[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Proposed Rules]
[Pages 15362-15375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8367]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 397
[FHWA Docket No. MC-96-10; FHWA-97-2334]
Recommendations on Uniform Forms and Procedures for the
Transportation of Hazardous Materials
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Supplemental notice of report availability; request for
comments.
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SUMMARY: The FHWA is requesting public comment on the final report and
recommendations of the Alliance for Uniform HazMat Transportation
Procedures (the Alliance) concerning the implementation of a portion of
the former Hazardous Materials Transportation Uniform Safety Act of
1990 (HMTUSA). The statute requires the Secretary of Transportation
(the Secretary) to establish a working group of State and local
government officials to establish uniform forms and procedures for the
registration of persons that transport hazardous materials by motor
vehicle. The working group is required to make recommendations to the
Secretary on whether to limit the filing of State registration and
permit forms and the collection of filing fees to the State in which
the person resides or has its principal place of business. The Alliance
is the working group created to fulfill the requirements of the
statute, and accordingly, published its final report with
recommendations on March 15, 1996.
On July 9, 1996, the FHWA published a notice indicating that the
Alliance's report was available and requesting public comments on the
report (61 FR 36016). After reviewing the comments received in response
to the notice of availability, the FHWA has determined that it should
seek additional public comment before the agency makes a decision on
whether to implement the recommendations of the Alliance.
DATES: Written comments must be received on or before June 29, 1998.
ADDRESSES: Submit written, signed comments to Docket No. FHWA-97-2334,
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street,
SW., Washington, DC 20590-0001. All comments received will be available
for examination at the above address from 10 a.m. to 5 p.m., e.t.,
Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor
Carrier Research and Standards, (202) 366-4009; Mr. James D. McCauley,
Office of Motor Carrier Safety and Technology, (202) 366-9579; or Mr.
Raymond W. Cuprill, Office of Chief Counsel, (202) 366-0834, Federal
Highway Administration, 400 Seventh Street SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
Electronic Bulletin Board Service at (202) 512-1661. Internet users may
reach the Federal Register's home page at: http://www.nara.gov/nara/
fedreg and the Government Printing Office's database at: http://
www.access.gpo.gov/su__docs.
Availability of The Alliance's Report
Electronic Access
The Alliance report has been posted on the Internet. The entire
report may be viewed on the Internet, depending on the software being
used, and/or downloaded. The report is in WordPerfect 6.1 format while
the forms contained in Appendix F of the report are in Graphics
Interchange Format (GIF)--a standard format for digitized images. Users
will need a graphics viewer to see the GIF file.
There are several ways to access the report on the Internet. The
most direct method is as follows: http://www.fhwa.dot.gov/omc/
alliance.html.
Alternatively, the report may be accessed through the FHWA's Office
of Motor Carriers (OMC) home page located at http://www.fhwa.dot.gov/
omc/omchome.html. This site contains general information on the OMC and
its programs as well as links to online Federal Motor Carrier Safety
Regulations and regulatory guidance, and Federal Hazardous Materials
Regulations. When accessing the Alliance report from the OMC home page
select the following hyperlinks:
1. Special Program Areas.
2. Final Report: Uniform Program Pilot Project.
Whichever approach is used, users may scroll through the table of
contents and access the desired section of the report by clicking on
the appropriate heading.
Ordering Copies of the Alliance Report
Copies of the report (``Final Report: Uniform Program Pilot
Project,'' March 15, 1996) may be ordered from the National Governors'
Association (NGA) Publications Center at (301) 498-3738. The NGA
Publications Center will charge a shipping and handling fee for all
orders.
Background
Section 5119 of title 49, United States Code, requires the
Secretary to establish a working group of State and local government
officials to develop recommendations on uniform forms and procedures
that the States can use to register and permit persons that transport,
or cause the transportation of, hazardous materials by motor vehicle.
The working group is also required to make recommendations as to
whether the filing of registration and permit forms, and the collection
of related fees, should be limited to the State in which a person
resides or has its principal place of business. In developing its
recommendations, the group is required to consult with persons who are
subject to these registration and permit requirements. The
recommendations of the working group are to be included in a final
report to the Secretary.1 Finally, section 5119 requires the
issuance of regulations implementing those
[[Page 15363]]
recommendations with which the Secretary agrees.
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\1\ The report is to be also submitted to the Committee on
Commerce, Science, and Transportation of the U.S. Senate, and the
Committee on Public Works and Transportation of the U.S. House of
Representatives.
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Section 5119 was originally enacted as section 22 of the Hazardous
Materials Transportation Uniform Safety Act of 1990 (Pub. L. 101-615,
104 Stat. 3244; November 16, 1990). The HMTUSA amended the Hazardous
Materials Transportation Act of 1974 (HMTA), Pub. L. 93-633, 88 Stat.
2156, which granted regulatory and enforcement authority to the
Secretary to provide adequate protection against the risks to life and
property inherent in the transportation of hazardous materials in
commerce. The HMTA was designed to replace a patchwork of State and
Federal laws and regulations concerning hazardous materials
transportation with a framework of uniform, national regulations. The
HMTA and HMTUSA were repealed by Public Law 103-272 (108 Stat. 745,
1379; July 5, 1994) with the statutory provisions applicable to the
transportation of hazardous materials recodified at 49 U.S.C. 5101 et
seq.
Implementation of Section 5119
Creation of the Alliance for Uniform HazMat Transportation Procedures
In 1991, the NGA and the National Conference of State Legislatures
(NCSL) were awarded a contract to coordinate the staffing and
operations of the working group. The NGA and NCSL presented
recommendations to the Secretary for the establishment of a panel to
carry out the tasks of the working group. The panel was approved by the
Secretary and held its first meeting in January 1992, at which time it
selected the title ``the Alliance for Uniform HazMat Transportation
Procedures'' or ``the Alliance.''
The Alliance authorized the formation of four subgroups to address
specific areas of State hazardous materials transportation regulation.
Industry representatives were invited to participate in the subgroups.
The subgroups were:
1. Shipper and Carrier Registration Subgroup;
2. Shipper and Carrier Permitting and Licensing Subgroup;
3. Operational Issues Subgroup; and,
4. Audit and Enforcement Subgroup.
Each subgroup was asked to examine current State practices,
identify the extent to which State practices are uniform, identify
barriers to uniformity, and make recommendations for criteria on which
a uniform State program would be based.
Pilot Study
In May of 1992, the Alliance proceeded with the design and
implementation of a two-year pilot project. The project was based upon
the following assumptions/recommendations:
1. Base-state system for registration and collection of fees;
2. Reciprocity between states that require permits;
3. Additional information for hazardous waste transporters;
4. Individual state enforcement authority;
5. Participation by localities; and
6. Establishment of a governing board to manage the pilot project.
The FHWA funded a two-year demonstration program for four States.
During the first year, each State would develop the internal
administrative procedures and organization to conduct a test of the
Alliance's recommended program. During the second year, the States
would implement the program for motor carriers involved in the
transportation of hazardous materials.
In November of 1992, the Alliance contacted State hazardous
materials transportation program administrators to solicit
participation in the pilot study. The States of Minnesota, Nevada,
Ohio, and West Virginia were chosen based upon the following criteria
established by the Alliance:
1. The Governor and State legislature were committed to taking the
necessary legislative and administrative actions to conduct the State's
hazardous materials transportation programs under the principles and
operating procedures of the Alliance's recommendations;
2. The regulated community within the State was committed to
supporting participation in the program;
3. The State had experience in the registration and permitting of
hazardous materials, and/or in the transportation of radioactive
materials;
4. The group of States chosen reflected ``geographic diversity;''
5. At least one pilot State had a ``major locality'' with a
hazardous materials transportation registration or permitting program.
Between July 1, 1993, and June 30, 1994, the States completed the
legislative and administrative work necessary to participate in the
pilot study. On July 1, 1994, the pilot States began registering and
permitting motor carriers in accordance with the Alliance's
recommendations. Each participating State was given the opportunity to
select one of the following three options for implementing the
Alliance's Uniform Program:
1. The State could apply the requirements of the Uniform Program to
all motor carriers (interstate and intrastate); or
2. The State could apply the requirements only to domiciled,
interstate motor carriers that operate in two or more of the pilot
States; or,
3. The State could select an even smaller sample of interstate
motor carriers. Minnesota, Ohio, and West Virginia used option one
while Nevada selected option two for the first round of registration
and permitting with the intent of expanding the program to all motor
carriers during the second program year.
The Alliance's Conclusions
On March 15, 1996, the Alliance submitted its final report and
recommendations to the FHWA. The Alliance concluded that the pilot
study met the uniformity mandate of 49 U.S.C. 5119. The report states
that all of the pilot States support the program and believe that other
States should join the program to increase the benefits provided by
this uniform program and to spread the administrative load presented by
multi-state carriers. The report also states that industry participants
support making the program uniform in all States, although the industry
believes that a shorter application form and a simplified formula for
calculating fees should be used. The Alliance's report is available for
review in the docket and may be viewed and downloaded from the
Internet.
Discussion of Comments
The FHWA received 20 comments in response to the July 9, 1996,
notice. The commenters were: The Advocates for Highway and Auto Safety
(the Advocates); the Alliance for Uniform HazMat Transportation
Procedures (the Alliance); the Association of Waste Hazardous Materials
Transporters (the AWHMT); Blair America, Inc.; the Coalition for the
Advancement of Uniform Hazardous Materials Registration and Permit
Forms and Procedures (the Coalition); the Commercial Vehicle Safety
Alliance (the CVSA); Du Pont-Sentinel Transportation Company (Du Pont-
Sentinel); Idaho Department of Law Enforcement, State Police Division
(the Idaho State Police); Institute of Makers of Explosives (the IME);
Iowa Department of Transportation (the Iowa DOT); Michigan Department
of Environmental Quality (the Michigan DEQ); Michigan Department of
State Police (the Michigan State Police); National Customs Brokers and
Forwarders Association of America, Inc. (the NCBFAA); National Fire
Protection
[[Page 15364]]
Association (the NFPA); National Tank Truck Carriers, Inc., (the NTTC);
New Jersey Department of Law and Public Safety, Office of the Attorney
General (the New Jersey Attorney General); Northeast Waste Management
Officials' Association (the NEWMOA); Ohio Public Utilities Commission
(the Ohio PUC); Roadway Express, Inc. (Roadway); and, the Wisconsin
Department of Transportation (the Wisconsin DOT).
Comments in Support of Implementing the Alliance's Recommendations
The FHWA received 12 comments in support of the Alliance's
recommendations. The commenters were: The Alliance, the AWHMT, the
Coalition, the CVSA, Du Pont-Sentinel, the Michigan State Police, the
NCBFAA, the NFPA, the NTTC, the Ohio PUC, Roadway, and the Wisconsin
DOT.
The Alliance discussed its work to develop the Uniform Program and
objected to the manner in which the FHWA presented the information
contained in the July 9, 1996, notice. The Alliance stated:
Overall, we are extremely disappointed that the notice
misrepresents both the purpose of 49 USC 5119 (formerly referred to
as Section 22 of the Hazardous Materials Transportation Uniform
Safety Act of 1990) and the process by which the Alliance arrived at
its recommendations. We are also concerned that the Federal Highway
Administration has exceeded its rulemaking authority under 49 USC
5119 under which ``the Secretary shall issue regulations
implementing those recommendations contained in the report
transmitted to the Secretary (c) with which the Secretary agrees,''
to question the validity of a state hazardous materials program. The
Act does not preempt state hazardous materials programs. It relates
only to uniformity.
Furthermore, by omitting the words ``to the State in which the
person resides or has its principle place of business,'' from the
paraphrasing of Section (a)(2), it suggests that the Secretary can
somehow limit State fees. The Act specifically states that the
Secretary CANNOT limit fees as long as such fees are used to enhance
the safe transportation of hazardous materials by motor carriers.
The language used by the FHWA in the opening summary suggests that
the agency believes it has the authority to determine the value of a
state hazardous materials registration program. We strongly object
to this representation of 49 USC 5119.
When the Alliance working group was created in January, 1991,
thirty-nine states conducted some form of registration and/or
permitting program for motor carrier transportation of hazardous
materials. At its initial meeting, the Alliance stated that its task
was not to reinvent the state programs, but to reconcile the
differences among these existing programs. Furthermore, the act
required the working group to examine the feasibility of a base
state system.
The recommendations contained in the final report submitted by
the Alliance accomplish both of these objectives. The findings and
recommendations represent two years of hearings and deliberations as
well as two years of field testing. Over this four year period the
Alliance working group and the Governing Board conducted 24 open
meetings in which they heard and considered both state and industry
concerns. We recognize that no state or industry association got
everything that it wanted out of the Alliance deliberations. That
was to be expected. To their credit, many states and many industry
representatives supported compromises on very controversial issues
that moved the process forward. The Alliance has heard and
deliberated on every suggestion brought to its attention. Although
the working group and Governing Board rejected some suggestions, it
does not mean that they did not listen to them.
The Coalition (a group consisting of the American Trucking
Associations, the Association of Waste Hazardous Materials
Transporters, National Tank Truck Carriers, National Private Truck
Council, Hazardous Materials Advisory Council, Ohio Trucking
Association, Minnesota Trucking Association, Nevada Motor Transport
Association, and West Virginia Motor Truck Association) indicated
transportation of hazardous materials is ``highly'' regulated due to
the dangers associated with these commodities. The Coalition also
indicated that the overall safety record for transportation of
hazardous materials is ``excellent'' and incidents are kept to a
minimum by strict regulatory requirements enforced by Federal and State
personnel. The Coalition stated:
[M]any states and localities believe that hazardous materials
transportation must be even more tightly controlled and have
implemented registration and permitting programs within their
jurisdictions. In recent years, approximately 49 separate programs
with 49 different application requirements have arisen.
The Coalition is concerned that these state and local programs
will continue to multiply at an escalating pace. With approximately
33,000 jurisdictions in the United States, it is possible that there
could be literally thousands of separate permitting and registration
programs in the future with attendant fees. This is especially true
when one considers the current misperception that transporters of
hazardous materials are prone to accidental releases.
The Coalition also indicated it believes Congress, through 49
U.S.C. 5119, has charged the Secretary with the responsibility to halt
the proliferation of non-uniform requirements. The Coalition stated:
Congress recognized that the states have a legitimate role in
registering and permitting motor carriers who transport hazardous
materials. One way to strike a balance between eliminating the
proliferation of non-uniform requirements and allowing states and
localities an appropriate registration and permitting role is
through the development of a federally specified and state-run
registration and permitting program. To that end, Congress has
charged the Secretary of Transportation with investigating that
possibility (49 U.S.C. 5119). It was intended that such a uniform
and reciprocal program would apply only to those states that wish to
register or permit motor carriers. In any such program, states would
be required to make use of the latest technologies and systems in
order to determine motor carrier fitness for operating as a
hazardous materials transporter. That is the essence of the
recommendations of the Alliance as set forth in its ``Final
Report.'' The Final Report, which describes the Uniform Program
pilot project, was submitted to the Secretary by the Alliance
Interim Governing Board on March 15, 1996.
The Coalition is very familiar with the contents of the Final
Report and supports its general conclusions and approach, even
though we do not concur with every technical detail. The Coalition
recommends that FHWA move forward with rulemaking on the Alliance
recommendations immediately. The Final Report is an accurate account
of the pilot project that tested the recommendations of the Alliance
in the states of Minnesota, Nevada, Ohio, and West Virginia. The
pilot proved that the system can work, if properly structured and
administered. Indeed, a number of states are interested in becoming
members of the Alliance, especially since the Uniform Program
provides them a ``safe harbor'' from preemption of their
registration and permitting laws.
The Coalition argued that the slow pace of the FHWA's
decisionmaking process and lack of funding has created confusion and
frustration for the States. The Coalition stated:
[S]tates are unwilling to abandon current programs in return for
the existing Uniform Program because of uncertainty about FHWA's
commitment to follow through on the congressional directive to
implement a state-based uniform hazmat permitting and registration
program. The uncertainty is heightened by the slow pace FHWA has set
for this rulemaking and the lack of continuing FHWA financial
support for those states that are continuing to carry on the Uniform
Program. In fact, one of the states presently in the four state
alliance is on the verge of implementing a new non-uniform program
because of the absence of federal guidelines. Consequently, many
states have been left in limbo because of the lack of Federal
direction, leading them to either maintain the status quo or proceed
on their own with non-uniform programs.
Therefore, the Coalition strongly recommends that FHWA make the
rulemaking process for uniform procedures for hazardous materials
transportation a top priority. Failure to do so will only result in
continued confusion and frustration. Industry and government
representatives
[[Page 15365]]
worked diligently to devise the Uniform Program and to test its
recommendations. While there are still many compromises in the final
recommendations, the Coalition endorses the concepts of the Uniform
Program.
The AWHMT stated:
Members and staff of the Association have been involved in the
development of the Uniform Program since the issue of state
authority for qualifying carriers of hazardous materials was debated
in Congress prior to the enactment of the 1990 amendments to the
Hazardous Materials Transportation Act (HMTA) which authorize this
rulemaking. At that time, we recognized that any credible program of
credentialing carriers would have to rely on the participation of
states because the federal government lacks the manpower to perform
this task. However, the duplication and redundancy of unfettered
state administration of such programs created intolerable burdens
for interstate carriers.
The determination of states to remain major players in the
registration and permitting of motor carriers transporting hazardous
materials has not abated since the enactment of the 1990 amendments.
In fact, the number of permitting and registration programs has
grown. Currently, all but 11 states administer some type of
hazardous materials registration and/or permitting program.
The AWHMT expressed concern about what it termed ``the lack of
federal financial support to carry the Uniform Program forward to
national implementation.'' The AWHMT indicated that the FHWA has not
continued financial support to the pilot States or other States that
would like to participate in the Uniform Program. The AWHMT stated:
Four states are carrying the burden of this program for the
nation. It is unclear how long the pilot states are able and willing
to support the Uniform Program before other states agree to share
the load. Other states are, as outlined in the Coalition comment,
waiting for DOT's final rule. Every day implementation of this rule
is delayed past the November 17th trigger, we believe FHWA should
financially assist its pilot program ``state partners.'' If no
support is forthcoming, FHWA owes it to these state partners to
finalize, as expeditiously as possible, the Uniform Program.
The CVSA stated:
Congress recognized the role the states play to assure the safe
transportation of hazardous materials. States concerned about the
quality of such carriers have been unable to effectively ensure
compliance of non-domiciled carriers operating in their
jurisdictions. The Uniform Program provides a mechanism to
reciprocally recognize the reviews performed by other states on non-
domiciled carriers. The ability to prequalify hazmat carriers in a
reciprocal fashion is necessary to facilitate the ``seamless'' flow
of commerce across state lines that FHWA envisions through other
initiatives it is pursuing such as CVISN (Commercial Vehicle
Information System Network). States will also realize more efficient
use of resources as the burden of regulating the nation's interstate
carriers is distributed among the states.
CVSA believes it is critical to move forward with the Uniform
Program in an expeditious fashion. States are willing to participate
in the Uniform Program. However, Congress empowered the Secretary to
issue regulations implementing only those recommendations of the
Alliance with which the Secretary agrees. Thus, the possibility that
FHWA will not finalize the Uniform Program as recommended in full by
the Alliance has a chilling effect on additional state
participation.
Three State agencies submitted comments in support of the
Alliance's recommendations. One of the State agencies, the Ohio PUC,
participated in the negotiations of the original Alliance working group
and as a pilot State during the two-year pilot program. The Ohio PUC
stated:
The Commission has registered and permitted over three thousand
hazardous materials carriers, including over three hundred hazardous
waste transporters under the Uniform Program. Based upon its
experience during the working group negotiations and as a pilot
state, the Commission believes that the Uniform Program represents a
consensus between the States and the regulated industry.
The Ohio PUC recommended that the FHWA carefully examine the issue
of continued financial support for the Alliance until implementation of
the Uniform Program is completed. The Ohio PUC stated:
(T)he Commission's support for reciprocity is conditioned upon
adequate financial support from the FHWA for the national repository
and the Alliance Interim Governing Board until the Uniform Program
is fully implemented. In the Final Report, the Alliance provides a
detailed summary of the costs of maintaining the infrastructure
necessary for reciprocity. Final Report: Uniform Program Pilot
Project, March 15, 1996, at 53-54. The experience during the pilot
process demonstrates that there is an infrastructure necessary for
reciprocity among the States. It is unrealistic to expect that the
four states now in the Uniform Program can bear the costs of
maintaining the infrastructure necessary for reciprocity without
assistance from the FHWA until the Uniform Program is fully
implemented.
The Michigan State Police believe implementation of the Uniform
Program would improve compliance with hazardous materials regulations
and improve safety. The Michigan State Police believe the Alliance's
program can be implemented without adversely impacting the State's need
to place administrative controls on hazardous materials carriers.
Two motor carriers provided comments in support of the Uniform
Program. DuPont-Sentinel stated:
Our organization supports the Alliance recommended Uniform
Permitting system. We feel it is a reasonable balance between the
effort required of carriers to generate data and the information
needed by the states to perform an adequate background check and
determine carrier safety history. Critics will argue that the
information requirements of the proposed program are somewhat more
complex than many existing state permits. While this is true to a
certain extent, the additional requirements also mean those states
will have more detailed information than they presently use to
continue making sound decisions about carrier safety performance and
permit qualifications.
We have found the informational burdens imposed by the
recommended uniform system are not overly intrusive to us or to our
interstate hazardous material/waste carrier industry. When the more
complex, but uniform, requirements are weighed against the current
disjointed myriad of various state requirements for different
information, our company alone will be able to save approximately
$8,000 per year in administrative cost under the uniform program. We
feel that other carriers handling hazardous materials and wastes in
multiple states will see the same effect. Thus any additional
complexity of data supplied by the carrier is more than outweighed
by the benefit of only having to have the same set of uniform data
for each state.
DuPont-Sentinel also indicated that it believes reciprocity between
State permitting and registration programs will greatly enhance each
State's ability to assess motor carriers' compliance with the hazardous
materials regulations. DuPont-Sentinel stated:
Our opinion is that reciprocity would mean all the involved
states would each be responsible for determining the safety fitness
of a fraction of the present number of carriers, with the same level
of state revenues to fund these assessments. Thus the states would
have the time and funding to perform a much more intensive
investigation of the fewer carriers which are based in their state
for permitting purposes. By almost any logic, this should result in
a much higher level of highway safety because the carriers which are
qualified by the state to handle hazardous materials will be more
thoroughly investigated than they are today. Thus only those
carriers which can clearly demonstrate to the base state a proven
history of safe performance and compliance with existing standards
will be allowed to transport hazardous materials.
Roadway stated:
We agree that transporters of hazardous materials should be held
to high standards and do not dispute the right of regulators to
monitor safe transportation. However, a regulatory scheme that
allows more than 30,000 jurisdictions to develop individual programs
in a hit-or-miss scheme is detrimental overall to safety.
[[Page 15366]]
FHWA Response to Commenters Supporting the Implementation of the
Alliance's Recommendations
The FHWA understands the commenters concerns about the need to
establish uniformity and reciprocity between the States' permitting and
registration programs. However, the agency does not believe that the
information provided to date from the States and hazardous materials,
substances, and wastes transporters is sufficient to support issuing a
notice of proposed rulemaking (NPRM) to adopt the Alliance's
recommendations. Prior to issuing an NPRM the agency must assess the
costs and benefits (safety and economic) of implementing the Alliance's
recommendations. A major factor in assessing the costs is the extent to
which the States would be required to modify their existing programs
and the development of the information-system infrastructure needed for
the States to share information on motor carriers' safety performance.
Because of the lack of comments from the State agencies administering
permitting and registration programs, the FHWA cannot determine the
costs of implementing the Alliance's program.
With regard to benefits, neither the Alliance's final report nor
the comments received in response to the July 9, 1996, notice provided
information to enable the FHWA to estimate the benefits of implementing
the Alliance's Uniform Program. Although several commenters believe the
overall costs to motor carriers will be reduced, the agency does not
believe it is possible to make such an assertion without determining
all of the costs associated with implementing the Uniform Program and
identifying the sources of revenues or funding to meet those costs. In
the absence of Federal funding, the most likely source would be the
registration and permit fees paid by motor carriers. The State agencies
did not indicate whether their fees would be adjusted to cover the
costs of implementing the Uniform Program. Therefore, it is
inappropriate to assume that the costs for the industry would decrease.
Although the Alliance indicated in its comments that 24 ``open
meetings'' were held and the concerns of the States and industry were
considered, the comments received to date suggest the Alliance's
proposed uniform program does not effectively reconcile the differences
among existing State programs. The FHWA notes that only three State
agencies submitted comments in support of implementing all of the
Alliance's recommendations. Two States and the NEWMOA supported the
adoption of the Alliance's uniform program for hazardous materials and
substances transporters, but opposed applying the program to the
permitting of hazardous waste transporters. Two other States opposed
implementing any of the elements of the Alliance's Uniform Program. The
comments from the States opposed to some, or all of, the Alliance's
recommendations are an indication that certain aspects of the Uniform
Program are not, as currently presented, acceptable to those States for
incorporation into their permitting and registration programs. A
detailed discussion of the comments from States opposed to some, or all
of, the Alliance's recommendations is provided in the next section of
this notice. This is particularly important because of the preemptive
effect that the Alliance's recommendations, if implemented by the FHWA,
would have on the jurisdictions that have not adopted the Uniform
Program.
Section 5119(c) of title 49 of the United States Code requires that
a regulation prescribed under this subsection must take effect one year
after it is prescribed. The Secretary may extend the one-year period
for an additional year for good cause. After a regulation is effective,
a State may establish, maintain, or enforce a requirement related to
the same subject matter only if the requirement is the same as the
regulation. Therefore, if the FHWA implemented the Alliance's
recommendations, each State with a permitting and/or registration
program that differs from the Alliance's Uniform Program would be
required to either modify its program to conform completely to the
Alliance's program, or cease its permitting and/or registration
program. The FHWA believes there are significant costs associated with
having each of the States modify its respective program and it would be
inappropriate to initiate a rulemaking action at this time without
determining the total economic burden on the States. Section 5119 does
not provide Federal funding for the States to make the transition from
their current registration and permitting programs to the Uniform
Program, and it is not evident to the FHWA that the States are prepared
to absorb all the costs associated with implementing the Uniform
Program.
The FHWA believes that prior to initiating a rulemaking to
implement the Alliance's recommendations, the agency must be assured
that the States are prepared to fund all costs associated with entering
into the Uniform Program, and have the means to sustain the Uniform
Program without support from the FHWA. Federal funding was provided to
the four pilot States to participate in the study, but currently no
funding has been designated to support the continuation of the Uniform
Program in the pilot States or the enrollment of the remaining 46
States and the District of Columbia.
In addition to the costs for each of the States to adopt the
Uniform Program, there are costs associated with establishing an
information-system infrastructure for nationwide implementation of the
Uniform Program and funding the operations of the Governing Board. The
Alliance estimates the annual administrative costs (e.g., the Governing
Board, maintaining the repository, etc.) of a fully-implemented Uniform
Program covering all of the States and the District of Columbia would
be approximately $400,000. This amount does not include the annual
costs for each of the States to participate in the Uniform Program.
Since Congress did not authorize Federal funds for the implementation
of the Uniform Program, the administrative costs for the Uniform
Program would have to be financed through fees paid by the motor
carriers subject to the permitting and registration requirements.
Therefore, the registration and permitting fees charged by the States
may need to be increased in order to cover both the costs for the
States to operate under the new base-State procedures, and the costs
for administering a nationwide network.
The FHWA notes several commenters indicated there is a need for
continued Federal funding for the pilot States and the Interim
Governing Board. The expectation that the FHWA would continue funding
for the pilot States proves that the Uniform Program, as tested by the
Alliance, is not self-sufficient. Although commenters argue the pilot
States are being forced to absorb the costs for maintaining the Uniform
Program until it is fully implemented, the FHWA does not believe
participation in the Pilot Project should have resulted in an undue
financial burden on the participating States. With the exception of
West Virginia, each of the participating States had a registration and/
or permitting program in effect prior to volunteering to join the Pilot
Program. The FHWA did not provide funding for these non-reciprocal
programs. Federal funding was provided to assist in making the
transition from the old registration and permitting system to the
Uniform Program, and in the case of West Virginia, to establish a
registration and permitting system under the Pilot Program. Therefore,
the pilot States
[[Page 15367]]
were responsible for charging the necessary registration and permitting
fees to cover the costs associated with their programs, and their
respective shares of the administrative costs associated with the four-
State information-system infrastructure and the Interim Governing
Board.
The FHWA believes the administrative costs for the infrastructure
and the Interim Governing Board should be proportional to the number of
States and motor carriers covered by the Uniform Program. The Uniform
Program only has four States participating at the present time and the
costs for administering the current program should not pose a problem
for the participating States. The FHWA disagrees with the commenters'
inference that there is fixed cost for the nationwide information-
system infrastructure and Governing Board for which the pilot States
must bear the full burden until other States adopt the Uniform Program.
If more States join the Uniform Program, it is reasonable to expect
that each State will bear the financial burden for its involvement and
its share of the infrastructure. The commenters have not provided
details on why the costs for the pilot States' current activities
exceed the financial resources available from the fees charged to the
hazardous materials, wastes, and substances transporters.
The FHWA must emphasize the fees charged by the pilot States were
not limited by the FHWA. Section 5119 does not give the agency
authority to limit the registration and permitting fees collected by
States from motor carriers. However, 49 U.S.C. 5125(g) requires that if
a State, political subdivision of a State, or Indian tribe imposes a
fee related to hazardous material transportation, the fee must be
``fair'' and used for a purpose related to hazardous material
transportation, including enforcement and planning, developing, and
maintaining a capability for emergency response. Each State has the
responsibility of determining the fees it believes are necessary to
support its hazardous materials safety programs. The States also have
the responsibility for taking into consideration the percentage of
those fees that must be distributed to other States in the Uniform
Program. Presumably, the State that has the burden of processing a
motor carrier's application and performing the investigation of the
carrier would take the greatest share of the fees paid by the carrier.
The percentage of the fees distributed to other States would be based
upon an appropriate assessment of those States' roles in ensuring the
safe operation of the carrier. For whatever reason, the fee collection
and distribution system used in the Pilot Project did not achieve self-
sufficiency.
The FHWA agrees with the Coalition's statement that there is a need
to halt what it terms ``the proliferation of non-uniform
requirements.'' However, the agency does not believe the States'
uncertainty about the outcome of the FHWA's review of the Alliance's
recommendations is an obstacle to achieving uniformity or reciprocity.
The States have independently developed permitting and registration
programs with no apparent movement toward the use of uniform forms and
procedures. The States have also been reluctant to implement
reciprocity provisions in their permitting and registration programs.
The Congress recognized the States' reluctance to establish uniformity
and reciprocity and charged the Secretary with the responsibility to
establish a working group to study the issue and, upon completion of
the working group's final report, implement the recommendations with
which the Secretary agrees.
The FHWA reviewed the final report and recommendations of the
Alliance and, after considering the complexity of the issues covered in
the report and the potential economic impact on the States, issued a
notice requesting public comments on the report. The agency concluded
that it would have been inappropriate to assume the Uniform Program was
acceptable to most of the States, and that the States were prepared to
absorb all the costs of implementing the Uniform Program.
In response to comments about one of the four pilot States
discontinuing its participation in the Uniform Program, the agency
strongly encourages each of the pilot States to maintain the current
reciprocal arrangements. The FHWA also encourages other States to
examine the potential for achieving reciprocity in permitting and
registration programs. If the common goal is to ensure the safe
transportation of hazardous materials, there should be a common
approach to accomplishing the goal. The States are not prohibited from
having reciprocal agreements and there is no readily apparent reason
for the States' refusal to cooperate with neighboring jurisdictions to
establish reciprocity. Irrespective of whether there is a Federal
mandate, the States should establish reciprocal agreements whenever
possible.
Comments in Opposition to Implementing All of the Alliance's
Recommendations
Eight commenters opposed implementation of some, or all of, the
Alliance's Uniform Program. The Advocates, Blair America, Inc., the
IME, the Idaho State Police, and the Iowa DOT opposed implementing the
Alliance's recommended program. The Michigan DEQ, New Jersey Attorney
General, and the NEWMOA support implementing the Alliance's
recommendations for hazardous materials transportation, but oppose
mandating reciprocity of permitting requirements for hazardous waste
transporters.
The NEWMOA 2 stated:
\2\ The NEWMOA is a non-partisan, nonprofit interstate
association that was established by the Governors of the New England
States as an official interstate, regional organization, in
accordance with section 1005 of the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. 6901 et seq. The membership consists
of State environmental agency directors of the hazardous waste,
solid waste, waste site cleanup, and pollution prevention programs
in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New
York, Rhode Island, and Vermont.
---------------------------------------------------------------------------
Generally, our state hazardous waste programs approve of the
uniform permit forms that the Alliance and its support staff have
developed. However, we continue to have serious reservations about
the effects that base-state permitting/permit reciprocity and
related issues will have on our state's ability to effectively
regulate hazardous wastes. These reservations persist despite a
number of major improvements to the model program that were made by
the Alliance and its staff to address our, and other states'',
concerns. We believe that, to a considerable degree, these concerns
are rooted in differences between relevant statutory goals that may
be difficult to reconcile without additional public airing of the
environmental regulatory issues that we raise. Finally, we would
like to briefly address DOT's policy concerning preemption of state
hazardous waste regulatory requirements. While this policy is not
addressed by the Alliance's report it has, in our view, a bearing on
your agency's decisions regarding the Alliance's recommendations and
their implementation.
The NEWMOA indicated that each of its member States has a rigorous
permitting program for hazardous waste transporters and facilities
where wastes are stored and transferred. Each of the States requires
extensive disclosure of ownership, criminal history, and history of
compliance with environmental and safety laws and regulations as a
condition for receiving and maintaining a permit. The NEWMOA stated:
These state programs were created to fill a major gap in the
``cradle to grave'' regulatory concept for hazardous wastes that was
envisioned by congress and is encouraged in RCRA (Resource
Conservation and Recovery Act). Our accumulated experience has
taught our states that any activities involving wastes require a
higher degree of regulatory scrutiny than activities involving
commercial commodities which have value. An unfortunate part of this
experience is the
[[Page 15368]]
legacy of soil and groundwater contamination present in each of our
states. This contamination, in part, is the result of hazardous
wastes discharged prior to current environmental standards being
implemented at either the state or federal level. Section 22 of
HMTUSA does not mention or address this critical element of our
state hazardous waste programs. Thus, it is not surprising that the
Alliance and its staff have had difficulty addressing our concerns.
While we believe that the Alliance's Model Program should improve
the overall regulation of hazardous materials transportation, we
fear that it would, as presently proposed, erode adequate cradle to
grave control of hazardous waste over time.
The concept of reciprocity appears reasonable enough when
applied to the relatively straightforward permit issues involved in
transportation safety. However, permit reciprocity becomes more
complicated when applied to less quantifiable issues, such as
business integrity, that are important considerations when
regulating hazardous wastes. The degree of investigation required in
such permit reviews is often a matter of judgement, based on
experience and knowledge of a transporter's operations, making the
overview of such activities by a peer review group difficult to
administer and enforce, and unrealistically demanding of resources.
Consequently, NEWMOA's directors do not feel confident that the peer
review mechanism would ensure consistently adequate permit reviews.
The Michigan DEQ stated:
The program needs to develop flexibility to handle non-Hazardous
Materials (HazMat) regulated wastes. Many states have developed
programs which take into account historical problems which go beyond
the scope of HazMat regulated materials such as hazardous waste
managed under the Resource Conservation and Recovery Act. Hazardous
waste is a specific subset of the HazMat regulated under the program
and has a completely different set of problems associated with it,
primarily because it has no inherent value (i.e. it is not a
product, but a waste that is normally being transported for
disposal). States, therefore, set up specific licensing/permitting
programs for dealing with this material that go beyond safety
aspects of the carriers and other HazMat concerns to assure that the
waste is effectively transported and disposed. The proposed Alliance
recommendations for a Uniform program do not take into account the
concerns that states have to deal with concerning transportation of
hazardous or other wastes. Each state should be allowed to develop
licensing/permitting programs that reflect the state's particular
needs and historical problems.
State agencies in Idaho and Iowa opposed all aspects of the
Alliance's Uniform Program. The Idaho State Police stated:
The Uniform HazMat Transportation Procedures as recommended in
the Alliance's final report would negatively impact Idaho's efforts
and thus negatively impact transportation safety in our state. The
new system would preempt the state fee with no guarantee of
replacement funding. The Idaho State Legislature is unlikely to
adopt the procedures.
The Alliance's Uniform HazMat Transportation Procedures are more
complex and stringent than mandated by Section 22 of HMTUSA. The
model creates another regulatory agency at a time when government
agencies and regulations are being minimized. The new agency would
also have some authority without being a governmental agency or
answerable to elected officials.
Due to the complexity of the procedures, administrative costs
would increase when the purpose of the mandate is to reduce costs to
government and carriers. The state fee collecting agency, now under
constraint to consolidate and simplify procedures, will not be
supportive of the additional administrative burden. Considerable
training and carrier assistance would be required to implement the
new system. Carrier fees would also be used to support the Board and
national staff functions, a new cost. In the final report, concern
was expressed regarding lower revenues to the states. The response
was a suggestion to increase the registration fees which nullifies
the economic advantage being described in the report.
The Advocates expressed concern that the Alliance's final report
did not include an assessment of potential health and safety benefits
for implementing the Uniform Program. The Advocates stated:
Our primary concern with the report centers on the findings and
recommendations of Section V: Enhancement of Health and Safety. In
this section, the report's authors cite a continuing urgency on the
part of FHWA officials for a demonstration that the mechanisms of
the four state pilot programs actually increase public benefits by
improving the consequent health and safety of hazmat transport. The
agency wanted assurances that the fundamental concepts of the pilot
programs such as base state registration and reciprocity generate
verifiable reductions in hazmat incidents. The report, p. 38.
The report responds to this urgent plea for demonstrable health
and safety benefits by indicating that safety benefits consist of an
overall increased awareness of the need for carriers to augment the
quality of their internal oversight processes which can produce
better operations through improved compliance with the various
requirements of hazmat transport. Id.
Advocates agrees that a pilot program cannot by itself produce
an uncontested increase in safe hazmat operations, given the small
number of states and the lengths of pilot program participation. We
seriously doubt that sufficient statistical power could be produced
from the small sample sizes in four pilot states' hazmat operations
over just a few years.
Nevertheless, we ultimately agree with the FHWA's insistence on
``bottom line'' health and safety benefits that must be generated
from the program if it is to serve as (a) model for federal
regulatory action nationwide. There must be a clear and convincing
demonstration that the proposed system of registration and
reciprocity not only produces improved internal oversight and review
by hazmat carriers, and arguably improved compliance with hazmat
regulations, but also significant and sustained decreases in hazmat
incidents and their severity.
The Advocates also commented about findings in the report that show
``widespread, chronic violation of threshold requirements and
responsibilities of hazmat carriers, such as insufficient limits on
hazmat transportation insurance, partial or non-existent registration
and/or permit securement, and unresolved civil forfeiture payments for
violations.'' The Advocates stated:
It is clear that some of the hazmat carriers detected through
the pilot program present a danger to public health and safety, and
to environmental protection, and, in some cases, an imminent threat
to public health and safety. Even casual extrapolation of these
findings beyond the four pilot states is a cause of grave concern to
national safety organizations such as Advocates and should be a
strong motivating factor in the FHWA's resolve to require stringent
reforms through the hazmat transportation regulations to verifiably
advance public health and safety.
Blair America, Inc., one of the motor carriers that participated in
the Alliance's pilot study, opposed implementing the Alliance's Uniform
Program. Blair America stated:
Of the four states in the Alliance, we transport HazMat through
only two of them (OH and WV), yet we were forced to pay larger fees
to the two other states through which we never transport HazMat
loads. Of the $275.00 we pay to the Ohio P.U.C. for HazMat
registration, $155.00--more than 56% of the total--is distributed to
MN and NV, states through which we do not transport hazardous
materials. To us, this is just throwing money away because it does
us no good, but is a windfall to the states which do nothing to earn
it.
FHWA Response to Commenters Opposed to Implementing the Alliance's
Recommendations
The FHWA believes the States' concern that the Uniform Program does
not provide adequate procedures for ensuring oversight of hazardous
wastes transporters can be resolved through further negotiations
between the Alliance and the State agencies responsible for regulating
the transportation of hazardous wastes. The commenters indicated it is
necessary to require extensive disclosure of company ownership,
criminal history of company management, and history of compliance with
environmental and safety laws and regulations as a condition for
receiving and maintaining a permit. The FHWA
[[Page 15369]]
understands the States' desire to know as much as possible about
hazardous waste transporters, but cannot pinpoint specific reasons why
the States cannot achieve reciprocity.
Part III of the model application developed by the Alliance
includes questions for transporters of hazardous waste. The form
requests the full name, date of birth, driver's license number and all
aliases used for individuals who hold, or have held in the last three
years, certain management positions. The application form also requests
information on parent companies, affiliates and subsidiaries, major
contractors and clients. In addition, the form has a legal proceedings
section for information on past criminal activities. The commenters did
not provide explanations of why the information requested in the
Alliance's model application would not, if accurately documented, be
satisfactory in identifying high-risk motor carrier operations that
should be denied a permit.
The FHWA notes that achieving uniformity and reciprocity requires
compromise on the part of all of the States. The agency is concerned
that the States have not displayed a willingness to compromise on the
specific information requested from motor carriers or the procedures
used to verify information provided on registration and permitting
forms. The agency strongly recommends that each State make a clear
distinction between concerns about the fee collection and distribution
process and concerns about the information requested on the
registration/permitting form(s) when deciding whether to support or
oppose the Alliance's Uniform Program. This will enable the Alliance to
more effectively respond to the States' concerns.
With regard to commenters reference to the RCRA, the agency has
carefully reviewed the statutory requirements codified at 42 U.S.C.
6901 et seq. and does not believe the States' responsibilities under
the RCRA preclude implementation of the Uniform Program. The RCRA
requires that the Environmental Protection Agency, after consultation
with State authorities, promulgate guidelines to assist States in the
development of State hazardous waste programs. The State programs could
cover the generation, transportation, treatment, storage, or disposal
of hazardous waste. Therefore, the States' current permitting and
registration activities under the RCRA go far beyond the scope of the
Alliance's Uniform Program. However, the FHWA notes the RCRA does not
prohibit uniformity or reciprocity among State hazardous waste
programs. The assertion that programs developed under the RCRA would be
adversely affected by the adoption of the Alliance's recommendations
are not supported by the information the commenters provided.
The FHWA agrees with the Advocates that the Alliance's final report
does not indicate there will be significant and sustained decreases in
hazardous materials incidents. Although Section 5119 does not stipulate
that the uniform forms and procedures developed by the working group
achieve a certain level of effectiveness at preventing hazardous
materials incidents, the FHWA believes the implementation of the
Uniform Program should, at a minimum, provide quantitative safety
benefits. The Uniform Program, if implemented, would require some
States to be more thorough in assessing motor carriers' safety fitness
prior to registering and permitting those carriers. At the same time,
other States may be forced to rely on less information to assess a
carrier's safety fitness. The final report does not provide information
on the effectiveness of the current State programs at improving safety,
nor does it provide an estimate of how the effectiveness of the
individual States' programs may change as a result of adopting the
Uniform Program. The report implies that all registration and
permitting programs are cost effective tools to improve safety and that
the implementation of the Uniform Program will offer improvements over
the status quo.
The FHWA acknowledges that a rigorous permitting and registration
system can be used to identify motor carriers that may not have
sufficient safety management controls to properly handle the
transportation of hazardous materials. It is in the best interest of
the motoring public that unsafe motor carriers be restricted from
transporting hazardous materials, wastes, and substances. However, the
final report does not indicate whether each of the current State
registration and permitting programs are accomplishing the goal of
keeping unsafe carriers from transporting these commodities, or that
the implementation of the Uniform Program will accomplish this
objective.
Irrespective of the FHWA's views on the merits of the commenters
arguments against implementing the Alliance's recommendations, the
agency must reiterate that it is inappropriate to initiate rulemaking
until it has sufficient information to quantify the costs and the
benefits of implementing the Uniform Program. Section 5119 does not
exempt the agency from statutes and Executive Orders governing the
rulemaking process in general, and the specific statutes concerning
preemption of State laws and regulations.
For example, Executive Order 12866 requires Federal agencies to
promulgate only such regulations as are required by law, are necessary
to interpret the law, or are made necessary by compelling public need,
such as, failures of private markets to protect or improve the health
and safety of the public, the environment, or the well-being of the
American people. In deciding whether and how to regulate, agencies must
assess all costs and benefits of available regulatory alternatives,
including the alternative of not regulating. Costs and benefits shall
be understood to include both quantifiable measures (to the fullest
extent that these can be usefully estimated) and qualitative measures
of costs and benefits that are difficult to quantify, but nevertheless
essential to consider. Further, in choosing among alternative
regulatory approaches, agencies are directed to select those approaches
that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages;
distributive impacts; and equity), unless a statute requires another
regulatory approach.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat.
48) requires agencies to do a qualitative and quantitative assessment
of the costs and benefits of the proposed rulemakings that would
require expenditures by State, local, and tribal governments. The
assessment must include an analysis of the extent to which such costs
to State, local, and tribal governments may be paid with Federal
financial assistance and the extent to which there are available
Federal resources to carry out the mandate. Agencies are also required
to provide reasonable estimates of future compliance costs and any
disproportionate budgetary effects upon a particular region of the
country or particular State, local, or tribal government, or particular
segment of the private sector.
The FHWA must emphasize that the analyses required by the Executive
Orders and statutes must be performed before a proposed rulemaking can
be issued. The information provided by the commenters and other
information currently available to the agency is not sufficient for
conducting the types of analyses required by the Executive Orders and
statutes.
Other Issues Discussed by Commenters
Several of the commenters discussed the relationship between the
Alliance's Uniform Program and the Federal and
[[Page 15370]]
State initiatives listed in the July 9, 1996, notice and repeated in
the appendix to this notice.
Specific Issues
The Michigan State Police believes the Research and Special
Programs Administration's (RSPA) registration program should be
eliminated if the Uniform Program is implemented. The Michigan State
Police argues there is no need to have a dual registration system by
both the State and Federal governments. The Michigan State Police
indicated the Alliance's Uniform Program will accomplish the same
objectives as the RSPA's program.
On the subject of the FHWA's safety permit rulemaking (discussed in
the appendix to this notice), the Michigan State Police stated:
The (Michigan State Police) views the FHWA's proposed Safety
Permit Program in the same light as the RSPA [Registration] Program.
Permits and registration do little, if anything, to improve safety.
Just because a vehicle or a company is operated safety today does
not mean it will operate safely tomorrow.
Permit programs do, however, identify the industry to the
enforcement agency and give a ``snapshot'' of how they operate. If
used appropriately, they do represent a legitimate revenue
collection for training and enforcement funding.
Due to the nature of the national and international trucking
industry, including sheer size and ever-changing players, the
Federal Government is not in a position to adequately implement and
maintain an effective permit program. Any permit system would be
infinitely better handled at the state level, as the personnel are
much closer to the individuals in the industry. The Alliance Program
will allow USDOT access of the information in the system.
The (Michigan State Police) does not support the development of
another national-level database, considering the problems with MCMIS
(the FHWA's Motor Carrier Management Information System).
The Michigan State Police also offered comments on the potential
relationship between the Alliance's Uniform Program and the FHWA's
Commercial Vehicle Information System (CVIS) Feasibility Study and
motor carrier identification numbers (USDOT numbers). The Michigan
State Police agree with the initial SafeStat assessment of fitness and
believes that coordinating the SafeStat scores with the Alliance permit
is simply an issue of software compatibility. By contrast, the Michigan
State Police believe there are problems with the current motor carrier
identification numbering system. The Michigan State Police stated:
The numbering system used by USDOT to identify motor carriers is
in definite need of repair. There are far too many mismatches in the
system, which creates numerous difficulties in the MCMIS (Motor
Carrier Management Information System) and Safetynet systems. As
computerized data is becoming increasingly more important, the
(Michigan State Police believe) the USDOT numbering system should be
reworked to address concerns related by the States and industry. As
FHWA is also developing shipper information for hazardous materials
violations, a unique identifier must also be developed for them.
Logic would dictate that these programs be adaptable to each other
to provide consistent, accurate information.
The Iowa DOT believes the Alliance's Uniform Program competes with
the RSPA's registration program. The State argues that one registration
program is enough. The Iowa DOT stated:
The USDOT's Hazardous Materials Registration Program should be
changed. It should encompass all hazardous materials offered for
transportation or transported, which would require the transport
vehicle to be marked or placarded. Second, this program should be
administered by each state with the USDOT providing guidance. It
seems unusual that shippers and carriers send their registration
money to Washington, D.C., have RSPA take a processing fee and then
return money to the states.
The Iowa DOT also discussed the FHWA's CVIS program. The Iowa DOT
stated:
The Commercial Vehicle Information System (CVIS) feasibility
study currently underway should be encouraged to include hazardous
material carriers in the SafeStat Identification Algorithm (either
by incorporating it into an existing safety evaluation area or
creating a separate safety evaluation area relating to HM). This
would allow CVIS to identify ``at risk'' hazardous material
carriers.
The Ohio PUC also discussed the CVIS program. The Ohio PUC
stated: Although the Commission is supportive of the concept behind
the CVIS program as a base-state, reciprocal program, the CVIS
program has no specific hazardous materials component and is only in
the pilot stage. The purpose of the Uniform Program is to ensure
that carriers are qualified to transport hazardous materials. This
includes compliance with provisions such as hazmat training and
insurance where the carrier must certify compliance prior to
transportation; the CVIS program is retrospective in nature,
reviewing safety performance only. Moreover, the practicality and
effectiveness of revoking vehicle registrations privileges is
uncertain at best. In the future, after completion of the CVIS pilot
program, there may be a decision by the States to coordinate more
closely activities under CVIS and the Uniform Program, such as
compliance reviews; however, since the Uniform Program has
successfully completed its pilot process, there is no need to
further delay implementation of the Uniform Program in order to wait
for the completion and review of the CVIS pilot.
The Ohio PUC provided general comments on all of the Federal and
State initiatives the FHWA listed in the July 9, 1996, notice. The Ohio
PUC stated:
With respect to the relationship of the Uniform Program with all
four programs described in the Request for Comments, the FHWA is not
taking advantage of the key lesson learned in studying intelligent
vehicle transportation systems. In the CVISN (Commercial Vehicle
Information System Network) project, the FHWA recognized that,
rather than condensing all databases currently gathered by States
into a single, massive database, efficiencies will be achieved
through a system of computer pointers and triggers which would
create a network of smaller databases. The programs described in the
Request for Comments are examples of other databases which should be
able to share information with the Uniform Program repository;
individual states could then coordinate activities, such as
compliance reviews or audits, across these programs in order to
create efficiencies, when the states deems appropriate in allocating
resources for transportation regulatory activities. It is neither
necessary nor desirable to consolidate all of these programs into a
single program, administered on the Federal level, with a single
massive database.
The Wisconsin DOT stated:
Although there is some merit in the Alliance's recommendations
that uniform program permits supplant federal registration and
permits, and that Congress consider eliminating the federal
registration program, we believe that these recommendations are
premature. Significant differences exist between the two programs.
For instance, the federal program covers offerors and carriers using
water, air, rail or highway modes to transport certain special
categories of hazardous materials. The uniform program covers motor
carriers who transport all placarded hazardous materials, as well as
bulk-packaged hazardous substances and marine pollutants, and
hazardous wastes requiring a uniform manifest. The federal program
exempts government agencies, while under the uniform program, they
may be subject to registration. These and other discrepancies need
to be addressed before considering coordination of the two programs
or the elimination of the federal program.
The Coalition presented its recommendation on how the FHWA could
satisfy the statutory requirements of 49 U.S.C. 5109 concerning Federal
motor carrier safety permits for certain hazardous materials
transporters, and 49 U.S.C. 5119 concerning uniform forms and
procedures for registration and permitting of hazardous materials
transporters. The Coalition stated:
Congress charged the Secretary of Transportation with developing
a permitting program for transporters of certain hazardous materials
(49 U.S.C. 5109). However, under the Alliance program those same
transporters will already be subject to permitting requirements.
Therefore, any Federal permit or registration should focus on and
apply
[[Page 15371]]
only to motor carriers that operate in those states that do not wish
to become a member of the Uniform Program. The Coalition suggests
the following:
(1) If the motor carrier operates only in Federal Program
states, the motor carrier would be bound by the Federal permit
requirements and would not be permitted to operate in Uniform
Program States without first obtaining the proper credentials.
(2) If a motor carrier operates only in Uniform Program states
or, both Uniform Program and Federal Program states, the Uniform
Program registration and permit would be all the motor carrier needs
to operate in all jurisdictions.
The Coalition indicated that it believes this type of system would
provide for a higher level of regulatory compliance by motor carriers
and at the same time would lessen the total regulatory burden on
hazardous materials transporters.
FHWA Response to Commenters
The FHWA believes the commenters have identified significant
reasons why the Federal and State initiatives and programs described in
the July 9, 1996, notice are not, as currently operated, acceptable to
the States as tools to help monitor hazardous materials, waste, and
substances shippers and transporters. Each of the initiatives was
started for a variety of reasons which do not appear to coincide with
the reasons the States have developed their registration and permitting
programs. As such, the programs do not, in the opinion of the State
agencies, provide enough detailed information on all hazardous
materials transporters.
For example, the current Federal Hazardous Materials Transportation
Registration and Fee Assessment Program covers entities who offer or
transport (in commerce) any of the following materials:
1. Any highway route-controlled quantity of a Class 7 (radioactive)
material;
2. More than 25 kilograms (55 pounds) of a Division 1.1, 1.2, 1.3
(explosive) material in a motor vehicle, rail car, or freight
container;
3. More than one liter (1.06 quarts) per package of a material
extremely toxic by inhalation (a material poisonous by inhalation that
meets the criteria for ``hazard zone A'');
4. A hazardous material in a bulk packaging having a capacity equal
to or greater than 13,248 liters (3,500 gallons) for liquids or gases
or more than 13.24 cubic meters (468 cubic feet) for solids; or
5. A shipment, in other than a bulk packaging, of 2,268 kilograms
(5,000 pounds) gross weight or more of a class of hazardous materials
for which placarding of a vehicle, rail car, or freight container is
required for that class.
The Federal program was established in response to 49 U.S.C.
5108(a)(1) and covers a subset of all hazardous materials shipments.
Section 5108(a)(2) gives the Secretary the authority to expand the
registration program to cover persons transporting or causing to be
transported hazardous materials not included in the list above.
With regards to the comments on the FHWA's SafeStat program, the
FHWA notes that SafeStat is a performance-based approach to rank motor
carriers for on-site compliance reviews (CRs). The program is intended
to more effectively focus the FHWA and State resources on motor
carriers who have demonstrated poor safety performance through roadside
inspections, prior enforcement actions and, most importantly,
accidents. SafeStat uses four broad Safety Evaluation Areas (SEAs): The
Accident SEA, the Driver SEA, the Vehicle SEA, and the Safety
Management SEA. For each SEA, values are determined for all carriers
that have sufficient safety data related to that SEA. If sufficient
safety data is not available, a value is not calculated. No assumptions
are made based upon a lack of data. Each carrier's SEA value
approximates the motor carrier's percentile rank, relative to all other
motor carriers having sufficient data to be assessed within that same
SEA. By using the percentile rank for each SEA, SafeStat avoids using
arbitrary predetermined levels of scoring and provides an easily
understood value for each SEA. The SEA values range between 0 and 100.
The higher a carrier's SEA value, the worse its safety status.
Therefore, an Accident SEA score of 80 indicates that approximately 80
percent of the motor carrier population had a better level of safety
performance than the subject carrier with respect to accidents and 20
percent had worse. Similarly, a Vehicle SEA score of 75 indicates that
approximately 75 percent of the motor carrier population had a better
level of safety performance than the subject motor carrier with respect
to their maintenance practices and the operating condition of their
vehicles.
SafeStat allows the relative weight for each SEA to be adjusted for
purposes of calculating an overall score. Since accident history is the
most important measure of safety, SafeStat places double emphasis upon
the Accident SEA in calculating an overall SafeStat score. Motor
carriers that are identified as being within the worst 25 percent of
the ranked population within an individual SEA are deemed an
unacceptable performer for that SEA.
The FHWA acknowledges SafeStat does not include an SEA for
hazardous materials. The agency understands the concerns that States
and the general public have about hazardous materials. The SafeStat
program, as currently structured, provides a performance-based approach
for prioritizing motor carriers for on-site compliance reviews. The
prioritization algorithm does not make a distinction for commodities
transported. The mere fact that a motor carrier transports hazardous
materials does not mean the carrier should be a higher priority than a
carrier that transports nonhazardous materials but performs poorly in
the SEAs. The FHWA believes the SafeStat program can be used as part of
a hazardous materials permitting framework. Hazardous materials
carriers that perform poorly in the current SEAs would be considered
ineligible for a permit and carriers for which there is insufficient
data would be granted the permit based upon information obtained from
company officials and, if necessary, an on-site compliance review.
The FHWA notes that none of the commenters provided information on
current State activities to monitor the safety performance of the
carriers who are required to register or obtain permits. The States
commenting to this docket have emphasized the importance of identifying
the hazardous materials shippers and transporters, but have not
indicated whether the information is being used to prioritize
enforcement actions or compliance reviews.
The FHWA disagrees with the Michigan State Police's statement that
registration and permitting programs do not improve safety. The FHWA
believes that a carefully structured registration and/or permitting
program that focuses on the risks associated with the specific
commodities transported, and linked to enforcement activities initiated
in response to poor safety performance could have safety benefits. To
date, the States have not submitted comments to the FHWA indicating
that their programs are based upon any form of risk assessment or
linked to specific enforcement activities aimed at hazardous materials
carriers with poor overall safety records.
With regard to the Michigan State Police's comments about MCMIS,
the FHWA intends to issue a notice of proposed rulemaking to require
motor carriers to periodically update the information submitted to the
agency on the Motor Carrier Identification Report (Form MCS-150).
Section 385.21 of the
[[Page 15372]]
Federal Motor Carrier Safety Regulations requires motor carriers
conducting operations in interstate commerce to file a Form MCS-150 to
the agency within 90 days after beginning operations. Currently,
carriers are not required to update the information submitted. The FHWA
is aware of problems with the current system and believes the
forthcoming rulemaking will provide the States and the motor carrier
industry with an opportunity to work with the agency to improve the
accuracy of the information in the MCMIS.
The FHWA believes the comments about the capabilities of the States
versus those of the Federal government are a strong indication of the
need for uniformity and reciprocity. The FHWA agrees with the Ohio PUC
that efficiencies can be achieved through a network of databases using
a system of computer pointers and triggers. However, the States have
apparently refused to embrace this concept. The FHWA must reiterate
that there is no prohibition on uniformity and reciprocity. The States
need only agree to work together to make uniformity and reciprocity a
reality. The Alliance has provided its recommendations on uniform forms
and procedures and the States have not shown a willingness to adopt the
Alliance's recommendations. Therefore, it is not a question of the FHWA
taking advantage of lessons learned from previous Federal-State
initiatives, but a question of why the States have not elected to work
together for the common goal of ensuring an efficient and effective
program to improve the safety of hazardous materials transportation.
The FHWA must emphasize that the Congress directed the Secretary to
establish the Federal registration program implemented by the RSPA, and
the Federal permitting program proposed by the FHWA on June 17, 1993
(58 FR 33418). These programs are congressional mandates and should not
be considered as a form of competition between the Federal and State
governments. The States have an important role in highway safety and a
right to go beyond the scope of Federal programs if, based upon data,
it is clear there are safety issues that need to be resolved. To date,
none of the commenters have identified specific safety issues, nor have
they provided a clear explanation as to why the States cannot achieve a
consensus on the forms and procedures used for the registration and
permitting of hazardous materials transporters.
In response to the Coalition's recommendation for implementation of
the Federal permitting requirement, the FHWA believes the approach may
have merit if most of the States adopt the Alliance's Uniform Program.
The FHWA believes this approach could help to minimize the paperwork
burden on the motor carrier industry and the FHWA, while providing an
effective means to monitor the safety performance of the hazardous
materials carriers that would be covered by the proposed Federal
permitting requirements. The agency will consider the Coalition's
comments along with those of persons commenting in response to the June
17, 1993, NPRM.
Request for Additional Comments
Questions for State Agencies
Generally, the establishment of a permitting requirement means
motor carriers that fail to meet the minimum requirements for obtaining
the permit would not be allowed to transport certain classes of
hazardous materials, substances or wastes. Establishing a permitting
requirement also means that motor carriers which are granted a permit,
would lose their privileges to transport certain classes of hazardous
materials if the terms and conditions of the permit are violated. If
there are quantifiable safety benefits to a permitting program, they
would come in the form of preventing hazardous materials incidents
caused by unqualified motor carriers transporting the materials for
which a permit would be required. Given these assumptions, the FHWA
requests that State agencies responsible for the permitting of
hazardous materials transporters answer the following questions:
1. What types of hazardous materials, wastes, or substances may
only be transported in or through your State by motor carriers that
have a permit?
2. Why did your State initiate its permitting program and in what
year did the program take effect? For example, was there a specific
hazardous materials incident(s) that prompted the development of the
program?
3. How many motor carriers applied for permits in each of the last
5 calendar/fiscal years (please indicate the period covered in your
State's fiscal year)? Of the motor carriers that applied for permits
during each of the last 5 calendar/fiscal years, how many were denied a
permit and what were the typical reasons for denial of the permit?
4. During each of the last 5 calendar/fiscal years, how many
carriers had their permits revoked or suspended and what were the
typical reasons for the revocation or suspension? How many of the motor
carriers had their privileges to transport hazardous materials,
substances, and wastes reinstated?
5. Are motor carriers required to renew the permit? If yes, what is
the procedure for renewing the permit and how often is the carrier
required to renew the permit?
6. Looking specifically at the number of highway transportation-
related hazardous materials incidents (involving a hazardous material,
substance, or waste for which the transporter is required to obtain a
permit), how many incidents, fatalities, and injuries occurred in each
of the last 5 calendar/fiscal years? Also, what was the dollar amount
of property damage and environmental restoration associated with the
incidents in each of the last 5 calendar/fiscal years.
The following questions are intended to gather information
concerning the costs associated with establishing and operating the
various State permitting programs and the States' estimates of the
economic and information collection burden on motor carriers subject to
the States' permitting requirements:
7. How much money was needed to establish your State's permitting
program? Please include all costs associated with hiring and training
staff, setting up a computer system, etc.
8. How much money did your State spend in each of the last 5
calendar/fiscal years to maintain its permitting program?
9. How much money was collected during each of the last 5 calendar/
fiscal years in the form of application and processing fees that motor
carriers were required to pay in order to receive a permit?
10. What was the application fee and, if applicable, the processing
fee that was charged for each of the last 5 calendar/fiscal years?
11. How much time does your State estimate that the average motor
carrier spends completing an application for the State's permit?
12. How much time does your State estimate that the average motor
carrier spends renewing the State permit?
13. What types of records or other documents related to the permit
or registration requirements are motor carriers required to maintain?
The next series of questions concern reciprocity between State
programs. The FHWA is requesting information from States about
potential institutional barriers to establishing Federal requirements
for uniform forms and procedures for hazardous materials, substances,
and wastes transportation.
14. Does your State's permitting or registration program include a
[[Page 15373]]
reciprocity agreement with any other State's permitting or registration
program? Please identify the State(s).
15. If your State does not have a reciprocity agreement with
another State(s), what specific requirements does your State impose on
motor carriers that the other States do not cover?
16. If the FHWA implemented a Uniform Program, using a base-State
approach that required your State to accept permits issued by other
States and to modify your State's forms and procedures, how much money
in fees would your State lose? How much money would your State have to
spend to modify its current permitting and/or registration system?
Motor Carrier Questions
The next series of questions are intended to gather information
from motor carriers about the economic and administrative burden
associated with complying with State permitting and registration
requirements.
17. How many different State permitting and/or registration
programs was your company subject to during each of the last 5 calendar
years?
18. What was the total for all State permit application and/or
registration fees and, if applicable, processing fees that your company
paid for each of the last 5 calendar years?
19. What was the total for all State permit renewal fees that your
company paid during each of the last 5 calendar years?
20. On average, how much time does your company spend completing an
application for a State permit or completing a State registration form?
21. On average, how much time does your company estimate that it
spends renewing each State permit?
22. Are there any instances in which your company was granted a
permit to transport specific commodities in a State(s), but denied a
permit to operate in another State? Please identify the commodities and
the States involved.
Comments Concerning Other Relevant Issues
In addition to the questions listed, commenters are encouraged to
discuss other issues that they believe are relevant to the discussion
of uniform forms and procedures for hazardous materials, substances,
and wastes. The FHWA requests that commenters examine current Federal
and State initiatives concerning permitting and registration of motor
carriers.
Current Federal And State Initiatives Concerning Registration and
Permitting of Motor Carriers and Shippers
There are several major activities underway which could be used as
part of the hazardous materials transportation registration and
permitting processes. These activities include: (1) The FHWA's motor
carrier safety permits and inspection rulemaking; (2) the Research and
Special Program Administration's (RSPA) Hazardous Materials
Registration and Fee Assessment Program; (3) the Performance
Registration Information System Management (PRISM) program (formerly
referred to as the Commercial Vehicle Information System or CVIS); and
(4) the elimination of the Interstate Commerce Commission (ICC) and the
transfer of the ICC's registration (operating authority) and insurance
programs to the FHWA. These initiatives, as well as the FHWA's motor
carrier registration requirement--the motor carrier identification
report (Form MCS-150) required by 49 CFR 385.21 and used by the FHWA to
assign USDOT numbers--and the registration and insurance filings of
for-hire motor carriers required by many States (Single State
Registration System) provide a means for identifying transporters of
hazardous materials and, for some of the programs, making certain that
the carriers have appropriate levels of financial responsibility.
However, each of these programs are commonly administered independently
by separate agencies within a State.
These initiatives may have a significant bearing on the public
comments offered in response to this notice and on the ultimate
direction of any resulting rulemaking actions affecting Federal and
State registration and permitting of transporters and shippers of
hazardous materials. Each of the initiatives is discussed in the
appendix to this notice. The FHWA requests that commenters consider the
Alliance's report and recommendations, and the specific types of
information that carriers and shippers would be required to provide if
the Alliance's recommendations were adopted by the FHWA. Commenters are
encouraged to provide suggestions on whether the Alliance's recommended
program should be implemented and whether the programs described in the
appendix to this notice could be used to support the implementation of
any portion of the Alliance's program.
Administrative Notice
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practical. In addition to late comments, the
FHWA will also continue to file relevant information in the docket as
it becomes available after the closing date. Interested persons should
continue to examine the docket for new material.
Authority: 49 U.S.C. 5119; 49 CFR 1.48.
Issued on: March 20, 1998.
Gloria J. Jeff,
Deputy Administrator, Federal Highway Administration.
Appendix--Current Federal and State Initiatives Concerning Registration
and Permitting of Motor Carriers and Shippers
I. FHWA Rulemaking on Motor Carrier Safety Permits and the
Inspection of Vehicles Transporting Highway-Route-Controlled
Quantities of Radioactive Materials [49 U.S.C. 5109(a) and 5105(e)]
Section 5109(a), Motor Carrier Safety Permits, (originally
enacted as one of the provisions of section 8 of the HMTUSA)
provides that a motor carrier shall only transport, or cause the
transportation of, hazardous materials in commerce if the carrier
holds a safety permit issued by the Secretary and keeps a copy of
the permit, or other proof of its existence, in the vehicle. The
Secretary is required to prescribe by regulation the hazardous
materials and amounts to which the permit requirement applies.
However, the list of hazardous materials must include, at a minimum,
and in amounts established by the Secretary, the following:
(1) Division 1.1, 1.2, and 1.3 (class A or B explosives);
(2) liquefied natural gas;
(3) hazardous material the Secretary designates as extremely
toxic by inhalation; and
(4) a highway-route-controlled quantity of radioactive material,
as defined by the Secretary.
Section 5105(e), Inspections of Motor Vehicles Transporting
Certain Material, (originally enacted as section 15 of the HMTUSA)
directs the Secretary to issue regulations requiring that each motor
vehicle transporting a highway-route-controlled quantity of Class 7
(radioactive) material in commerce be inspected and certified as
complying with the Federal hazardous materials and motor carrier
safety laws and regulations. The Secretary may require the
inspections to be conducted by Federal inspectors or in accordance
with appropriate State procedures. The Secretary may allow self-
certification by motor carriers using employees that meet minimum
qualifications set by the Secretary.
[[Page 15374]]
On June 17, 1993, the FHWA published a notice of proposed
rulemaking (NPRM) to implement the requirements of 49 U.S.C. 5109
and 5105 (58 FR 33418). The FHWA proposed to amend part 397 of the
Federal Motor Carrier Safety Regulations (FMCSRs) by adding a new
subpart B, Motor Carrier Safety Permits. The notice proposed to
initially limit the safety permit program to the transportation of
the four classes of hazardous materials set forth in the statute,
with phase-in periods for Division 1.1, 1.2, and 1.3 materials
(Class A and B explosives) 3 and limiting the materials
considered extremely toxic by inhalation to those that meet the
criteria of Division 2.3, Hazard Zone A, or Division 6.1, Packing
Group I, Hazard Zone A (see 49 CFR 173.115 and 173.132) and are
transported in quantities of more than 1 liter (1.06 quarts). The
proposed permit procedures made extensive use of existing FHWA
programs, forms and procedures, and as a result, the agency proposed
not to assess permit fees. To obtain a permit, a motor carrier would
be required to submit a revised MCS-150 (Motor Carrier
Identification Report) to the Regional Director, Office of Motor
Carriers, for the region in which the motor carrier has its
principal place of business. Determinations on safety permit
applications would be based upon a safety fitness finding made
pursuant to 49 CFR part 385. A ``satisfactory'' safety rating would
be a prerequisite to the granting of a safety permit. A less than
``satisfactory'' safety rating would result in a denial of the
permit application. The FHWA would have the discretion to issue a
temporary safety permit (120 days) to an unrated motor carrier
pending a safety fitness determination. Safety permits would be
valid for three years and would be renewable. Reviews of the FHWA's
determinations on permit issuance would be handled pursuant to the
existing procedures applicable to safety rating reviews (49 CFR
385.15 and 385.17). The current safety rating notification letter
would be modified to serve as the safety permit. The letter would
bear a safety permit number, which would be the motor carrier's
identification or census number assigned by the FHWA when the motor
carrier submits the MCS-150 required by Sec. 385.21. Motor carriers
would be required to display this permit number on the shipping
papers and on the commercial motor vehicles used.
---------------------------------------------------------------------------
\3\ The proposed phase-in period was to be implemented as
follows:
Covered quantities of class A
Effective date and/or B explosives
Nov. 16, 1993......................... 454 kilograms (1,000 pounds) or
more.
Nov. 16, 1994......................... 227 kilograms (500 pounds) or
more.
Nov. 16, 1995......................... 25 kilograms (55 pounds) or more
With regard to the inspection requirements of 49 U.S.C. 5105,
the FHWA proposed that motor carriers transporting highway-route-
controlled quantities of Class 7 (radioactive) materials be required
to inspect each commercial motor vehicle used before each trip and
that a written certification by a qualified inspector be maintained.
It was proposed that these vehicles be inspected through the use of
the general inspection requirements contained in 49 CFR part 396,
``Inspection, Repair, and Maintenance,'' and the more detailed
inspection standards found in appendix G to 49 CFR subchapter B,
``Minimum Periodic Inspection Standards.'' The inspector
qualification requirements for the periodic inspection (specified in
49 CFR 396.19) would be used to ensure that inspectors are qualified
to perform the vehicle inspections.
The FHWA carefully reviewed the various registration and
permitting requirements of the Federal law and decided not to
proceed with further rulemaking action to implement the requirements
of 49 U.S.C. 5109 and 5105 until it had considered the final report
and recommendations of the Alliance for implementing section 5119.
This was considered the most effective way to satisfy all of these
related statutory requirements, as the Alliance's recommendations
would have a significant bearing on the implementation of the
Federal safety permit and inspection requirements.
II. Federal Hazardous Materials Registration and Fee Assessment Program
and the Hazardous Materials Emergency Preparedness Grant Program
Section 5108(a)(1) (originally enacted as one of the provisions
of section 8 of the HMTUSA) requires that each person transporting
or causing to be transported in commerce the following hazardous
materials must file a ``registration statement'' with the Secretary:
(1) Highway-route-controlled quantities of Class 7 (radioactive)
materials;
(2) More than 25 kilograms of Division 1.1, 1.2, and 1.3
(explosives) materials;
(3) More than 1 liter in each package of a hazardous material
which has been designated by the Secretary as extremely toxic by
inhalation;
(4) Hazardous material in a bulk package, container, or tank as
defined by the Secretary if the package, container, or tank has a
capacity of 13,249 or more liters (3,500 or more gallons) or has a
volume greater than 13.25 cubic meters (468 cubic feet);
(5) A shipment of at least 2,268 kg (5,000 pounds) (except in a
bulk packaging) of a class of hazardous material requiring a
placard.
In addition, section 5108(a)(2) provides the Secretary with
discretionary authority to require any of the following persons to
file a registration statement:
(1) A person transporting or causing to be transported hazardous
materials in commerce and not covered by section 5108(a)(1);
(2) A person manufacturing, fabricating, marking, maintaining,
reconditioning, repairing, or testing a package or container the
person represents, marks or certifies, or sells for use in
transporting in commerce hazardous material the Secretary
designates.
Paragraph (g) of section 5108 authorizes the Secretary to
establish, impose, and collect a fee for the processing of the
registration statement, as well as an annual fee.
Implementation of these requirements was delegated by the
Secretary to the RSPA. Federal registration of hazardous materials
offerors and transporters began in 1992 (57 FR 30620, July 9, 1992).
Federal registration is required of persons engaged in certain
activities that involve the offering or transporting of hazardous
materials in interstate, intrastate, or foreign commerce by highway,
rail, air, or water. Less than half of the current registrants have
identified themselves as highway carriers. The Federal registration
program has no preemptive effect upon State and local hazardous
materials registration programs.
The annual fee (currently $300) is used to fund grants to State
and Indian tribal governments for hazardous materials planning and
training purposes. The funds are allocated through the RSPA's
Federal Hazardous Materials Emergency Preparedness (HMEP) Grant
Program with the first grants awarded to qualifying State and Indian
tribal governments in 1993. By law, 75 percent of the Federal grant
monies awarded to the States is further distributed to local
emergency response and planning agencies. The FY 1995 funds helped
to provide: (1) Training for 121,000 emergency response personnel;
(2) approximately 500 commodity flow studies and hazard analyses;
(3) 4,500 emergency response plans updated or written for the first
time; (4) assistance to 2,150 local emergency planning committees;
and (5) 770 emergency exercises.
In cooperation with the Alliance's pilot program, the concept of
``one-stop shopping'' for Federal and State registration of motor
carriers was tested by the Public Utilities Commission of Ohio
(PUCO) and the RSPA. Motor carriers required to register with the
State of Ohio were provided with the option of also submitting the
Federal registration statement and fee to the PUCO for transmittal
to the RSPA. For the 1994-95 registration year (from July 1, 1994 to
June 30, 1995), approximately 200 persons registered in the Federal
program through the PUCO. During the 1995-96 registration year, the
number of persons choosing this option decreased sharply to 76
persons. Only 16 of the participants in the 1994-95 registration
year elected to use this process for the 1995-96 registration year.
The test was completed at the end of the 1995-96 registration year
and the results are being evaluated.
III. Performance Registration Information System Management (PRISM)
Performance Registration Information System Management is based
upon the Commercial Vehicle Information System (CVIS) feasibility
study mandated by 49 U.S.C. 31106--section 31106 was originally
enacted by section 4003 of the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914,
2144; December 8, 1991). Specifically, PRISM ties commercial motor
vehicle registration privileges to a motor carrier's safety
performance. For the first time, chronically unsafe motor carriers
risk losing their vehicle registration privileges if they prove
unable or unwilling to improve their operational safety levels after
a designated period. The project is a cooperative effort involving
the FHWA and five pilot States: Iowa (the lead State), Oregon,
Colorado, Minnesota, and Indiana.
Motor carriers are identified for inclusion in the PRISM
improvement process
[[Page 15375]]
(MCSIP--Motor Carrier Safety Improvement Process) through the
application of a carrier identification and prioritization algorithm
referred to as the Safestat Identification Algorithm (Safestat).
Safestat identifies ``At Risk'' motor carriers by producing a safety
score for every interstate motor carrier. Motor carriers are ranked
on a worst-first basis. Motor carriers with the lowest scores are
considered to be ``At Risk'' and are scheduled for a compliance
review (on-site visit), while motor carriers with less severe safety
scores receive ``warning letters.'' Once a motor carrier has been
identified for entry into the MCSIP, its safety performance is
monitored using a second algorithm called the Safestat Monitoring
Algorithm. The MCSIP process has been designed to provide numerous
opportunities for motor carriers to improve their safety
performance. Failure to improve safety performance, however, will
result in progressively more severe penalties leading eventually to
suspension or revocation of vehicle registration privileges.
The PRISM could be used to identify hazardous materials (HM)
carriers that are ``At Risk'' by modifying the Safestat
Identification Algorithm to include additional information about HM
motor carriers. In fact, it has been suggested that a separate
safety evaluation area relating to HM be included in the SafeStat
Identification Algorithm. Under this proposal, HM carriers that have
been identified for entry into the MCSIP process and continue to
score poorly may have their HM permits denied or suspended.
IV. Interstate Commerce Commission's (ICC) Carrier Registration and
Insurance Requirements
On December 29, 1995, the President signed the ICC Termination
Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803), which
eliminates the ICC and transfers certain motor carrier regulatory
functions from the ICC to the FHWA. The principal functions
transferred were the licensing and registration activities,
insurance tracking, Mexican motor carrier oversight, and
responsibilities for brokers, freight forwarders, and household
goods carriers. All past operating authority licenses and financial
responsibility filings remain valid, and all new applications and
financial responsibility filings are processed by the FHWA. The
ICCTA provides that registration generally remains in effect for up
to five years unless it is suspended, amended, or revoked. Reasons
for suspension or revocation may include unsafe operations, lack of
the required financial responsibility coverage, or failure to comply
with regulatory requirements.
The FHWA's motor carrier programs are intended to ensure that
motor carriers are properly identified, have adequate levels of
financial responsibility, and operate in a safe manner. Under the
present programs, for-hire motor carriers are registered and must
show proof of financial responsibility and familiarity with the
FHWA's safety regulations. The financial responsibility coverage of
for-hire motor carriers is continuously monitored. Policy pre-
expiration notices obtained from the insurance companies, as well as
internal audits, are used to determine compliance. Prior to an
insurance policy lapsing, the carrier is contacted. An enforcement
action, including litigation, can be used to stop the carrier from
operating without financial responsibility. A motor carrier's
operating authority can be revoked if financial responsibility is
not obtained. A similar procedure applies to motor carriers that
have been authorized to self-insure their operations.
The Single State Registration System (SSRS) program was created
to succeed the ``bingo card'' program administered by the ICC. The
SSRS program is a base-State system whereby a motor carrier
registers its interstate operating authority with, and provides
proof of financial responsibility coverage to one State (a base-
State) instead of multiple States. The base-State then distributes
the collected fees to other participating States in which the motor
carrier's vehicles operate. State participation in the System was
limited to those States participating in the bingo card program
prior to January 1991. Fee amounts were limited to those imposed
prior to November 1991, not to exceed $10 per vehicle.
Under the ICCTA, the SSRS will continue to operate. However, the
Department of Transportation (the Department) is required to
consolidate the current USDOT identification number system, the
SSRS, the former ICC registration system (including financial
responsibility registration) into a single, on-line Federal system.
The new system will contain information on, and identification of,
all foreign and domestic motor carriers, brokers, and freight
forwarders (as well as others required to register with the
Department) as well as information on safety fitness and compliance
with the required levels of financial responsibility coverage. The
Secretary may establish fees to fully operate the system, including
any personnel to support the overall registration and financial
responsibility filing system.
On August 26, 1996, the FHWA published an advance notice of
proposed rulemaking (ANPRM) requesting comments on the development
of the motor carrier replacement information and registration system
(61 FR 43816). The agency is preparing a notice of proposed
rulemaking for issuance in 1998.
[FR Doc. 98-8367 Filed 3-30-98; 8:45 am]
BILLING CODE 4910-22-P
