States faced an unpleasant prospect in 1990-that their permit and registration programs for carriers of hazardous materials would be wiped out—preempted by a potentially weaker federal law. At the urging of the trucking industry, which wanted to escape the burden of over 80 programs in 42 states, Congress was on the verge of doing away with state programs and replacing them with a one-size-fits-all federal program. Safety through uniformity was the favored approach. To protect the state programs, state negotiators made the best deal available at the time. They agreed to a working group of state officials that would craft uniform forms and procedures for hazardous materials transportation permits and registration using the best practices of existing state programs. However, part of the deal was that the new state-developed uniform program would preempt existing state programs. It's essentially preemption on state terms to save an existing and important area of state regulation.
The Uniform Program was recommended by a Congressionally mandated (49 USC 5119) working group of state and local government officials that was organized and staffed by the National Conference of State Legislatures (NCSL) and the National Governors Association. The recommendation reflects extensive review and consideration of state and local programs, as well as industry and environmental concerns. The Uniform Program developed by the working group effectively balances the health and safety concerns of state officials with the uniformity elements sought by industry.
The Uniform Program
The essence of the program is a base state system whereby a motor carrier of hazardous materials obtains credentials in the state the carrier travels the most miles. These credentials are good in all participating jurisdictions. A benefit of the program, if adopted, is that a state can now more carefully evaluate fewer trucking companies because the burden is spread among the member states. States may choose to regulate all hazardous materials or a subset like hazardous waste. The program consists of three components-registration, permitting, and hazardous/radioactive waste disclosure. A governing board, made up of participating states, oversees the program to ensure consistent program standards and to build trust among states.
The four states (Minnesota, Nevada, Ohio and West Virginia) that pilot tested the reciprocal program in 1994-95 found it to be administratively workable and an effective way to improve safety. Safety is improved because trucking companies find compliance easier when rules and regulations are more similar state to state. In addition, the administrative burden of applicant companies is cut since one application will satisfy all participating states. Michigan and Oklahoma have also joined the program.
Additional States Needed
More states are needed to strengthen the reciprocity aspects of the program and to create a national network. Several state legislatures have studied the program for possible enactment. Since 1994, NCSL has officially supported the Uniform Program, meaning three-fourths of states represented by NCSL have agreed to this position. It reads:
"NCSL supports the recommendations of the Alliance for Uniform Hazmat Transportation Procedures to institute federal standards to facilitate uniformity in state permitting and registration requirements. These recommendations reflect extensive review and consideration of state and local programs, as well as industry and environmental concerns. The consensus recommendations accommodate, to the extent possible, specific public and private sector concerns. NCSL supports the work done and the program itself. NCSL urges the U.S. Department of Transportation to provide adequate incentives to states to participate in the program, but a state should not be forced into participation by either the Department or Congress."
At the federal level, the Federal Motor Carrier Safety Administration is charged with implementing the federal rule for this program. It must implement the Uniform Program recommended by the working group if 26 states adopt it, but they have indicated a lower threshold of 18-20 might be acceptable for moving ahead with a rule. This agency is generally supportive of the Uniform Program and is closely watching what develops in the states. FMCSA is currently funding the centralized aspects of the Uniform Program.
The recommended program did not mandate a fee structure-states can still assess fees as they decide as long as the revenue is used for hazardous materials transportation activities and they don't interfere with interstate commerce. Fees must also meet the fairness test under the dormant commerce clause found in Evansville (92 S. Ct. 1349) (1972). This test says a fee is fair if it is based on a fair approximation of use of the state facilities, is not excessive in relation to benefits conferred, and does not discriminate against interstate commerce. "Flat tax" fees assessed per vehicle or per trip per vehicle have been preempted because they fail the "internal consistency" test of the commerce clause as an undue burden on interstate commerce. Essentially, these fees are not equitable to nationwide carriers.
To address these fee issues, the Alliance has recommended a fee structure that double apportions fees based on miles and hazmat activity.
In closing, this program is recommended because it contains the best existing practices in the states to ensure safety, it preserves state fee authority, it's been proven to work in the five participating states, and it staves off preemption by a one-size-fits-all federal program.