May 19, 2000

Dockets Office
Room PL-401
U.S. Department of Transportation
400 Seventh St., SW
Washington, DC 20590 0001

Re: In the matter of Docket No. RSPA-00-7126 (PDA-24(R)): Application by the Institute of Makers of Explosives for a Preemption Determination as to New Jersey Restrictions on Transportation of Blasting Caps with other Commercial Explosives

Dear Sir or Madam:

On behalf of the Hazardous Materials Advisory Council (HMAC), I am submitting comments in support of the Institute of Makers of Explosives (IME) application to preempt New Jersey (State) law and regulations prohibiting the transportation of blasting caps on the same motor vehicle with more than 5,000 pounds of other commercial explosives.

HMAC is an international, non-profit, educational organization devoted to promoting safety in the domestic and international transportation and handling of hazardous materials, substances and wastes. HMAC represents shippers, carriers of all modes, container manufacturers and reconditioners, emergency response and waste clean-up companies, and a variety of other companies and trade associations involved in the field of hazardous materials transportation. Members of HMAC will be affected by the outcome of this proceeding.

We believe that RSPA should be able to decide this issue on the basis of its "substantively the same as" preemption authority. The Federal Hazardous Materials Transportation Law (FHMTL) preempts non-federal requirements "about any . handling . of hazardous material" that are not substantively the same as the hazardous materials regulations (HMR). Given the HMR definition of "handling" at 49 CFR 176.2, which we agree with IME should be applied consistently to all modes of hazardous materials transportation, the New Jersey requirement clearly affects the handling of Class 1 materials. This fact, together with the fact that the New Jersey requirement prohibits an activity allowed by the HMR, makes this issue ripe for preemption on the basis of 49 U.S.C. 5125 (b)(1)(B). While IME offered an alternative preemption analysis based on 49 U.S.C. 5125(a)(2), we do not believe RSPA need consider this analysis if preemption is already reached under the "substantively the same as" standard.

Inasmuch as the New Jersey regulation purports to apply only to "off-highway" transportation, the most critical determination RSPA must make in this case is whether or not the transportation affected by N.J.A.C. 12:190-6.5(d) is "transportation in commerce" within the meaning of the FHMTL. The FHMTL requires RSPA to issue "regulations for the safe transportation of hazardous material in intrastate, interstate, and foreign commerce." [49 U.S.C. 5103(b).] These rules are the HMR. The State has adopted the HMR so there should be no dispute that the HMR applies to motor carriers and their vehicles that operate in New Jersey. [N.J.A.C. 16:49] A carrier is subject to the HMR when it transports hazardous materials in commerce in furtherance of a commercial enterprise. No one disputes that the IME petition was filed on behalf of motor carriers that are transporting Class 1 materials in furtherance of a commercial enterprise. Transportation is not in commerce when it takes place entirely on private property - a point acknowledged by the IME in its petition. Property is only regarded as "private" if public access is legally and actually restricted from the area where transportation occurs. The transportation of hazardous material is in commerce and subject to the HMR when that transportation follows or crosses a public way. The IME petition and supporting affidavits show that the New Jersey "off-highway" regulation is not limited to transportation occurring entirely on private property. Rather, the regulation applies to the transportation by motor vehicle of Class 1 explosives over the public roads of the State to consignee sites where these materials are unloaded/loaded prior to further commercial movement of the vehicle on those public ways. This is the very type of transportation Congress intended should be protected under the FHMTL.

There is no similar need to determine whether or not the challenged State statute provision - N.J.S.A. 21:1A-37.F. - affects "transportation in commerce" within the meaning of the FHMTL. The text of the New Jersey law contains no "off-highway" or any other qualifier that would limit the applicability of that law to transportation that was not subject to the HMR.

Conclusion

The New Jersey "off-highway" regulation affects motor carriers protected by the HMR that pick up or deliver Class 1 materials for off-site transportation. The State's statute is applicable to any kind of transportation, including that covered by the HMR. The State statute and regulation prohibit handling practices that are allowed by the HMR. RSPA should preempt these challenged provisions.

Certification

I certify that copies of this comment have been sent to Ms. Hilton and Mr. Cohen at the addresses specified in the Federal Register.

Sincerely,

Michael Morrissette
Vice President