The United States Department of Transportation (USDOT) released its reauthorization proposal on April 29^th. The massive bill, even the brief summary of which is over one hundred pages, will do everything from set priorities for federal highways, to issuing new rules for railroad passenger equipment purchases, to explicating in detail various budget line items for myriad grant programs and educational opportunities. However, of primary interest to the authors is the set of proposed actions which will impact the hazardous materials transport sector, and the list is not without interest. The Hazardous Material Transportation Act (HMTA) was published in 1975. Its primary objective is to provide adequate protection against the risks to life and property inherent in the transportation of hazardous material in commerce by improving the regulatory and enforcement authority of the Secretary of Transportation. The hazardous materials section appears in Title VI, Sections 6001 through 6014, and among other things would, (if authorized as proposed):

• Give the Secretary of Transportation broad authority to order operational controls, restrictions, and prohibitions when they determine that an emergency condition exists. One might wonder why they are proposing this when they already have authority to declare an imminent hazard situation and can take subsequent actions to suspend a company’s or individual’s ability to operate their business. This appears to broaden their authority even further consistent with authority that other agencies such as OSHA, EPA and FDA have currently.   Of particular note is specific language stating that this could be “without opportunity for a hearing.” Granting the DOT such broad authority to act in what they perceive to be (and can so define as) emergency situations, and including language which specifically denies affected parties the opportunity for a hearing over the actions that it takes in such cases, is troubling at best. The 4^th and 6^th Amendments to the Constitution exist for a reason. (See Section 6002)
• Establish similar authority to deal with so-called “abandoned shipments” of hazardous materials. (See Section 6008)
• Expand the registration requirements for person subject to the hazmat training requirements. This is interesting because the agency is not proposing to increase the amount they issue under the Hazardous Materials Emergency Preparedness Grant Program and because they have had to refund registrants previously due to the fact that they collected more than they administered. Additionally it appears that 5108 (a)(2) already authorize PHMSA to expand the registration to a broad range of entities. 5108 states “…2) The Secretary may require any of the following persons to file a registration statement with the Secretary under this subsection:
  • (A) a person transporting or causing to be transported hazardous material in commerce and not required to file a registration statement under paragraph (1) of this subsection.
  • (B) a person designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. (See Section 6003)
• Establish user fees for Special Permits and Approvals. This will certainly receive opposition from industry as has previously been the case. One must wonder how this will impact small businesses that might have to dish out several thousands of dollars to file an application. (See Section 6004)
• Give the Secretary authority to prescribe standards for the movement of hazardous materials into and out of areas in which an emergency has occurred. This was a problem for the agency in the aftermath of Hurricane Katrina and the 9/11 attacks on the World Trade Center and Pentagon because they had to wait for applications and then issue numerous special permits. It would make sense to allow PHMSA to react on their own without waiting for numerous applications from state and local authorities and private companies. (See Section 6006)
• Eliminate the requirement to publish Special Permit notifications in the Federal Register. This was proposed by PHMSA personnel during the Bush administration but the House T&I rejected the proposal. Current technology can provide a more real time notification and tracking of applications for the public. The current process is bureaucratic, unnecessarily burdensome and causes delays in processing applications. Currently if an application is received the day after PHMSA publishes their notification in the Federal Register the agency can’t technically process it until it is published and the 30 day window for comments is over. This delay the process for 60 days or more. Furthermore, PHMSA rarely receives any comments in response to their special permit notices. This is a needed change. (See Section 6007)
• Give the Secretary authority to require non-domestic entities involved in the manufacture, certification, inspection, or compliance of DOT specification packaging or cylinders to pay for the costs associated with the inspections. The agency currently performs inspections, for instance, of foreign cylinder manufacturers and has been doing so for more than 20 years. This proposal appears to provide the agency clearer authority for collecting fees from non-domestic entities under the HM-74 program. (See Section 6009)
• Clarify the administration and eligibility requirements for training grants and related activities under the HMEP Grant program. This was recently changed in MAP-21 by removing the requirement to issue the grants to “employee organizations” (another way of saying unions). It would be useful to have a clear understanding of what the agency specifically has in mind. (See Section 6010)
• Establish new (and substantially higher) civil penalty amounts for violations. This would substantially raise penalties that were recently raised in MAP-21 to $250,000 for a knowingly violation and 500,000 for a violation that results in death, serious illness, or severe injury to any person or substantial destruction of property. (See Section 6011)
• Establish a “General Duty Clause” under which a person involved in transport would be required to “take all reasonable measures and precautions to properly classify, describe, package, mark, and label, and ensure proper condition for transportation of a hazardous material, as well as comply with Federal hazmat law and regulations.” One might question why this is necessary considering that the legislation and Hazardous Materials regulations (HMR) appears to clearly indicate that persons are responsible for properly classifying, describing, marking, labeling, packaging and ensuring that hazardous materials are in proper condition for transportation. For instance one needs only to consider the duties prescribed in 173.22 or 173.24. The agency issued a final rule on July 28, 2005, HM–223A, Applicability of the Hazardous Materials Regulations to a ‘‘Person Who Offers’’ a Hazardous Material for Transportation in Commerce that clarifies an offeror’s responsibility. Additionally, isn’t it sufficient that a shipper is required to sign a statement of the shipping paper certifying compliance? The establishment of a General Duty Clause is troubling. Anyone who has dealt with a similar type of regulation established within other bodies of federal law and exercised by their controlling agencies (for instance, OSHA and the 29 CFR) is aware of the sometimes seemingly capricious nature of the citations that can be issued under them. General duty clauses are by their nature subjective, and rely to a large degree on the experience and attitude of the enforcement official contemplating their application. (See Section 6012)
• Sections 6013 and 6014 deal with funding and reporting requirements for the agency itself.

It is also important to note that at present, this entire reauthorization is only a proposal—not law. Interested parties now have an opportunity to review the issues within and take action accordingly. What finally emerges from the often chaotic process of congressional legislation will almost certainly differ from what is presented here.

Below is a link to the full DOT Summary of the reauthorization proposal:

http://www.dot.gov/grow-america/sectional-analysis

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