November 26, 2003

Mr. Samuel G. Bonasso
Acting Administrator
Research and Special Programs Administration
c/o Documents Management System
U.S. Department of Transportation
Room PL 401
400 Seventh St., SW
Washington, DC 20590-0001

Re: Docket No. RSPA-98-4952 (HM-223); "Applicability of the Hazardous Materials Regulations to Loading, Unloading, and Storage" (Final rule; published October 30, 2003 at 68 FR 61906)

Dear Mr. Bonasso:

The Dangerous Goods Advisory Council (DGAC) is an international non-profit association established to promote safe transportation of dangerous goods (known domestically as hazardous materials) by supporting adoption of sound, effective, and uniform safety standards, and providing extensive training programs. DGAC is comprised of 158 large and medium-sized companies engaged in shipping and transporting dangerous goods, associated businesses, and 21 trade associations representing thousands of air, highway, and rail transporters, chemical producers and distributors, and packaging manufacturers.

We hereby appeal the final rule cited above because the changes in the applicability of the regulations to persons who perform functions that will have an effect on the safe transportation of hazardous materials in commerce are inconsistent with the statutory mandate under the Federal Hazardous Materials Law.

Some of our most significant concerns are as follows:

1. The final rule carves out the applicability of the Hazardous Materials Regulations (HMR) in a manner that is contrary to Federal Hazardous Materials Transportation Law (49 U.S.C 5101 et. seq.; (the "Law")). Section 5102 of the Law defines a "hazmat employee" as an ".individual.who during the course of employment .loads, unloads, or handles hazardous material, and defines "transportation" to be ".the movement of property and loading, unloading, or storage incidental to the movement." Nowhere does the Law even suggest that a carrier's possession of hazardous materials is the point at which DOT's regulatory authority attaches. To the contrary, the HMR currently and correctly place great emphasis on the functional responsibilities and actions of hazmat employers and employees. Therefore, we petition RSPA to reconsider the language and content of Section 171.8, and the following paragraphs of the section, to closely reflect the intent of Congress in regard to the applicability of the Law. Otherwise, hazmat employers will be faced with massive confusion trying to determine when their employees are subject to the regulations issued by RSPA or those of other agencies, some of which are twenty-five years or more out-of-date or are in direct conflict with RSPA's regulations. We will provide examples when we supplement this appeal.
    
2. Paragraph (f) of Section 171.1 is a confusing restatement of Section 5125 of the Law. The manner in which this paragraph is written will be misunderstood as granting or encouraging other agency regulatory actions. We acknowledge that there are Federal, state, and local laws and regulations in force that may affect the transportation of hazardous materials. We are concerned that these gratuitous statements in the final rule under HM-223 may be read as encouraging the promulgation of hundreds of constraints and conflicting requirements contrary to the precept that our nation cannot function effectively without a nationally uniform system of transportation regulation. The fact that the preemptive standards are mentioned provides little comfort given their last place in the section. The principle of preemption should be mentioned first and foremost, exactly as it is stated in the Law. We note that RSPA failed to provide a list of past findings under the obstacle test and request that such a list be included in the preemption paragraph of Section 171.8 sufficient to illustrate the kinds of actions considered obstacles in the past. We will provide examples when we supplement this appeal. We note that there are a number of functions mentioned earlier in the rule after "includes the following:"
    
3. The statement of applicability of the HMR under HM-223 is inconsistent with the final rule published under HM-232. The final rule under HM-223 indicates that it is intended to clarify the application of the Hazardous Materials Regulations to specific functions and activities, including loading, unloading and storage of hazardous materials during transportation. Generally speaking, the language of the final rule indicates that the HMR apply to "transportation functions" performed as part of the actual movement of hazardous materials in commerce, and certain "pre-transportation functions," as newly defined. In the preamble to the final rule under HM-223, RSPA clearly rejected arguments that RSPA's jurisdiction should extend to fixed facility operations, other than "pre-transportation" and "transportation functions". This artificial limit to RSPA's jurisdiction, however, is inconsistent with the final rule under HM-232, which requires a "security plan" for any facility that ships a placarded load. HM-232 contains many requirements applicable to facilities that do not fall under the definition of "pre-transportation functions" or "transportation functions." For instance, if a facility is required to have a security plan, that plan must address personnel security and unauthorized access. Under the HM-223 rule, neither of these items falls within RSPA's definitions for "pre-transportation function" or a "transportation function." Consequently, there is an inherent conflict between HM-223 and the requirements of HM-232 and any other requirement in the HMR that cannot be labeled as a "pre-transportation function" or a "transportation function", of which there are many. We would like to reserve the right to expand on this list of HMR requirements that do not fall into HM-223 categories, in a supplemental filing.
    
4. Transport vehicles bearing DOT specification identification markings are instruments of commerce and should remain under the regulatory supervision of DOT at all times they are marked to indicate they meet the DOT specification requirements. Section 5104 of the Law addresses representation and tampering and we are certain it applies to loading, unloading, and storage without regard to whom is physically in possession of such vehicles. As suggested in reports and recommendations of the National Transportation Safety Board, DOT regulators know and fully understand the extent of requirements essential for the safe transportation of hazardous materials, and just as important, they know how to conduct compliance inspections in regard the manufacture, use, and maintenance of such vehicles. No other agency does to the same extent, if at all.
    
5. RSPA rejected commenters' suggestions to incorporate by reference those OSHA and EPA requirements that may be applicable to transportation facilities as a means of ensuring uniformity. In rejecting this suggestion, RSPA argued that Congress specifically authorized states to adopt more stringent regulations for worker and environmental protections. This reading of the OSHA and EPA enabling statutes completely ignores Congress' intent to ensure uniformity in regulations that impact the transportation of hazardous materials. Indeed, a basic tenet of statutory construction is that Congress is presumed to know all of the laws that are on the books and that these laws must be interpreted consistently. RSPA's interpretation in the preamble of HM-223 gives preeminence to OSHA and EPA regulations at the expense of hazardous materials regulatory uniformity as required under the federal Hazardous Materials Law. The way to give effect to all of the enabling statutes (EPA, OSHA and DOT) is to recognize, for example, that state OSHA regulations apply to workers in many different industries, many of which are unrelated to transportation. These regulations may be more stringent in any given state; however, where they apply to transportation functions they must remain consistent with the hazardous materials regulations. Under this statutory construction scheme, OSHA's regulations applicable to construction workers may vary from state-to-state; however, those regulations as applied to transportation workers must be uniform and not conflict with the hazardous materials regulations. In this manner, both statutes may be read consistently as intended by Congress. RSPA's HM-223 preamble erroneously accords OSHA regulations preeminence over the hazardous materials regulations that are designed to foster efficient interstate transportation through uniform regulations.

While we have endeavored to raise all of the issues of concern within the regulatory appeal period in sufficient detail, we respectfully request an additional 90 days to supplement this appeal and raise other related arguments. For example, the preamble does not claim transportation safety or security will be enhanced by the rule. The preamble also states that no new costs will be imposed on industry and, in fact, that costs may be reduced. We have not as yet had the opportunity to review the regulatory evaluation upon which these claims are based. As you can appreciate, HM-223 is a very complex rulemaking (we note that this rule was first announced in an Advanced Notice of Proposed Rulemaking in 1994) and the ramifications upon the regulated community are still being discussed. Indeed, all of the ramifications may not be apparent for some time. We appreciate the statements advising that we will be permitted to revise and extend our comments on this important matter over the next 90 days.

Sincerely,

Michael Morrissette
Vice President