Harvison conveys industry concerns on PHMSA transportation definition

May 1, 2005
A FINAL rule published April 15 regarding the definition of hazardous materials transportation in commerce has serious problems for the trucking industry,

A FINAL rule published April 15 regarding the definition of hazardous materials transportation in commerce has serious problems for the trucking industry, says Cliff Harvison, president, National Tank Truck Carriers (NTTC).

“Since this is basically a legal issue, it's difficult to give specific examples of problems — you have to look at the matter on a more global basis,” Harvison says. “This really comes down to the question of where do federal regulations begin with respect to hazardous materials and where do they end?”

On April 15, the Pipeline and Hazardous Materials Safety Administration (PHMSA), successor to the Research and Special Programs Administration (RSPA), published a rule that follows transportation industry appeals to a RSPA rule published October 30, 2003. That rule, and the latest one, seek to clarify transportation definitions, including loading, unloading, and storage of hazardous materials.

Currently, NTTC, with the Chlorine Institute, the American Chemistry Council, and other associations are fighting this decision in court. “Today's ruling by the Department of Transportation does nothing to alleviate our concerns, and I anticipate that the court challenge will continue,” says Harvison. “HM 223 is a very important rulemaking in that it seeks to define the Department of Transportation's (DOT) overall jurisdiction with respect to the transportation of hazardous materials. Unfortunately, in this final rule the regulators continue to try to shrink the scope of their jurisdiction, thus exposing carriers and shippers to conflicting and confusing state and local regulations.”

The transportation industry has learned through experience that if there is a void in the federal regulations, state and local governments will act to fill that void, particularly in the sensitive area of hazardous materials, by passing their own rules. As a result, carriers face the potential of having one set of rules in one state and another set of rules in another state.

“How can you plan for that?” Harvison asked. “How can you train your employees, particularly drivers, in all of the diverse rules that may come down the pike? It is critical to note that these federal regulations preempt all other state and local regulations. This is important to carriers in that they know that what's okay in Texas (for example) is okay in any other state. You can purchase equipment and train your employees according to one rule book.”

The PHMSA final rule (49 CFR Parts 171 and 174) was published in the Federal Register and becomes effective June 1, 2005.

The rule continues the reference to carrier possession or presence at loading and unloading operations in that the carrier possession or presence provides the most accurate, simple, and clear method for establishing the starting and ending points of transportation in commerce.

Issues that have been on the tank truck industry radar screen were addressed. The rule determines that it is not appropriate for the Department of Transportation (DOT) to attempt to clarify the applicability of other federal agencies' statutes or regulations to particular functions or activities. The rule points out that the Occupational Safety and Health Administration (OSHA) frequently consults with PHMSA as to the applicability of the hazmat rule to specific functions and generally defers to DOT on questions related to the transportation of hazardous materials.

However, questions as to the applicability of the Environmental Protection Agency, OSHA, or Bureau of Alcohol, Tobacco, Firearms, and Explosives standards and regulations and suggestions for revising or updating those agencies' standards and regulations should be directed to the appropriate agency office, according to the rule.

The rule clarifies the definition of “storage incidental to movement” and determines that it does not include hazardous materials stored at a shipper's facility prior to a carrier taking possession of the shipment for purposes of transporting it. Thus, as a general rule, storage of a hazardous material after it is loaded into a freight container or transport vehicle and prior to a carrier taking possession of the material is not subject to hazmat rule requirements applicable to storage incidental to movement.

However, loaded vehicles that are stored overnight or for a period of days awaiting pick-up by a carrier are not considered to be stored incidental to movement and, thus, are not subject to the requirements applicable to such storage. Note, however, that loaded vehicles for which applicable pre-transportation functions have been completed and that are awaiting pick-up by a carrier are subject to the regulations applicable to such pre-transportation functions.

This should clarify the status of transloading activities, which were originally defined as both pre-transportation and transportation functions. Transloading is now considered a transportation function.

Hazardous materials loaded into such vehicles must conform to applicable segregation and blocking and bracing requirements. Further, such vehicles must be marked, labeled, and placarded in accordance with hazmat rule requirements, and shipping documentation and emergency response information must conform to applicable rule requirements. Such vehicles may be used by DOT enforcement personnel to identify violations of the hazmat rules with respect to the performance of pre-transportation functions applicable to the shipment.

Subjects addressed by the rule include: hazmat transloading, unloading incidental to movement, security, preemption of state and local regulations, definition of handling, hazmat rule applicability to facilities, hazmat employee training, and transloading versus repackaging.

To see the rule in its entirety in the Federal Register, go to the Internet at access.gpo.gov, scroll to online federal information and click on A-Z resource list, click on “F” and then on Federal Register, then click on year for rule publication, and then click on the publication date.