unloading incidental to movement,'' or ``storage incidental to movement.'' The legislative history of the statute does not clarify this matter. The Research and Special Programs Administration (RSPA, we) has 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, are subject to regulation under the HMR. Loading, unloading, and storage of hazardous materials are areas of particular confusion and concern. On July 29, 1996, we published an advance notice of proposed rulemaking (ANPRM) seeking comments on the applicability of the HMR to loading, unloading, and storage of hazardous materials (61 FR 39522). 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. 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 more than 70 written comments. On April 27, 1999, we published a supplemental ANPRM (64 FR 22718), highlighting comments received in response to the 1996 ANPRM and requesting additional information. In particular, the supplemental ANPRM discussed the three approaches most commonly suggested by commenters to the 1996 ANPRM for applying the HMR to hazardous materials loading, unloading, and storage operations and asked a number of questions focused on the details of each approach. We [[Page 32421]] received more than 60 comments in response to the supplemental ANPRM. In addition to the above referenced comments, the docket for this rulemaking also includes over 40 comments originally submitted under Docket HM-212. On March 27, 2000, we withdrew the NPRM issued under Docket HM-212 that addressed cargo tank loading and tank car unloading requirements (65 FR 16161). At the same time, we announced that tank car unloading issues would be addressed as part of Docket No. RSPA-98- 4952 (HM-223) and comments submitted to Docket HM-212 would be added to this docket. The docket for this rulemaking also includes 84 comments and docket submissions related to a request for a preemption determination applicable to certain California and Los Angeles County requirements for handling and transportation of hazardous materials (Docket Nos. PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R); February 15, 1995; 60 FR 8773). The preemption determination addressed state and county requirements for rail car storage and unloading of hazardous materials on consignee property. II. Summary of Issues Federal hazardous materials transportation law (federal hazmat law), codified at 49 U.S.C. 5101 et seq., authorizes the Secretary of Transportation to establish regulations for the safe transportation of hazardous materials in intrastate, interstate, and foreign commerce. The regulations apply to persons who: (1) Transport hazardous materials in commerce; (2) cause hazardous materials to be transported in commerce; or (3) manufacture, mark, maintain, recondition, repair, or test packagings or containers (or components thereof) that are represented, marked, certified, or sold as qualified for use in the transportation of hazardous materials in commerce. 49 U.S.C. 5103(b)(1)(A). The regulations govern any safety aspect of hazardous materials transportation that the Secretary considers appropriate. 49 U.S.C. 5103(b)(1)(B). As noted above, the law defines ``transportation'' to mean ``the movement of property and loading, unloading, or storage incidental to the movement.'' 49 U.S.C. 5102(12). Nevertheless, Congress does not define with specificity the particular activities that fall within the terms ``loading,'' ``unloading,'' and ``storage'' used in the statutory definition of ``transportation.'' It is clear that federal hazmat law directs the Secretary of Transportation to address the safety of hazardous materials transportation, that is, the actual movement of hazardous materials in commerce and the activities related to that movement that are performed by persons who transport hazardous materials in commerce. At the same time, federal hazmat law recognizes the critical safety impact of activities performed in advance of transportation by persons who cause the transportation of hazardous materials in commerce or by persons who manufacture and maintain containers that are represented or sold as qualified for use for such transportation. In conformance with federal hazmat law, the HMR currently impose regulatory requirements on persons who: (1) Perform functions in advance of transportation to prepare hazardous materials for transportation; (2) perform transportation (i.e., movement and incidental loading, unloading, and storage) functions, or (3) manufacture or maintain containers that are represented or sold as qualified for use for transportation of hazardous materials in commerce. Functions performed in advance of transportation to prepare hazardous materials for transportation--``pre-transportation functions''--include determining the hazard class of a material, preparing a shipping paper, providing emergency response information, selecting an appropriate packaging, filling a packaging, marking and labeling a package, and placarding a transport vehicle. ``Transportation functions'' include the movement of a hazardous material by rail car, motor vehicle, aircraft, or vessel and certain aspects of loading, unloading, and storage operations that are ``incidental'' to such movement. Under the HMR, training requirements apply to persons who perform pre-transportation and transportation functions and to persons who manufacture or maintain packagings certified or sold as qualified for use in transportation in commerce. There is confusion in the regulated community and among federal, state, and local agencies with hazardous materials safety responsibilities concerning whether and to what extent the HMR apply to particular operations and activities related to the transportation of hazardous materials in commerce. The most obvious area of confusion was identified in the 1996 and 1999 ANPRMs--which loading, unloading, and storage activities are incidental to the movement of hazardous materials in commerce and therefore subject to the HMR. In addition, there is uncertainty concerning the extent to which state and local agencies may regulate hazardous materials safety, particularly at fixed facilities where the lines between pre-transportation, transportation, and non-transportation operations are not clearly articulated. Although the interpretations and administrative determinations we have issued are publicly available, the regulated industry, government agencies, and Indian tribes have not been consistently aware of their existence and availability. Further, some of the interpretations and decisions we have issued need to be revised in light of changes in the Secretary of Transportation's and other federal agencies' statutory authority. In this rulemaking, we intend to consolidate, clarify, and revise, as necessary, these interpretations and administrative decisions and make them part of the HMR. In developing this rulemaking, we have four goals. First, we want to maintain nationally uniform standards applicable to pre- transportation functions. Second, we want to maintain nationally uniform standards applicable to transportation functions. Third, we want to distinguish functions that are subject to the HMR from functions that are not subject to the HMR. Finally, we want to clarify that facilities with functions subject to the HMR may also be subject to federal, state, or local regulations governing occupational safety and health or environmental protection. To achieve these goals, in this NPRM we propose a list of specific functions to which the HMR apply and we identify the types of persons or entities responsible for compliance with the HMR. In addition, we propose to include in the HMR an indication that facilities at which functions regulated by the HMR occur may also be subject to applicable standards and regulations of other federal agencies. We also propose to include in the HMR the statutory criteria under which non-federal governments may be precluded from regulating in certain areas under the preemption provisions of federal hazmat law. III. Analysis of Comments The 1999 supplemental ANPRM discussed in detail the comments we received in response to our 1996 ANPRM on this issue. There was no consensus position among commenters to the 1996 ANPRM as to how the HMR should apply to hazardous materials loading, unloading, and storage operations. Commenters generally stated that activities performed in advance of transportation in commerce to prepare hazardous materials for transportation should be under the exclusive regulatory jurisdiction of the Secretary of Transportation. Commenters further stated that activities related to the [[Page 32422]] development of specifications for packagings authorized for transportation of hazardous materials, including all testing, retesting, reconditioning, and reuse requirements, should be subject to the Secretary's exclusive regulatory jurisdiction. Similarly, commenters generally stated that the Secretary of Transportation should have exclusive regulatory jurisdiction over the movement of hazardous materials in commerce. However, there was no consensus from commenters as to which loading, unloading, and storage activities are incidental to the movement of hazardous materials in commerce and, therefore, subject to regulation under federal hazmat law and the HMR. Commenters to the 1996 ANRPM generally supported one of three different approaches for defining the transportation functions that fall under the HMR. Many commenters representing hazardous materials manufacturers, shippers, and transporters suggested that ``transportation in commerce'' begins with an intent to ship a hazardous material and that transportation functions subject to HMR requirements should therefore include all activities related to the handling and storage of such a hazardous material. Other commenters, primarily representing state and local government environmental protection agencies, suggested that ``transportation in commerce'' does not begin until a hazardous material is moving on public roads or rights-of-way and that only activities involving such movement should be subject to the requirements in the HMR. Still other commenters, representing a mix of industry, labor, and state governments, suggested that ``transportation in commerce'' begins when a carrier accepts a hazardous material for transportation and that transportation functions subject to HMR requirements should thus include only carrier activities related to transportation of the hazardous material. Most commenters to the 1999 supplemental ANPRM offer amplifications and clarifications of positions and recommendations submitted in response to the 1996 ANPRM. As with the comments to the 1996 ANPRM, commenters emphasize that the HMR should apply to functions performed in advance of transportation in commerce to prepare a hazardous material for transportation. However, commenters have fundamental disagreements as to the specific activities that fall under the term ``transportation in commerce'' and whether and to what extent the HMR should apply to specific activities. A. Agency Interpretation of Authorizing Statute Several commenters assert that ``DOT cannot administratively determine its own jurisdiction. Jurisdiction, for scope of the regulations, is determined by Congress, not the agency * * *'' (FMC Corporation) These commenters suggest that ``each Federal agency's jurisdiction is determined based upon the intent of Congress when it passes statutes for that agency to implement. It seems to be unusual for a Federal agency to seek input from the general public about what its jurisdiction should be * * *'' (HM-223 Working Group, an ad hoc organization representing a number of hazardous materials shippers and carriers) For these commenters, the definition set forth in the law is sufficient to determine the extent of the Secretary of Transportation's jurisdiction over hazardous materials transportation. ``The law makes abundantly clear that DOT's jurisdiction applies to loading, unloading, and storage incidental to transportation activities.'' (HM-223 Working Group) Courts have recognized that where a definitional issue is not squarely addressed by the plain words of a statute or its legislative history, the agency administering the statute may exercise its judgment as to the best means of carrying out the act. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). See also Morton V. Ruiz, 415 U.S. 199, 231 (1974) (``The power of an administrative agency to administer a congressionally created * * * program necessarily requires the formulation of policy and the making of rules to fill in any gap left, implicitly or explicitly, by Congress.''). Courts give considerable weight to executive department construction of a statutory scheme it is entrusted to administer--unless the construction is directly contrary to clear congressional intent. Chevron at 843, 844. See also INS v. Jong Ha Wang, 450 U.S. 139 (1981). In ascertaining the best means of carrying out its statutory authority, it is not unusual for an agency to use the rulemaking process to solicit ideas from the public. In fact, the Court in Chevron recognized that an agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Chevron at 863, 864. Congress gave the Secretary authority to apply the HMR to the safety aspects of hazardous materials transportation the Secretary considers appropriate. 49 U.S.C. 5103(b)(1)(B). Through this rulemaking, we are asking for public input regarding the wisdom of extending, narrowing, or simply clarifying where the HMR apply. In this instance, federal hazmat law defines transportation as the ``movement of property and loading, unloading, or storage incidental to the movement.'' Neither the statute nor its legislative history define which loading, unloading or storage activities or functions are ``incidental'' to the movement of hazardous materials in commerce. Consequently, as discussed earlier, RSPA has issued numerous interpretations, inconsistency rulings, and preemption determinations in response to public requests for clarification regarding the meaning of ``transportation in commerce'' and whether particular activities are covered by that term and, as such, covered by the HMR. The lack of clarity in RSPA's statute and the HMR regarding this issue, as well as changes in the Secretary of Transportation's and other federal agencies' statutory authorities, make it necessary for RSPA to reevaluate and codify its position regarding which loading, unloading, and storage activities and functions fall within the term ``transportation'' as set forth in federal hazmat law. B. Bulk Versus Non-Bulk Issues Several commenters recommend that we focus this rulemaking on bulk transportation issues only. ``We strongly encourage the agency to separate bulk handling questions in this rulemaking from those involving the handling of non-bulk and intermediate bulk packages * * * [I]t is our view that the vast majority of interest shown by nonfederal and other federal agencies has been in the handling of bulk loads, primarily in temporary storage and during unloading of tank cars and cargo tanks. Here is where the greater risk is perceived * * * In addition * * * here is where the DOT requirements are perceived as lacking sufficient detail.'' (The Conference on Safe Transportation of Hazardous Articles, Inc.) Another commenter states, ``During the 1996 meetings and comments, virtually all concerns expressed by non-federal and other federal agencies focused on bulk transportation, and almost all of this concern was concentrated on the highway and rail modes * * * [W]e recommend that DOT take a phased approach and, in its initial decisions regarding this docket, address only bulk transport by rail and highway.'' (FMC Corporation) While it is true that the initial ANPRM published in 1996 was [[Page 32423]] prompted primarily by concerns related to loading, unloading, and storage of hazardous materials in rail tank cars and, to a lesser extent, cargo tanks, we do not agree that this rulemaking should be limited to issues related to bulk transportation of hazardous materials. Our goal is to articulate a statement of the applicability of the HMR that will apply across all modes of transportation and to all types of packagings. The answer to the question of when the regulation of transportation under the HMR begins and ends should be the same for all hazardous materials shipments. C. Preemption Congress enacted the Hazardous Materials Transportation Act (HMTA) in 1975 to give the Secretary of Transportation 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.'' A statutory provision for federal preemption was central to the HMTA. In 1974, 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). More recently, a Federal Court of Appeals found that uniformity was the ``linchpin'' in the design of the HMTA, including the 1990 amendments that expanded the preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991). The 1990 amendments to the HMTA codified the ``dual compliance'' and ``obstacle'' criteria that RSPA applied in issuing inconsistency rulings before 1990. As now set forth in 49 U.S.C. 5125(a), these criteria provide that, in the absence of a waiver of preemption by the Secretary under 49 U.S.C. 5125(e) or unless it is authorized by another federal law, a requirement of a state, political subdivision of a state, or Indian tribe is explicitly preempted if: (1) Complying with a requirement of the state, political subdivision or Indian tribe and a requirement of this chapter or a regulation issued under this chapter is not possible; or (2) The requirement of the state, political subdivision, or Indian tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter or a regulation prescribed under this chapter. In the 1990 amendments to the HMTA, Congress also added additional preemption provisions on certain ``covered subject'' areas and with regard to fees imposed by a state, political subdivision, or Indian tribe on the transportation of hazardous material. The covered subject areas are: (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 packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material. 49 U.S.C. 5125(b). Unless it is authorized by another federal law or a waiver of preemption from the Secretary of Transportation, a non-federal requirement in any of these areas is preempted when it is not ``substantively the same'' as federal hazmat law or a regulation issued under it. 49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to mean ``conforms in every significant respect to the federal requirement. Editorial and other similar de minimis changes are permitted.'' 49 CFR 107.202(d). Industry commenters to the two ANPRMs published under this docket state that ``national uniformity of hazardous materials regulations is critical'' (American Forest and Paper Association) and support a broad application of the federal hazmat law's preemption provisions. ``DOT should continue to preempt non-federal requirements when they frustrate the safe and efficient transportation of hazardous materials.'' (Association of Waste Hazardous Materials Transporters) ``DOT is the only agency with a legislative mandate to be the preeminent authority [for all transportation activities that impact the safe movement of hazardous materials]. This mandate must guarantee that the safe transportation of hazardous materials will take place without being encumbered by any local, state, or federal regulations that would interfere with such transportation.'' (CF Industries) Further, DOT should ``[d]evelop instructive guidelines on preemption that track the functions of a hazmat employee. DOT is the only agency with Federal preemption authority over state and local regulations and without it, shippers and carriers alike would be required to comply with many differing and often conflicting state and local regulations that would cause confusing and burdensome regulatory schemes.'' (FMC Corporation) Indeed, ``DOT's failure to assert jurisdiction [with regard to loading and unloading of bulk containers] invite[s] state and local agencies to promulgate their own regulations for the loading, unloading, and incidental activities related to the transportation of hazardous materials in contravention of the statutory preemption provisions of [federal hazmat law] * * * Such an invitation is contrary to the goal of providing uniform national regulations for the safe and efficient transportation of hazardous materials.'' (National Paint and Coatings Association) State and local government agency commenters to the two ANPRMs have a different view of the preemption provisions of federal hazmat law. Several of these commenters believe that ``it is imperative that the HMR not preempt * * * necessary [state or local] regulations, rather the HMR should establish a minimum standard.'' (New Jersey Department of Environmental Protection) Other commenters suggest that ``it is important to distinguish between state standards that are an obstacle to compliance with HMR and state standards that fill gaps in HMR without being an obstacle to compliance.'' (California Department of Toxic Substances Control) Moreover, ``the HMR should at the very least defer to state and local control. RSPA should respect the rights of local control. Furthermore, this local control should not be subject to preemption petitions. Local citizens mandate the involvement of state and local regulatory agencies.'' (Maine Department of Environmental Protection) ``DOT should not preempt federal, state, or local authorities unless it is clearly authorized to do so and provides for protections at least as stringent as those deemed necessary by federal, state, and local authorities * * * [G]reat deference should be shown to other federal, state, and local authorities by DOT, especially regarding measures designed to protect health, safety, and the environment. Finally, even where preemption is clearly called for and authorized, we would urge that other authorities be allowed to address special, unique local circumstances and conditions.'' (Northeast Waste Management Officials' Association) As we have stated, one of the goals of this rulemaking is to assure nationally uniform standards applicable to [[Page 32424]] functions related to preparation for and the actual movement of hazardous materials in commerce. We agree with industry commenters that the preemption provisions of federal hazmat law are critical to achievement of this goal. However, we also agree with state and local government commenters that state and local governments have a legitimate role in the regulation of hazardous materials at fixed facilities and that this role should be accommodated to the extent possible within the context of a nationally uniform hazardous materials transportation safety regulatory program. D. Pre-Transportation Activities and Specification Packagings Most commenters to both the 1996 and the 1999 ANPRMs state that activities performed in advance of transportation to prepare a shipment of hazardous materials for transportation in commerce should be subject to exclusive federal regulation under the HMR. Such activities include determining the hazard class of a material, preparing shipping papers, selecting appropriate packaging, marking and labeling the package, and placarding the transport vehicle. Similarly, commenters state that activities related to the specifications for packagings authorized for transportation of hazardous materials in commerce, including all testing, retesting, reconditioning, and reuse requirements, should be subject exclusively to the HMR. E. ``Transportation in Commerce'' Commenters to the supplemental ANPRM generally indicate that the major issue for this rulemaking is how the term ``transportation in commerce'' is applied for purposes of regulation under the HMR. Thus, commenters addressed questions related to this definition in considerable detail. Offeror intent. Commenters who support a broad application of the term ``transportation in commerce'' to include all activities related to the handling and storage of a hazardous material that is intended for shipment generally state that such a broad application is necessary to assure national uniformity of regulations applicable to the transportation of hazardous materials. One commenter states that, absent national uniformity, ``shippers and carriers would be required to comply with a myriad of different and often conflicting state and local regulations that would substantially burden the free flow of goods in * * * commerce, and cause potentially conflicting and confusing regulatory schemes.'' (HM-223 Working Group) Another suggests that ``[a]llowing multiple agencies to regulate various aspects of hazmat transportation (a) unduly burdens interstate commerce, (b) increases the risk to public safety, (c) increases costs to transporters, shippers, consignees, and ultimately consumers, and (d) creates excessive administrative burdens.'' (American Trucking Associations) For these commenters, transportation in commerce is a continuum that begins with an intention to ship a hazardous material and ends when that hazardous material is unloaded at its ultimate destination. Included on this continuum are all activities related to preparation of the hazardous material for shipment; loading of the hazardous material into a packaging or container authorized for transportation by the HMR; storage of the package at the offeror's facility prior to its acceptance by a carrier; intra-facility movements of the package; movement of the package by rail car, motor vehicle, aircraft, or vessel to its ultimate destination; storage of the package at any point prior to its delivery; storage of the package at the facility that is its ultimate destination; intra-facility movements of the package at its ultimate destination; and unloading of the hazardous material at its ultimate destination. To assure national uniformity, these commenters believe that all of the above activities should be under the exclusive regulatory authority of the HMR. We disagree. This approach significantly expands the scope of the HMR as currently applied to activities that arguably are not part of ``transportation'' as that term is commonly understood. Specifically, some activities to which these commenters suggest that the HMR should apply are neither pre-transportation activities performed to prepare hazardous materials for transportation in commerce nor transportation activities that involve the actual movement of hazardous materials in commerce. For example, storage of a hazardous material at an offeror facility is not a pre-transportation activity conducted to prepare the hazardous material for transportation in commerce. Similarly, storage of a hazardous material at a consignee facility after delivery by a carrier but before the hazardous material is removed from a package is not movement of that material in commerce since movement in commerce is complete. If we apply the HMR broadly as suggested by some commenters, this ``offeror intent'' approach would have the effect of limiting and, perhaps, precluding regulation of hazardous materials at fixed facilities by state and local governments and could affect other federal programs, as well. Federal, state, and local programs for environmental protection, worker protection, community right-to-know, fire protection, building codes, and zoning could be adversely affected by extending the Secretary of Transportation's regulatory authority to an expanded set of hazardous materials activities at fixed facilities. For example, one commenter opposed to this approach suggests that, if implemented, ``this option would essentially remove all hazardous waste storage and generator facilities from having to comply with [Resource Conservation and Recovery Act] storage and accumulation requirements, allowing unlimited storage in areas [that] might not have secondary containment or other release controls, simply because the hazardous waste is packaged in preparation for shipment at some future date.'' (Arkansas Department of Environmental Quality) Further, the ``offeror intent'' approach to clarifying the term ``transportation in commerce'' could result in a regulatory regime that would be very difficult both to comply with and enforce. Commenters who support the ``offeror intent'' approach state that ``intent is a legal standard. While evidence of intent may not be established by direct proof, it can be inferred from facts and circumstances.'' (Association of Waste Hazardous Materials Transporters) Commenters suggest several possible indicia of ``intent'' for compliance and enforcement purposes--placing a hazardous material in an authorized packaging or container, preparing shipping papers, affixing labels to packages, or statements by the offeror. One commenter states that ``[t]he combination of packaging marking and labeling/placarding is a clear indication that the hazardous material is intended for transportation. There would be no reason to go through this step if the product is not intended to be transported. The expense associated with selection of a specification [packaging] is typically greater than non-specification packaging. Materials, not intended for transportation, would not [be placed in] specification packaging for intra-plant transfers.'' (Farmland) We do not agree. An approach to compliance and enforcement that offers no clear standards either for regulated entities or enforcement officials would be highly subjective and would require a case-by-case analysis in almost every instance to [[Page 32425]] determine if a particular hazardous materials package was intended for transportation in commerce and, thus, subject to the requirements of the HMR. For example, as one commenter states, storing a hazardous material ``in a DOT approved container does not always signify intent to transport. Often a 55-gallon drum is an ideal accumulation container for material [that] may or may not be intended for transportation.'' (Pennsylvania Department of Environmental Protection) Another commenter notes that ``[m]any facilities accumulate hazardous materials in `DOT approved' containers, but do not intend to `offer it for transportation' at that time. Additionally, facilities receive hazardous materials in DOT approved packaging.'' (Arkansas Department of Environmental Quality) Further, ``a facility may decide to use DOT specification packaging to protect employees and patients when moving waste from healthcare treatment rooms to on-site storage areas even if disposing of the waste on-site. In addition, a facility may use DOT specification packaging to fulfill the requirements in OSHA's Bloodborne Pathogens Standard in a cost-effective manner regardless of transport.'' (Medical Waste Institute) Using a properly labeled and marked container also assures compliance with OSHA's hazard communication regulations, which require consignees to retain the labels and placards required by the HMR on packages until they have been emptied. Similarly, preparation of shipping papers does not always indicate an imminent intent to transport a hazardous material in commerce. Shipping papers may be prepared well in advance of package preparation or, in the case of multiple shipments of the same material, a single permanent shipping paper may be used for a number of shipments. In the case of hazardous waste shipments, hazardous waste generators may ``complete a hazardous waste manifest (hazardous materials shipping paper) days or weeks prior to a prearranged site pick-up * * * some times without even contacting the transporter.'' (New Jersey Department of Environmental Protection) We do not believe that it is possible to develop an enforceable means of determining the applicability of the HMR to a given shipment based solely on ``intent.'' As a commenter notes, basing this determination on an offeror's intent for the package could result in the following enforcement scenario: (a) If hazardous materials are on a transportation vehicle at a loading dock, but fail to have proper USDOT marking, then the offeror can allege to a USDOT inspector that the materials are not intended for transportation and are no
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