The Research and Special Programs Administration has proposed some new definitions to clarify its jurisdiction over hazardous materials transportation.

The agency, which is part of the U.S. Department of Transportation, has proposed that “transportation in commerce,” as it pertains to federal Hazardous Materials Regulations, apply to a carrier’s possession of a hazardous material from pickup through delivery to the consignee or destination. That would include loading and unloading by drivers and other carrier personnel as well as storage in transit.
For private carriers, transportation in commerce would begin when a driver takes possession of a hazardous material and continue until he relinquishes possession at the final destination and is no longer responsible for performing functions subject to hazmat rules.
Another new term, “pre-transportation function” would cover activities performed by shippers prior to transportation of a hazardous material, such as packaging, marking and preparation of the shipping papers.
The proposal is intended to reduce confusion among federal, state and local agencies concerning the extent of RSPA’s jurisdiction -- particularly regarding the loading, unloading and storage of hazardous materials.
The agency noted that preemption provisions of federal hazmat law generally preclude state, local and tribal governments from setting rules that differ from federal regulations. Obviously, however, those jurisdictions can establish rules where federal regulations don’t apply. For instance, hazardous materials not being transported in commerce (under the new definition) could be subject to community right-to-know, fire protection and worker protection laws as well as building codes and zoning requirements.
RSPA acknowledged that another federal safety agency, the Occupational Safety and Health Administration, does have concurrent authority. But in the case of pre-transportation functions, hazmat rules apply to functions being performed while OSHA rules apply to the working conditions of the employees performing the function. Regarding transportation in commerce, RSPA noted that DOT had developed a “special expertise that makes it uniquely qualified to play the primary federal regulatory role in the protection of workers who operate motor vehicles, trains, aircraft and vessels used to transport hazardous materials.” Furthermore, preemption provisions in federal hazmat law give the agency authority to establish nationally uniform regulations so that carriers aren’t forced to comply with a number of different and possibly inconsistent rules.
DOT currently exercises regulatory authority where the functions in question are intrinsic to the operations of carriers. Thus when a truck driver is loading or unloading the vehicle in conjunction with movement in commerce, those functions would be covered by federal hazmat rules, including rules regarding the driver’s health and safety.
The Environmental Protection Agency also has a hand in regulating hazardous materials and, in some cases, EPA and RSPA share authority. For instance, hazmat motor carriers are generally governed by RSPA, but if there’s a hazmat spill they must follow EPA rules. The proposal also makes clear that certain situations are not “transportation in commerce” or incidental to commerce. For instance, hazardous materials stored at a shipper’s facility prior to possession by the carrier wouldn’t come under federal transportation rules, nor would materials being loaded or unloaded by a person employed by the consignee.
The proposal was published in the June 14 Federal Register, which can be accessed on the Internet at Comments are due Oct. 12.