Defining the "T" in DOT

By Staff -- Logistics Management, 3/1/1999

Over the past several months, legislators and regulators have been tussling with the definition of the word "transportation" as it affects various federal agency jurisdictions. Several federal agencies exercise jurisdiction over hazardous materials. The Occupational Safety and Health Administration (OSHA), for example, governs hazardous materials as they affect health and safety in the workplace. The Environmental Protection Agency (EPA) exercises jurisdiction over accidental releases of hazardous materials. The Department of Transportation (DOT), meanwhile, regulates transportation of hazardous materials.

State and local governments may issue stricter regulations that exceed EPA and OSHA rules for fixed facilities. But because DOT is charged with harmonizing domestic and international transportation, Congress gave the transportation agency the authority to pre-empt state and local regulations. If, however, DOT does not exercise jurisdiction over a specific transportation function, either OSHA or EPA may step in and issue regulations. If no federal agency issues regulations, then state and local governments may issue their own regulations without fear of pre-emption.

On July 29, 1996, DOT published Docket HM-223, which declared the agency's intention to examine the definition of "transportation" as it applies to peripheral activities, including loading, unloading, and storage. Since that time, public meetings have been held and comments have been submitted by interested parties. It appears that the regulated industry wants to retain DOT's jurisdiction over all transportation-related activities and to amend the regulations to include those areas not currently within the agency's jurisdiction.

Many commentors suggest that if DOT were to declare certain activities as being outside its jurisdiction, state and local governments might jump in and create confusing and conflicting regulations that were not subject to pre-emptive rule. State and local governments that were represented at DOT's public-outreach meetings appeared to favor stepping in with their own versions of regulations.

As Congress prepares to conduct hearings on reauthorization of the Hazardous Materials Transportation Act (HMTA), the jurisdictional issue has surfaced anew. Once again most industry representatives want the HMTA to require that DOT exercise jurisdiction over all transportation-related functions, including the preparation, offering, loading, unloading, carriage, and storage incidental to transportation. To achieve that goal, DOT may need to draft some new regulations that statutorily exclude OSHA and EPA. In addition, it is critical that DOT retain its pre-emptive authority in these areas if the agency is to prevent conflicting local restrictions from negatively affecting safety.

It seems strange that this debate is even taking place, given that the vast majority of DOT's transportation regulations in Title 49 CFR apply to the preparation, packaging, documenting, and hazard-communication duties applicable to shippers, not the transportation function. Even though DOT prescribes some carrier regulations applicable to carriage of hazardous materials by all modes, jurisdiction over loading, unloading, and storage incidental to transportation is left unaddressed in most circumstances.

Shippers and carriers are waiting to see if the secretary of transportation in the next publication of Docket HM-223 will exercise jurisdiction over all transportation-related functions or if he will allow such authority to be assumed by others. The hearings in Congress undoubtedly will become heated if DOT and industry fail to reach agreement on the jurisdictional issue.

John V. Currie has taught hundreds of college courses, industry training programs, and public seminars on hazardous-materials transportation management and regulatory compliance. His firm, Currie Associates Inc., provides safety and compliance audits, consulting services, customized training manuals, and public and in-house seminars. He may be contacted at 1118 Bay Road, Lake George, NY 12845. Phone: (518) 761-0668. Fax: (518) 792-7781. E-mail: currie@netheaven.com.