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NITL voices concern about HM-223 proposal

IN COMMENTS submitted in early February, the National Industrial Transportation League (NITL) called for significant revisions in a Research and Special Programs Administration (RSPA) proposal to clarify the applicability of the Hazardous Materials Regulations (HMR) to specific activities, including hazmat loading, unloading, and storage during transportation.

On June 14, 2001, RSPA proposed the clarifications in HM-223. The proposed rule sets forth a list of HMR pre-transportation and transportation functions to which the HMR apply. In its proposal, the agency seeks to clarify that “transportation in commerce” for the purposes and 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 the shipping documents.

The NITL's comments made it clear that RSPA's proposal requires substantial revision in light of the Department of Transportation's broad statutory authority over the transportation of hazardous materials; the need for uniform nationwide rules governing the transportation of such materials in the interests of safety; and especially in light of the increased requirements of national security after the tragic events of September 11.

There are important safety considerations underlying this clear policy directive of the Congress, according to NITL. The safe transportation of hazardous materials over the nation's transportation system depends upon the actions of thousands of separate persons, each dealing with separate parts of the transportation system. Safe transportation can only be met if the activities of each of thousands of persons are coordinated through a nationwide, consistent regulatory structure that is transparent to each of them. This can only be accomplished through nationwide federal regulation under DOT, for only in this way can shippers and carriers know what is expected, and only in this way can there be consistent regulatory control.

Failure of DOT to assert its jurisdiction could result in gaps in the regulatory network that would adversely affect the safe transportation of goods, and could open shippers and carriers to multiple and potentially inconsistent regulatory requirements, NITL said. State and local governments, however well-intentioned, are simply not able to prescribe comprehensive, nationwide rules to protect against such threats. The resulting overlapping and inconsistent rules would create uncertainties and gaps that might well be exploited by potential terrorists.

NITL believes that loading by a shipper, not just a carrier, should be covered under the HMR. There is no functional difference between loading activities conducted by a carrier and loading activities conducted by a shipper, and the activity of loading is integral to the transportation of hazardous materials no matter which party — carrier or shipper — does it. The proposed rule flies squarely in the face of modern transportation practice. In fact, as the comments note, under the “Voluntary Guide to Good Business Relations,” endorsed by NITL and the Truckload Carriers Association in 2000, the shipper is generally responsible for loading and unloading, because the shipper is most familiar with the properties of goods being loaded. By making shippers subject to inconsistent regulations by state and local governments, the proposed rule will tend to discourage shipper loading and unloading, potentially increasing the likelihood of unsafe practices in loading and unloading of hazardous materials.

Previously, numerous commenters had urged DOT to assert regulatory power under the concept of the shipper's “intent” to transport hazardous materials. DOT had rejected this approach as unworkable, as “intent” is difficult to establish. NITL offered ideas that would help in this respect.

With respect to commodities transported in bulk, NITL suggested that the actual physical loading by either a carrier or a shipper of the bulk container would provide a clear dividing line for determining the agency's jurisdiction under the HMR. NITL does not believe that bulk containers are loaded by a shipper without the shipper's clear purpose to imminently transport the hazardous material. Thus, NITL believes that the agency can avoid the uncertainties of determining “intent” in the case of bulk transportation by providing for DOT jurisdiction under the HMR to attach when a shipper physically loads a bulk container.

For non-bulk transportation, NITL said that loading by a shipper should fall under DOT jurisdiction as soon as two conditions are met: (a) loading of a hazardous material in a DOT-approved container; and (b) preparation of shipping papers. NITL said that even if DOT is correct that one of these conditions, standing alone, does not necessarily mean that a particular hazmat package is intended for transportation in commerce, the concurrence of these two events is highly likely to occur only when there is a purpose to transport and when actual physical movement is imminent. Alternately, HMR jurisdiction could attach when the non-bulk package is actually loaded onto a vehicle.

Once material is “loaded” under the definitions suggested above, subsequent movement by the shipper or carrier, and tendering the “loaded” container to the carrier should clearly fall within the HMR. This should include intra-facility movements to permit tender of goods to the carrier. Finally, NITL said that there should be no arbitrary time limit for storage incidental to a movement.

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