Legislative Priorities Regarding Hazardous Materials

GAWDA provides input into regulatory programs.

Now that Congress has passed a budget and appropriations bill for this fiscal year, another significant question is whether the new-found bipartisanship might extend to the federal-aid highway program and the hazardous materials transportation funding and regulatory program. The current highway bill is scheduled to expire on September 30, 2014; the existing program was funded for only 27 months as Congress could not agree on a long-term bill with any increase in infrastructure spending or the taxes to support a spending increase.

The highway bill historically has not involved partisan politics; both parties have viewed it as a necessary program to invest in infrastructure spending for the benefit of the country.

When Congress reauthorizes the highway program, it usually will reauthorize the regulatory authority and funding for the hazardous materials transportation program as well. Amendments to the Hazardous Materials Transportation Act, or HMTA, are typically a separate title in the highway reauthorization legislation. This gives GAWDA members a chance to provide input on how to revise congressional mandates to the Department of Transportation and other federal agencies so as to facilitate commercial hazmat transportation.

GAWDA advises Congress primarily through our membership in the Interested Parties for Hazardous Materials Transportation, a coalition of over 40 trade associations representing companies that ship or carry hazardous materials. The coalition includes associations representing trucking, rail, air and water carriers, as well as manufacturers in a variety of industries whose products are regulated as hazardous materials.

The Interested Parties meet each month in Washington, D.C. to exchange information on new legislative, regulatory and judicial developments involving hazmat shipments. We also formulate policy positions and present them to Congress, federal agencies and the courts.

As part of the HMTA reauthorization process, the Interested Parties develop a summary of the legislative issues identified by the Interested Parties and listed by their priority. Each of the member associations gets to vote on our top priorities, and the votes are tabulated to establish a joint list of legislative priorities, in order of importance, for the Interested Parties members.

The Interested Parties list of Legislative Priorities includes the following:

  1. Hazardous Materials Safety Permits — Hazmat carriers are at risk of being shut down because the program lacks adequate due process. The scope of the program has been greatly expanded without going through notice and comment rulemaking. We want a date certain for a rulemaking to reform the program.
  2. CDL Driver Background Checks — To address multiple background check requirements, the coalition proposes that the Department of Homeland Security should require fingerprint-based background checks, using the Transportation Worker Identification Credential, only for drivers that transport security-sensitive hazardous materials.
  3. Inspection of Undeclared Hazardous Materials Packages — A recent final rule allows DOT to open packages that are in violation of the hazmat regulations and goes far beyond the need to investigate undeclared shipments; an inspector’s ability to search, open or remove from transportation packages of concern, should be limited to those that the inspector believes contain “undeclared” hazardous materials.
  4. Responsibility for Employee Training — Congress should delete the word “uses” from the definition of “hazmat employer” in order to clarify which person is responsible for training hazmat employees.
  5. Regulation of Loading/Unloading/Handling of Hazmat — A person who “loads, unloads or handles hazardous materials” in transportation should be considered a hazmat employee, to clarify who is subject to DOT’s regulatory authority.
  6. Preemption of State and Local Requirements — DOT’s preemption authority over state and local regulations should be bolstered and include security background checks and security credentials.
  7. Hazmat User Fees — For several years, the Administration has proposed a “user fee” on applicants for special permits and approvals. Congress should specifically preclude PHMSA from establishing fees to process SP/A applications.
  8. Assignment of Violations to Appropriate Party — Congress should make clear that carriers or offerors should not be held liable for violations that result from activities that are performed by another party in the supply chain unless the carrier or offeror has actual knowledge of a violation.
  9. International Representation — Congress should confer upon PHMSA the responsibility for participating in forums that create uniform standards for the international transportation of hazardous materials (dangerous goods).

10.  FMCSA Compliance for Motor Carrier Registering with PHMSA — Motor carriers transporting hazardous materials required to register with PHMSA should also demonstrate compliance with FMCSA requirements by recording a DOT motor carrier registration number on the PHMSA application. DOT motor carrier registration numbers should be obtained for intrastate as well as interstate carriers.

11.  Notification of Parties in Opening Hazmat Package — DOT should only notify a carrier and offeror, but not other parties related to the package (e.g., packaging manufacturer), that a package has been removed from transportation.

12.  Wetlines — PHMSA has reopened the issue of purging all flammable liquids from the exterior piping and valves of a cargo tank truck (“wetlines”). DOT should be precluded from issuing a final wetlines rule without additional congressional authority.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.