HOUSE HIGHWAY AND HAZMAT REAUTHORIZATION BILL
Below please find a summary from Association Counsel Rick Schweitzer regarding the US House of Representatives Highway and Hazmat Reauthorization Bill, H.R.7.
As you can see from Rick's memo there are several items in the bill that are very much in line with several of our initiatives. If you have a legislative or government affairs office please forward this information to them so that they may encourage passage of the bill with these provisions.
This week Rep. John Mica (R-FL), Chairman of the House Transportation and Infrastructure Committee, introduced. H.R. 7, a bill to reauthorize the federal-aid highway and transit programs and to amend the Hazardous Materials Transportation Act and reauthorize its related regulatory and funding programs. The bill includes a number of provisions favorable to COSTHA members, including one provision we sought to reconsider the continued regulation of pharmaceuticals, cosmetics and other low-risk low-volume products.
The House Transportation and Infrastructure Committee considered over 80 amendments to the bill in a markup that started yesterday morning and ended this morning at 3:00 a.m. Rep. Mica has indicated the bill will go to the House floor for a vote the week of February 13, 2012.
The current highway program is authorized for funding through March 31, 2012. There are still a number of issues, primarily related to taxes and funding, that present significant obstacles to reconciliation of the House and Senate versions of the highway bill. Thus, passage of the overall bill is not certain for this year.
Rulemaking Requirements. The House bill places a number of new requirements on the Department of Transportation when developing final rules on hazardous materials transportation. In particular, DOT must make all preliminary and final determinations based on evidence and consider, in addition to other applicable considerations, the following: the legal authority for the rule, statutory requirements and deadlines, the specific nature and significance of the problem, the priority of addressing those risks compared to other matters, and alternatives to rulemaking. The provision would also require a more substantial cost-benefit analysis, including the effect on jobs, and require the agency to comply with the Administrative Procedure Act.
Inspections for Vehicles Transporting Radioactive Materials. H.R. 7 would require a rule mandating inspection and certification before each use of all vehicles transporting a highway-route-controlled quantity of radioactive material in commerce. But states would be prohibited from requiring additional inspections.
Hazmat Training Grants. The bill eliminates a program to provide grants to nonprofit organizations to train instructors to train hazmat employees and for those instructors to train hazmat employees.
Hazmat Fees. The bill eliminates the minimum registration fee of $250 for hazmat shippers and carriers but keeps the maximum fee at $3,000. In determining the amount of a registration fees, the bill would also bar PHMSA from considering whether a person has or is likely to apply for a special permit or approval, and prohibit PHMSA from establishing a separate fee in order to apply for or receive a special permit or approval.
Motor Carrier Safety Permit Review. The legislation directs DOT to conduct a review of the motor carrier safety permit program to consider the overall fairness of the program and to evaluate the number of permits that have been issued, denied, revoked, or suspended for each registration cycle since the inception of the program by the type of covered hazardous material transported and the reasons for those actions.
Wetlines Rulemaking. H.R. 7 would prohibit PHMSA from issuing a final rule to prohibit the transportation of flammable liquids in the external piping of cargo tank trucks (the “wetlines” rule), and instead would require the agency to contract with an objective non-profit organization to conduct a peer-reviewed study of such transportation. The study would attempt to quantify the number of wetlines incidents over a 10-year period; identify various alternatives to loading and transporting flammable liquids in cargo tank wetlines; examine the costs and benefits of each alternative; and identify existing obstacles to implementing each alternative.
Ethyl Alcohol Regulation. The bill would require PHMSA to conduct a study on whether it is necessary to continue to designate any amount or form of finished pharmaceutical, finished cosmetic, or similar product containing ethyl alcohol as a hazardous material under section 5103(a) of title 49, United States Code and to report back to Congress within one year.
The study conducted under subsection would evaluate the history, severity, and costs of any incidents in transporting such products; the risk posed by such products in commercial packaging in current use in transportation; the risk associated in transporting the products without any specific packaging required by any applicable special permit or regulation; the costs to the industry of designating the products as hazardous material, including the cost of regulation, as compared with the costs of incidents that have occurred or are probable with regard to the products; and include a summary of comments from industry stakeholders and the public on whether there is a need for continued designation of such products as hazardous material.
Electronic Shipping Papers. The bill would require PHMSA to conduct one or more pilot projects on using electronic shipping papers. Within three years of enactment, PHMSA would to report to Congress on the impacts on safety and the performance of each system evaluated under that project and a cost-benefit analysis for each mode of transportation and whether the agency recommends incorporating electronic shipping papers into the Hazardous Materials Regulations.
Preemption. The bill would strengthen the preemption of inconsistent state or local hazmat transportation requirements by preempting those state or local requirements that are, as applied or enforced, an unreasonable burden on commerce.
Inspections and Opening Packagings. The bill includes language requested by the Interested Parties Group that amends the statutory authority of DOT to open, inspect and remove from transportation certain hazmat packagings en route. The bill would limit the ability to open the package to undeclared hazardous materials. The new language requires notice to the offeror, carrier, or other party of the decision to stop the shipment and/or open the package, and procedures for safe and expeditious resumption of transportation of perishable hazardous material, including radiopharmaceuticals and other medical products, that may require timely delivery due to life-threatening situations.
Civil Penalties. The minimum civil penalty of $250 for violations of the HMRs would be eliminated. In addition, the bill provides that a carrier may not be held liable for violations of the statue or the HMRs stemming from pre-transportation functions that are performed by another person unless the carrier has actual knowledge of a violation.
Special Permits. The bill also would require a regulation (issued in accordance with the Administrative Procedure Act) to establish procedures and criteria for considering applications for a special permit. The procedures and criteria prescribed must provide adequate consistency, predictability, and transparency in making the determinations to issue, modify, or terminate a special permit.
In addition, PHMSA could not deny an application for a modification or renewal of a special permit or an application for party status to an existing special permit for the sole reason that the applicant has a hazardous material out-of-service percentage of greater than the national average, according to the safety and fitness records maintained by the Federal Motor Carrier Safety Administration.
Also, within three years PHMSA would have to complete a rulemaking to incorporate into regulation any special permit that concerns a matter of general applicability, has future effect, is consistent with hazardous material safety, and has been in continuous effect for more than a 6-year period as of the date of enactment.