[Federal Register Volume 62, Number 183 (Monday, September 22, 1997)]
[Rules and Regulations]
[Pages 49560-49567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25065]
[[Page 49559]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Parts 171 and 173
Hazardous Materials in Intrastate Commerce; Delay of Compliance Date,
Technical Amendments, Corrections and Response to Petitions for
Reconsideration; Final Rule
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 /
Rules and Regulations
[[Page 49560]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 and 173
[Docket HM-200; Amdt. Nos. 171-154 and 173-262]
RIN 2137-AB37
Hazardous Materials in Intrastate Commerce; Delay of Compliance
Date, Technical Amendments, Corrections and Response to Petitions for
Reconsideration
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule, delay of compliance date, technical amendments,
correction and response to petitions for reconsideration.
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SUMMARY: On January 8, 1997, RSPA published a final rule which amended
the Hazardous Materials Regulations (HMR) to expand the scope of the
regulations to intrastate transportation of hazardous materials. The
intended effect of the January 8, 1997 rule is to raise the level of
safety in the transportation of hazardous materials by applying a
uniform system of safety regulations to all hazardous materials
transported in commerce throughout the United States. In this final
rule, RSPA is providing one additional year, until October 1, 1998, for
compliance, responding to petitions for reconsideration and correcting
errors in the January 8, 1997 final rule. The minor editorial changes
made by this final rule will not impose any new requirements on persons
subject to the HMR.
DATES: Effective dates: This final rule is effective October 1, 1997.
The effective date for the final rule published under Docket HM-200 on
January 8, 1997 (62 FR 1208) remains October 1, 1997.
Compliance dates: Voluntary compliance with the January 8, 1997
final rule has been authorized beginning April 8, 1997. Voluntary
compliance with this final rule is authorized as of September 22, 1997.
Mandatory compliance with the HMR by intrastate motor carriers of
hazardous materials is required beginning October 1, 1998, except that
intrastate motor carriers of hazardous waste, hazardous substances,
marine pollutants, and flammable cryogenic liquids in portable tanks
and cargo tanks are already subject to the HMR.
FOR FURTHER INFORMATION CONTACT: Diane LaValle or Deborah Boothe, (202)
366-8553, Office of Hazardous Materials Standards, RSPA, 400 Seventh
Street, SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On January 8, 1997, RSPA issued a final rule under Docket HM-200
[62 FR 1208]. The final rule amended the HMR by expanding the scope of
the regulations to intrastate transportation of hazardous materials in
commerce. In the final rule, RSPA created or amended exceptions for
agricultural operations (Sec. 173.5), materials of trade (Sec. 173.6),
non-specification packagings used in intrastate transportation
(Sec. 173.8) and minimum qualifications for registered inspectors
(Sec. 180.409).
Since publication of the final rule, RSPA has discovered minor
errors in Sec. 173.6 (materials of trade) that are being corrected in
this document. In response to a petition for reconsideration, RSPA is
also amending Sec. 173.6 to include provisions that materials of trade
may include Division 2.2 materials in permanently installed cylinders
or tanks built to the American Society of Mechanical Engineers (ASME)
standards. RSPA is denying another part of this petition for
reconsideration and two other petitions for reconsideration of the
final rule.
To offset burdens that may fall on intrastate motor carriers and
their shippers who were not previously subject to requirements
comparable to those in the HMR because of State exceptions, RSPA is
providing an additional year for compliance. RSPA is adding to
Sec. 171.1 the wording ``except that until October 1, 1998, this
subchapter applies to intrastate carriers by motor vehicle only in so
far as this subchapter relates to hazardous waste, hazardous
substances, flammable cryogenic liquids in portable tanks and cargo
tanks, and marine pollutants.'' This will ensure that the final rule
will be printed in the 1997 edition of the Code of Federal Regulations
while still providing additional time for compliance. It is important
for people who choose to voluntarily comply to have up-to-date
information on these requirements. However, RSPA concludes that an
additional year is appropriate for these persons to learn and come into
compliance with the requirements in the HMR.
In addition, the July 1, 1998 date set forth in Secs. 173.5(a)(2)
and 173.8(d)(3) as the deadline for States to enact legislation that
authorizes exceptions for agricultural operations and non-specification
cargo tanks is being changed to October 1, 1998, for consistency with
the mandatory compliance date of the final rule. This will eliminate
the potential problem of requiring compliance before a State has the
opportunity to enact legislation to allow carriers in that state to
take advantage of the exceptions.
II. Materials of Trade (Sec. 173.6)
RSPA is making several changes to Sec. 173.6, as follows:
As provided by Sec. 173.6, only certain hazardous materials are
authorized the materials of trade exception. Although proposed in the
March 20, 1996 supplemental notice of proposed rulemaking (SNPRM) [61
FR 11484], the final rule inadvertently omitted Division 5.2 (organic
peroxide) materials from the list. Therefore, Division 5.2 materials
are added to the list in Sec. 173.6(a)(1) and are authorized under the
materials of trade exception.
A reference to regulations of the Occupational Safety and Health
Administration (OSHA) applicable to construction activities (29 CFR
1926.152) was inadvertently omitted in the requirements for packaging
gasoline (Sec. 173.6(b)(4)). These OSHA requirements address storage
and use of gasoline at construction sites and authorize up to one-
gallon capacity plastic containers for gasoline. RSPA believes that the
material of trade exception should also authorize these small plastic
safety cans for the transportation of gasoline to avoid the transfer of
gasoline from one container to another. Therefore Sec. 173.6(b)(4) is
revised to reference the OSHA standard in 29 CFR 1926.152(a)(1).
Additionally the reference to 29 CFR 1910.106 is expanded to identify
the specific paragraph that references the OSHA safety can standard.
The aggregate gross weight of all materials of trade on board a
vehicle is limited by Sec. 173.6(d). This paragraph erroneously refers
to ``permanently mounted tanks'' authorized by paragraph (a)(1)(iii) of
this section. Therefore, Sec. 173.6(d)is revised to refer to
``materials of trade authorized under paragraph (a)(1)(iii).''
The last sentence in Sec. 173.6(d) is placed in new paragraph (e)
for clarity. New paragraph (e) clarifies that materials of trade may be
transported on a motor vehicle with other hazardous materials and still
be authorized exceptions.
Phillips Petroleum Company (Phillips) petitioned that the materials
of trade exception be expanded to authorize transportation of Division
2.2 (non-flammable gas) materials in non-specification permanently
mounted cylinders. Phillips stated that these cylinders for compressed
air are
[[Page 49561]]
constructed to the American Society of Mechanical Engineers (ASME)
Pressure Vessel Code and are typically less than 70 gallons water
capacity. Phillips further stated that since the air cylinders do not
meet DOT specifications, they must be depressurized before they can be
transported and then must be repressurized at the next job site before
use.
RSPA agrees that the materials of trade exception may properly be
expanded to include permanently installed tanks built to the ASME
Pressure Vessel Code containing non-liquefied non-flammable compressed
gases with no subsidiary hazard. This provision has been adopted into
Sec. 173.6(a)(1)(iv).
Phillips also petitioned RSPA to authorize the transportation, as
materials of trade, of DOT exemption cylinders containing compressed or
flammable gas samples. Several exemptions are in existence authorizing
such transportation, and Phillips stated that these cylinders have been
used for many years and have a proven track record of safety and
reliability.
As provided in the final rule, Sec. 173.6(b)(5) authorizes
transportation of a cylinder or other pressure vessel containing a
Division 2.1 or 2.2 material, conforming to the packaging,
qualification, maintenance, and use requirements of this subchapter, as
a material of trade. A cylinder manufactured under the terms of an
exemption is an authorized packaging under the provisions of the
subchapter. Therefore, no regulatory change is necessary to authorize
such transportation and, accordingly, this part of Phillips's petition
is denied.
III. Non-Specification Packagings Used in Intrastate Transportation
(Sec. 173.8); Minimum Qualifications for Inspectors and Testers
(Sec. 180.409)
National Tank Truck Carriers, Inc. (NTTC) petitioned RSPA to
reconsider its authorization for continued use of non-specification
cargo tanks by intrastate carriers transporting flammable liquid
petroleum products. NTTC stated that the exceptions provided in the
final rule for the continued use of these non-specification cargo tanks
create a patchwork regulatory system that cannot be enforced and do not
provide an ``equivalent'' level of safety. They also provided scenarios
that, in NTTC's opinion, could create difficulties for enforcement and
carrier personnel to determine compliance with the inspection and
testing requirements of Part 180.
Two rebuttal letters were received in response to NTTC's petition
for reconsideration. The Petroleum Marketers Association of America
stated that States have traditionally been responsible for public
safety and allowing the States to continue to exercise their rational
judgement in packaging of certain hazardous materials in intrastate
commerce does not endanger public safety. The Petroleum Transportation
& Storage Association also opposed NTTC's petition and stated that NTTC
completely misstates the effect HM-200 will have on the regulated
community and public safety in general.
RSPA denies NTTC's petition. The situation described by NTTC
regarding the unfair advantage given to intrastate motor carriers by
allowing them to use non-specification cargo tanks is not new to the
regulated industry. In fact, HM-200 will eventually lead to the
elimination of non-specification cargo tanks and their replacement with
DOT specification cargo tanks in the same manner the older MC 300
series cargo tanks are being removed from service, some of which are
more than 25 years old.
The continuing use provision recognizes that a State may assume the
responsibility on behalf of its citizens to allow the use of non-
specification cargo tanks to transport liquid fuels in that State under
specified conditions. In an effort to minimize the impact of a total
replacement of the intrastate cargo tank fleet for small businesses in
these States, RSPA decided to provide for the continued use of these
non-specification cargo tanks. This provision applies only in those
States that have or will provide a specific provision for their use by
State law or regulation. No new non-specification cargo tanks used to
transport flammable liquid petroleum products may be placed in service
after October 1, 1998. In addition to any operational requirements
placed on their use by the States in which they are operated, they are
only authorized for continued operation in conformance with the
inspection and test requirements of Part 180 after July 1, 2000. RSPA
believes that the inspection and test requirements will provide an
incremental safety increase in the operation of these cargo tanks.
RSPA denies NTTC's petition opposing the exception provided for
registered inspectors. Educational requirements are waived for a person
who only performs annual external visual inspections and leakage tests
on cargo tank motor vehicles owned or operated by that person. These
cargo tank motor vehicles must have a capacity of less than 3500
gallons and be used exclusively for transportation of flammable liquid
petroleum fuels. The inspectors must register with DOT advising that
they are performing inspections, thereby providing the Federal Highway
Administration (FHWA) the identity and location of such inspection and
testing facilities in order that they be included in FHWA's compliance
program.
IV. Agricultural Operations (Sec. 173.5)
A petition bearing the names of 45 agricultural retailers and
associations requested that RSPA revise Sec. 173.5 ``to incorporate
language that will provide an exception from the HMR for both farmers
and retailers who transport agricultural products from retail-to-farm,
between fields, and from the farm back to the local source of supply.''
These parties stated that RSPA had failed to provide adequate relief
from the HMR's requirements ``for both farmers and retailers.'' (In a
separate, letter, one of these agricultural organizations stated that:
``Arizona members stand firmly behind current safety regulations and
have no reason to adopt exceptions in our state, however, we encourage
our state counterparts to have the opportunity to respond to their
local needs.'')
The petition asserted that farmers and retailers should not be
forced to comply with the HMR for the ``few brief periods during the
year'' that agricultural shipments take place: a 45-day period for
planting crops and other periods in the fall when fertilizer is
applied. Included with the petition was an estimate that it will cost
each retail facility, assumed to handle 100 loads of agricultural
products a day during the 45-day planting season, a total of $12,300
per year to determine whether the HMR apply (i.e., whether the
agricultural product is a hazardous material) and, for those that are
covered, comply with the HMR's shipping paper and placarding
requirements. According to these parties, HM-200 does not achieve the
goal of uniformity because movements of agricultural products from
retail-to-farm will be subject to the HMR, but movements of the same
products between fields of the same farm are excepted.
On this basis, these petitioners appear to seek a broad exception
from the HMR for any retailer or farmer that transports agricultural
products ``from retail-to-field, between fields, and from the farm back
to the local source of supply,'' that would be applicable throughout
the United States, and not just in those few States that allow
exceptions for movements of agricultural products.
[[Page 49562]]
The literal wording of the exception requested in this petition would
apply to all hazardous materials transported by any retailer that made
a single delivery of a hazardous material to a farmer. Under this
interpretation, a company that delivers gasoline to a farm, for use in
farm machinery, could claim that all its deliveries fit under the
requested exception, even though other deliveries would be to
businesses having no direct connection with agriculture.
In response to this petition, opposing comments were submitted
jointly by the American Trucking Association, the Association of Waste
Hazardous Materials Transporters, and NTTC. These organizations
questioned whether agricultural retailers could or should be
distinguished from other shippers and carriers of hazardous materials,
stating that they did not believe agricultural retailers deserved
``special treatment.'' These organizations also referred to:
--The availability of educational materials to foster understanding of
the HMR and compliance, furnished by RSPA and other industry
organizations.
--The many crop protection products which are EPA-designated
``hazardous substances'' and, accordingly, have been subject to the HMR
in intrastate shipments since 1980, so that many agricultural retailers
should already be complying with the HMR in shipping or transporting
these hazardous substances.
--The inclusion among the petitioners of retailers and organizations in
many States that have already adopted the HMR as State law and have not
provided broad exceptions for agricultural operations, implying that
these petitioners seek to ``rollback'' existing regulations.
--Questions about whether the petitioners estimates of the costs of
compliance are valid and actually: (1) apply in those States where the
transportation of agricultural products is already subject to the HMR;
(2) consider existing inventory and delivery systems; and (3) account
for the information provided to the retailer when it receives a
shipment of hazardous materials from its supplier.
--The absence of any condition or qualification (distance, type of
road, public access, etc.) that might limit public exposure to risks
involved in the transportation of hazardous agricultural products.
Both the petition for reconsideration and the responding comments are
set forth in full at the end of this section (IV).
RSPA denies the petition for reconsideration because it believes
that the broad exception requested would eliminate or preclude
application of many of the basic requirements that are designed to
promote a safe transportation system. Shipping papers, labels,
placards, and identification number displays are the basic elements of
a hazard communication system that is recognized throughout the United
States and the world. The hazard communication system provides basic
information to emergency responders so that they can better respond to
hazardous materials incidents and protect themselves, the public, and
the environment. The chemical and physical hazards presented by
hazardous materials are the same whether being transported in
interstate or intrastate commerce by an agricultural supplier.
Hazardous materials, such as gasoline, which is an extremely flammable
liquid, and anhydrous ammonia, which is poisonous when inhaled, are
frequently transported in both interstate and intrastate commerce by
agricultural retailers. Hazardous materials releases can occur
regardless of whether a motor carrier is a common carrier or a private
carrier, such as an agricultural retailer. During a recent hearing, a
Senator reminded RSPA of an incident in which six people were killed
and 76 hospitalized as a result of a release of agricultural grade
anhydrous ammonia from cargo tank in Houston, Texas.
Lack of adequate hazard information at the site of an incident can
result in inappropriate responses. In some cases, an emergency
responder may not realize a hazardous material is involved and not take
appropriate action. In other cases, unnecessary actions could be taken
that result in significant disruptions to transportation corridors and
unnecessary evacuations until sufficient information is obtained about
the commodity being transported. RSPA believes that the safe
transportation of hazardous materials cannot be achieved without a
hazard communication system that provides the minimum information
necessary to the carrier, enforcement personnel, and emergency
responders when hazardous materials are involved in transportation
incidents.
In adopting Sec. 173.5, RSPA provided significant relief to farmers
who transport hazardous materials. Taking into account the limited
potential for high-exposure incidents, RSPA completely excepted from
coverage of the HMR a farmer's transportation of an agricultural
product (other than a Class 2 gas) over local roads between fields of
the same farm, so long as the movement conforms to State requirements.
RSPA also excepted a farmer from certain compliance requirements in the
HMR involving training and emergency response (Part 172, Subparts G and
H), when the farmer transports certain quantities of agricultural
products to or from his or her farm, over distances up to 150 miles
from the farm, if in conformance with State requirements. In the latter
situation, RSPA did not provide exceptions from the HMR's other
requirements, such as those for packaging, shipping papers, and
placarding. Beyond a farmer's short trips between fields of a single
farm over local roads, RSPA does not believe there is justification for
waiving these fundamental requirements. Certain quantities of
agricultural products that are hazardous materials remain eligible for
the ``materials of trade'' exception in Sec. 173.6, and non-
specification packagings used by an intrastate carrier of agricultural
products may also be authorized under the exception from the HMR's
requirements in Sec. 173.8.
Packaging requirements ensure that hazardous materials can survive
normal transportation conditions, by assuring that the packaging
material is compatible with its contents and that the container has
been designed, constructed and closed in such a manner to prevent
failure and an unintentional release of the hazardous material.
Shipping papers, placards, and other forms of hazard communication are
essential to provide emergency responders with the minimum information
necessary to protect themselves, the public, and the environment, when
an incident occurs during the transportation of hazardous materials. In
the SNPRM, RSPA expressed its concern over ``the potential for the lack
of uniform communication and miscommunication to emergency responders
in any location where they may encounter hazardous materials
incidents.'' Under the exception requested by the petitioners, vehicles
transporting agricultural products that are hazardous materials would
not be required to bear placards; an emergency responder would have to
assume that any unplacarded vehicle contained hazardous materials if it
had an in-State license plate, no matter where the vehicle was found
within the State.
The petitioners represent many types of commercial businesses, of
varying sizes, that routinely offer and transport hazardous materials.
Many of them are already subject to the HMR. Five companies listed in
the petition that are interstate carriers have combined gross sales of
more than $11 billion per year
[[Page 49563]]
and combined annual profits of more than $1 billion per year. All of
the hazardous materials carried by any interstate carrier (not just
those shipments between States) are already covered by the HMR. Other
petitioners may operate within one of the many States that have adopted
the HMR without exceptions for agricultural products, and the HMR
requirements already apply to them. Still others transport agricultural
products that are hazardous substances, such as anhydrous ammonia and
many pesticides. That transportation has been subject to the HMR for 17
years, even within those States that have agricultural exceptions.
For these types of businesses, HM-200 does not impose new
regulations, as the petition suggests. RSPA believes that Congress'
intent, in mandating the extension of the HMR to all intrastate motor
carriers, was to bring the remainder up to the same standard of safety,
and not to eliminate the existing application of the HMR where it
already exists. The latter would be the effect of the exception sought
in the petition.
The petitioners' cost estimates appear overstated, if only for the
fact that many retailers are already subject to the HMR, so that any
marginal costs in evaluating shipments, adding necessary information to
bills of lading (or other documentation that already exists), and
applying placards would be minimal. It does not seem reasonable that
retailers' employees would need an additional ten minutes, 100 times a
day, throughout a 45-day period, to determine if the agricultural
product being shipped is a hazardous material. As the opposing comment
noted, all necessary information concerning an agricultural product,
including whether it is hazardous, is already provided on documents
that accompany the product, including shipping papers and material
safety data sheets, when an agricultural retailer receives it from its
supplier. In addition, packaged hazardous materials are marked with the
shipping name and identification number of the hazardous materials and
most display a hazard warning label. According to the requirements of
the Occupational Safety and Health Administration, markings and
labeling required by the HMR must remain on packages of hazardous
materials until they have been emptied. Therefore, packages of
hazardous materials in an agricultural retailer's storage area should
already display the markings and labels required by the HMR.
A retailer should not have to apply new placards for each load of
agricultural products subject to the HMR, as petitioners' cost
estimates assume. Placards can easily be reused or permanently mounted
on vehicles. The estimated cost of $1,575 per year for placards, for 25
loads per day, amounts to several times the cost of using permanently-
mounted changeable metal placard sets on 25 separate vehicles (if that
many separate vehicles were needed for the 25 loads per day assumed to
require placarding), at approximately $120 per vehicle (4 sets per
vehicle), when the cost of metal placards is amortized over their
expected ten-year life.
In the normal course of their business activities, retailers
routinely prepare documents in connection with sales and deliveries of
their agricultural products, such as invoices, bills of lading, and
delivery receipts, many of which are generated by computer. Even in
those situations where a permanent ``laminated'' shipping paper may not
be feasible, any of these existing documents can be used as the
shipping paper required by the HMR. Once standard forms or computer
programs are prepared, there should be little or no additional cost to
include any additional information required by the HMR on these
documents.
Even using the petitioners' estimates, which RSPA finds to be
excessive, given the discussion above, the total annual projected cost
of $12,300 for a retailer that handles 100 loads per day, over a 45-day
period, works out to less than $2.75 per load. This appears to be a
small fraction of the sales price of a load of agricultural products
that may consist of thousands of pounds of fertilizer or pesticides.
These minimal additional costs are outweighed by the benefits of
applying the safety requirements of the HMR to those commercial motor
vehicle operations.
All hazardous materials, including agricultural products, pose the
same flammable, toxic, or explosive risks regardless of who is
transporting them. Petitioners have not demonstrated that the factors
underlying the exceptions in Sec. 173.5 should apply to retailers, nor
that the broad additional exceptions requested would be justified.
The petition for reconsideration of the agricultural exception in
Sec. 173.5 and the responding comment are set forth below:
February 7, 1997.
Mr. Alan I. Roberts,
Administrator, Research & Special Programs Administration, U.S.
Department of Transportation 400 Seventh Street, S.W., Washington,
D.C. 20590
Re: Petition for Reconsideration of Docket HM-200
Dear Mr. Roberts: As per 49 CFR 106.35, please accept this
petition for reconsideration of HM-200 (62 Federal Register 1208),
which in its present form will have a serious economic and
operational impact on the agricultural industry in the United
States.
Statement of Complaint
In the preamble of the HM-200 rule, RSPA acknowledges that it
received ``more than 500 comments from farmers and agricultural
supply businesses who expressed concern that this rule would
prohibit states from granting exceptions for farmers.'' In the final
rule, RSPA provided an exception from the HMR for farmers who
transport agricultural products between fields of the same farm. We
appreciate this action by RSPA, as it will provide some relief for
farmers. However, we know that many of the 500 comments to RSPA also
expressed concern about the impact of the rule on ag retailers as
well. RSPA failed to acknowledge the concerns of the retail segment
of the industry, whose operations have a direct impact on the
farmer, and whose transport of materials is often identical to that
of the farmer.
We are also aware that RSPA was directed in a conference report
accompanying the FY 1997 DOT appropriations bill ``to give serious
consideration to establishing an agriculture exception consistent
with similar exemptions already granted by the department.''
Finally, Dr. D.K. Sharma received a ``Dear Colleague'' letter
signed by 48 Congressmen and Senators that urged RSPA to ``carefully
consider the concerns of the (ag) industry'' when formulating this
rulemaking.
Despite all the directives to do so, after evaluating the
language in the final HM-200 rule we are deeply disappointed that
RSPA has failed to provide adequate relief from the HMR for both
farmers and retailers. The minimal exceptions granted in Section
173.5 will do little to facilitate the efficient and historically
safe movements of ag inputs from retail to farm, and will take a
devastating economic toll on the agricultural industry.
Final Rule Unreasonable, Impractical
HM-200 effectively negates state exceptions for ag retailers and
farmers from the HMR. In most cases, these exceptions have existed
for decades. Because many farmers and ag businesses have never had
to comply with the HMR, they are unaware of the implications of
applying these federal rules to movements of agricultural products
from retail-to-farm.
This rule is unreasonable and impractical from several
standpoints.
1. The rule is effective October 1. Beginning next fall and
extending into the spring, it will cause tremendous confusion for
farmers, ag businesses and state officials who must now deal with a
federal law that dictates the application of complicated hazardous
materials regulations on local, rural shipments of agricultural
inputs. On average, the bulk of agricultural product shipments occur
during a 45-day period when planting commences, and periodically in
the fall when some fertilizer is applied. Farmers and ag businesses
do not transport agrichemicals every day of the year. Forcing them
to comply with this complex regulation
[[Page 49564]]
for a few brief periods during the year is not justified and will
only result in confusion and misunderstanding as each planting
season rolls around--and we don't see it getting any easier as time
goes on.
2. Although farmers received some relief from the HMR for
between-field movements of DOT regulated agrichemicals, agricultural
retailers were dealt a massive blow when RSPA completely ignored
their similar need for relief when delivering these same products to
the farm, or when the farmer himself picks up these products at the
retail site and takes them to the farm.
Based on valid industry estimates, it will cost a typical
agricultural retail facility $12,300 annually to comply with the
mandates of HM-200. (See Attachment A for analysis of costs.) In the
midwest alone, the number of ag retail facilities affected exceed
5,000 in number. At $12,300 per facility, that's a cost of
$61,500,000 per year to comply with HM-200, and that's only in the
midwest (i.e. Illinois, Indiana, Iowa, Wisconsin, Minnesota, Ohio).
These are costs that will eventually be passed on in terms of higher
costs of products and services to the farmer. The farmer, however,
cannot pass along these costs due to the ag marketing structure. The
added expense of complying with HM-200 will ultimately contribute to
lower net farm income nationwide, without any significant increase
in public safety.
3. Although the goal of HM-200 is uniformity, state officials in
agricultural states will still be required to enforce the HMR only
on certain types of agricultural movements, even though the movement
of agricultural products--whether from retail-to-farm or between
fields--will remain similar in their makeup. In essence, the same
quantities and types of agricultural products will be on trucks
leaving retail sites and on trucks traveling between fields.
We believe that for purposes of uniformity and enforcement, it
makes more sense to allow exceptions from the HMR for both retail-
to-farm and farm-to-farm shipments, whether the ag products are
picked up by the farmer or delivered by the retailer. The excellent
safety record of the ag industry merits this exception.
We believe HM-200 to be an unreasonable burden on the
agricultural industry, impractical in terms of compliance and
enforcement, and unnecessary based on the excellent safety record
for retail-to-farm and farm-to-farm shipments of ag products. We
stand behind our safety record and would welcome contradictory data
from RSPA that proves that these movements of ag products pose an
unreasonable threat to public safety.
We, the undersigned, petition RSPA to reconsider the impact that
HM-200 will have on farmers and agricultural supply businesses. We
urge RSPA to revise 49 CFR, Section 173.5 to incorporate language
that will provide an exception from the HMR for both farmers and
retailers who transport agricultural products from retail-to-farm,
between fields, and from the farm back to the local source of
supply.
We offer our knowledge and expertise to you in this endeavor,
and would welcome the opportunity to sit down with RSPA and create a
workable regulation--one that recognizes the unique needs of the
agricultural industry, streamlines enforcement and provides a
framework in which we can continue to safely and efficiently provide
farmers with the tools they need to feed the U.S. and the world.
Sincerely,
Agribusiness Association of Iowa
Agricultural Retailers Association
Alabama Farmers Cooperative, Inc.
Alliance of State Agri-Business Assoc.
American Farm Bureau Federation
Arizona Crop Protection Association
CF Industries, Inc.
Countrymark Coop, Inc.
Farmland Industries, Inc.
Georgia Agribusiness Council
Gold Kist, Inc.
GROWMARK, Inc.
Illinois Farm Bureau
Illinois Fertilizer & Chemical Assoc.
Indiana Farm Bureau, Inc.
Indiana Plant Food & Ag Chemical Assoc.
Iowa Farm Bureau Federation
Iowa Institute for Cooperatives
Kansas Fertilizer & Chemical Association
Kansas Grain & Feed Association
Louisiana Ag Industries Association
Michigan Agribusiness Association
Minnesota Crop Production Retailers
Mo-Ag Industries Council
Montana Agricultural Business Association
National Association of Wheat Growers
National Cotton Council
National Council of Farmer Cooperatives
Nebraska Cooperative Council
Nebraska Fertilizer & Ag-Chemical Inst., Inc.
New England Council for Plant Protection
Ohio Agribusiness Association
Ohio Farm Bureau Federation
Oklahoma Fertilizer & Chemical Association
Rocky Mountain Plant Food & Ag Chem Asc.
SF Services, Inc.
South Dakota Farm Bureau
South Dakota Fertilizer & Ag Chemical Asc.
Southern States Cooperative
Tennessee Farmers Cooperative
The Andersons
United Suppliers, Inc.
WILFARM L.L.C.
Wisconsin Agri-Service Association, Inc.
Wyoming Agri-Business Association
Attachment A
Cost to Retail Ag Facilities to Comply with HM-200.
Manpower: 10 additional minutes per load to evaluate
shipments of agricultural products to determine applicability to the
HMR.
On average, during spring season each agrichemical facility
processes 100 loads per day of agricultural products (both packaged
and in solution), which includes loads picked up by the farmer and
loads delivered by the retailer.
100 loads per day x additional 10 minutes = 1000 minutes
60 min/hour = 16.666 additional manhours per day spent on
compliance.
16.666 hours x $14 per hour average salary for personnel =
$233.333 per day for additional manhours to evaluate loads for
compliance.
$233.333 per day x 45 days of peak movement of agricultural
products = $10,500 (rounded). This does not take into account
movements made during off-season.
Placards: Assume 25% of the 100 loads per day will
require placarding. Most inexpensive placard is .35 cents. .35 x 4
= $1.40 per load. 25 loads per day x $1.40 = $35 per day. $35 x
45 days of spring season = $1575.
Shipping Papers: It is highly unlikely that we can use
``laminated'' shipping papers as RSPA indicates in the preamble.
Products, package sizes and shipping descriptions for ag products
change too often to make pre-printed papers feasible. However,
assuming we can generate some type of shipping paper at .05 cents
per page, the costs are as follows: 100 loads per day x .05 for
shipping paper = $5.00 x 45 days of spring season = 225. This does
not take into account unknown cost for software and software
maintenance to keep the descriptions up to date.
Minimum Annual Cost to Comply for AG Businesses to Comply With HM-200
$10,500. in manhours
1,575... in placards
225..... in shipping papers (this cost likely to be substantially more)
---------
$12,300. annually for each retail ag facility--with thousands of
facilities in the U.S., the economic impact may be in the
hundreds of millions of dollars.
Source: Data provided by management personnel at retail
agribusiness facilities.
March 17, 1997.
Alan I. Roberts,
Associate Administrator, Hazardous Materials Safety, Research and
Special Programs Administration, U.S. Department of Transportation,
400 Seventh St., SW., Washington, DC 20590
RE: HM-200
Dear Mr. Roberts: The undersigned associations representing
carriers of hazardous materials are writing to express concern over
the filing by the Agricultural Retailers Association (ARA), on
behalf of a number of organizations with ties to the agri-business,
of a petition for reconsideration RSPA's final rule in the matter of
HM-200, hazardous materials in intrastate commerce. We realize that
these comments are not timely filed. However, we beg the indulgence
of RSPA as provided by 49 CFR 106.23 to consider late filed comments
``as far as practicable.''
For over a decade, carriers we represent have been required to
follow RSPA's hazardous materials regulations (HMRs) when engaged in
the intrastate commerce of hazardous substances, hazardous waste,
flammable cryogenic liquids and, more recently, marine pollutants.
Our members have benefitted by the consistent application of
hazardous materials rules to all operations whether the
transportation is intrastate, interstate or foreign. Our review of
the ARA petition causes us to raise the following concerns:
For Whom Is Relief Requested?
The petitioner states that HM-200 provided relief for farmers,
but did not
[[Page 49565]]
extend relief to ``ag retailers.'' In describing why HM-200 is
``unreasonable and impractical'', the petitioner repeatedly links
the retail segment of the industry with farmers. However, no
information is provided to support the linkage other than both, as
an incidental part of their business, may use the same roads for
transport. We find it hard to believe that the business operation of
a typical ag retailer described in the petitioner's ``Attachment A''
comports with the typical business operation of a farmer.
Just as we see little similarity between an ag retailer and a
farmer, it is not clear what circumstance(s) distinguishes the
retailer from other shippers/carriers of hazardous materials that do
not ship/haul agricultural-related hazardous materials. We
understand that the agricultural supply industry is quite diverse as
to the size of company involved and the scope of these company
operations. Companies engaged in agri-business range from multi-
national corporations to those that would be considered local small
businesses. We note, however, that we would hardly qualify as
``small'' operations which, according to the petitioner, ship on
average from each facility 100 hazardous materials loads a day. In
any event, we have to assume that the petitioner would not want to
create price competitive advantages for one segment of its industry
over another. Consequently, the relief sought must be assumed to
apply to all sizes and configurations of shipper/carriers.
Non-agricultural shippers/carriers of hazardous materials, no
matter the size of the operation, have not been granted universal
relief from the HMRs simply by virtue of how the consignees served
by the shipper/carriers use the commodity transported. Since the
HMRs are established to ``protect[] against the risks to life and
property inherent in the transportation of hazardous material'' [49
U.S.C. 5101.], we fail to see how the petitioner has justified
special treatment that will allow ag retailers to ignore these
protective measures.
What Is the Justification for the Relief Being Sought?
The petitioner claims that HM-200 is ``unreasonable and
impractical'' for a number of reasons, and that the only appropriate
response to these concerns is to ``provide an exception from the
HMRs retailers who transport agricultural products from retail-to-
farm, between field, and from the farm back to the local source of
supply.'' Such a zero-sum proposal lacks credibility.
Based on the ag retailers' own justification for exception from
the HMRs, we offer the following observations:
Complexity of Rules: the rules may be ``new'', but
``complex'' is a relative term that deserves more analysis. For
example, compared to rules issued under statutes administered by the
U.S. Environmental Protection Agency (EPA), the HMRs are simple.
Congress has granted DOT/RSPA authority to require nationally
uniform and internationally harmonized rules. RSPA provides free, or
at cost, numerous services and products to aid compliance. These
services and products include a comprehensive advisory guidance
document published in the Federal Register to remind persons
involved in the transportation of hazardous materials of their
regulatory responsibilities, newsletters, conferences, training
modules, and the like. Those representing the ag retail industry
could perform a great service to their membership by informing
members of these resources.
Hazardous Substances: Congress mandated that DOT
regulate EPA-designated ``hazardous substances'' as ``hazardous
materials.'' [42 U.S.C. 9656(a).] Hazardous substances have been
regulated by RSPA in intrastate commerce since 1980. [49 CFR 171.1]
Many crop protection products are regulated hazardous substances. In
short, ag retailers should have been complying with the HMRs for the
transport of these materials for the last 15 years. Any relief RSPA
could grant from the HMRs will not change the fact that the
materials are regulated by EPA.
In terms of any non-hazardous substance materials that are
shipped/carried by ag retailers, the petitioner provides no
information about the number, kind, and quantity of such materials
now newly regulated by HM-200. Such information would be critical
for RSPA to evaluate the merit of the level of relief requested.
Scope of the Exception Requested: The HMRs apply
nationally. Prior to HM-200, the federal government provided
incentives to states to adopt the HMRs for intrastate commerce.
According to data of the Federal Highway Administration, all but one
state had adopted the HMRs and of those that adopted them only 8
provided exceptions specific to farmers and/or the broader agri-
business community. In short, 41 states do not provide farm-specific
exceptions from the HMRs. Yet, organizations that by their names
represent agri-business in at least 18 states joined the ARA in
support of this petition. Some organizations joining the petition
appear to have nationwide representation. Is RSPA to infer that the
petitioner wishes to rollback regulation that has already been
implemented in 41 states?
Costs: As noted above, agri-business has already been
subject to the HMRs in the great majority of states. Any costs
associated with the implementation of HM-200 should only reflect
compliance costs that may ensue in the 9 states where some
exceptions were granted to segments of the agri-business community.
Also, some discount should be factored in for the proportion of the
100 shipments/day that are hazardous substances and have been
subject to the HMRs even in those states that have not adopted these
federal rules as a matter of state law.
Whatever is ultimately determined to be the proper scope in
computing the cost basis, we question some of the cost estimates
used by the petitioner in ``Attachment A.'' The petitioner states
that ``[p]roducts, package sizes and shipping descriptions for ag
products change * * * often * * *'' Obviously, to serve their
customers, the ag retail industry has systems in place to track and
fill orders for ag products in a rapidly changing environment. At
the same time, we are unaware of commercial transactions involving
the exchange of freight where some sort of shipping paper does not
accompany the load for proof of delivery and/or billing purposes.
Recognizing this fact, RSPA does not require a unique form to
communicate the presence of hazardous materials in a load and to
communicate appropriate emergency response information. [Shipments
required by EPA to be tracked on the Uniform Manifest are the
exception.] Additionally, we would assume that most deliveries to
local ag retail facilities were transported in full compliance with
the HMRs and that necessary shipping paper information could be
readily transcribed from the papers accompanying these movements to
the shipping papers necessary for further downstream distribution.
We specifically question the reliability of the estimate for
placarding vehicles where the implication is given that placards are
not reusable. Reusable configurations of placards can be purchased.
In short, we do not believe the economic analysis is accurate.
Risk: The requested ``retail-to-farm and from the farm
back to the local source of supply'' exception is subject to no
qualification such as distance traveled, condition of the roads,
access of the public, time-of-travel, or any other conditions that
might limit the exposure of public to the excepted transportation
events. We simply note that the roads used to support what would be
movements subject to no official safety standards are public and
shared by farmer and non-farmer alike. A public that, by law, RSPA
must protect.
Conclusion
The petitioner references two congressionally-generated
documents that request RSPA to carefully consider the concerns of
the agriculture industry when issuing rules under HM-200. No
evidence is provided that suggests RSPA did not fulfill this charge.
To the contrary, we believe the attention drawn to this issue by
agri-business ensured that RSPA not propose a rule that could not be
supported on its merits. RSPA walked a careful balance between those
in agri-business that advocated for exemption from the HMRs and
those primarily in the emergency response community that opposed
exceptions to safety rules.
RSPA provides many services to help the regulated community
achieve compliance. We have no doubt that RSPA would make every
effort to provide needed compliance services to ag retailers.
We appreciate the opportunity to submit these comments. Please
contact us if additional input is necessary on any of the points
raised above.
Sincerely,
Paul Bomgardner,
Hazardous Materials Specialist, American Trucking Associations, Inc.
Cynthia Hilton,
Executive Director, Association of Waste Hazardous Materials
Transporters.
Cliff Harvison,
President, National Tank Truck Carriers, Inc.
This final rule delays for one year the mandatory compliance date
for all requirements in the January 8, 1997, final rule under Docket
HM-200 that
[[Page 49566]]
otherwise would become mandatory on October 1, 1997. Because of the
relief provided by this final rule, it is effective October 1, 1997,
without the customary 30-day delay following publication.
V. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Polices and Procedures
This final rule is considered a significant regulatory action under
section 3(f) of Executive Order 12866 and, therefore, was reviewed by
the Office of Management and Budget. This final rule is considered
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034) due to significant public
and congressional interest. A regulatory evaluation was prepared for
the January 8, 1997 final rule and is available for review in the
Docket. The regulatory evaluation was reviewed and determined not to
require updating. The effect of this final rule will delay for one year
the costs and benefits of applying the HMR to intrastate motor
carriers. There is no delay in the materials of trade exception and its
benefits.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous materials transportation law (49 U.S.C. 5101-5127)
contains an express preemption provision that preempts State, local,
and Indian tribe requirements on certain covered subjects. Covered
subjects are:
(i) The designation, description, and classification of hazardous
material;
(ii) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) The preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements respecting the
number, content, and placement of such documents;
(iv) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(v) The design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
This rule concerns the packaging, marking, labeling, placarding and
description of hazardous materials on shipping papers. This rule
preempts State, local, or Indian tribe requirements in accordance with
the standards set forth above. RSPA lacks discretion in this area, and
preparation of a federalism assessment is not warranted.
Title 49 U.S.C. 5125(b)(2) provides that if DOT issues a regulation
concerning any of the covered subjects, DOT must determine and publish
in the Federal Register the effective date of Federal preemption. That
effective date may not be earlier than the 90th day following the date
of issuance of the final rule and not later than two years after the
date of issuance. RSPA determined that the effective date of Federal
preemption for the requirements in this rule concerning covered
subjects is January 1, 1998.
C. Regulatory Flexibility Act
The January 8, 1997 final rule affects many small business entities
that ship or transport hazardous materials, however any adverse
economic impact should be minimal. Many small entities affected by this
final rule also receive relief from current regulatory requirements.
The regulatory evaluation developed in support of the January 8, 1997
final rule includes a benefit-cost analysis that justifies its
adoption, primarily due to the positive net benefits that may be
realized by small entities under the materials of trade exception. RSPA
has reviewed this regulatory evaluation and determined it was not
necessary to update it. As noted earlier, RSPA is not delaying the
materials of trade exception. This final rule, however, delays for one
year the costs and benefits of applying the HMR to intrastate motor
carriers.
D. Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
E. Regulations Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
In consideration of the foregoing, 49 CFR parts 171 and 173 are
amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 171.1 [Amended]
2. In Sec. 171.1 as revised at 62 FR 1215 effective October 1,
1997, paragraph (a)(1) is amended by removing the last period in the
paragraph and adding at the end of the last sentence the wording ``,
(except that until October 1, 1998, this subchapter applies to
intrastate carriers by motor vehicle only in so far as this subchapter
relates to hazardous waste, hazardous substances, flammable cryogenic
liquids in portable tanks and cargo tanks, and marine pollutants).''
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
3. The authority citation for part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 173.5 [Amended]
4. In Sec. 173.5 as revised at 62 FR 1215 effective October 1,
1997, paragraph (a)(2) is amended by revising the date ``July 1, 1998''
to read ``October 1, 1998''.
Sec. 173.6 [Amended]
5. In Sec. 173.6 as added at 62 FR 1216 effective October 1, 1997,
paragraphs (a)(1) introductory text, (a)(2), (b)(4), and (d) are
revised; paragraph (a)(1)(iii) is amended by removing the semicolon and
adding a period in its place; and a new paragraph (e) is added to read
as follows:
Sec. 173.6 Materials of trade exceptions.
* * * * *
(a) * * *
(1) A Class 3, 8, 9, Division 4.1, 5.1, 5.2, 6.1, or ORM-D material
contained in a packaging having a gross mass or capacity not over--
* * * * *
(2) A Division 2.1 or 2.2 material in a cylinder with a gross
weight not over 100 kg (220 pounds), or a permanently mounted tank
manufactured to ASME
[[Page 49567]]
standards of not more than 70 gallon water capacity for a non-liquefied
Division 2.2 material with no subsidiary hazard.
* * * * *
(b) * * *
(4) For gasoline, a packaging must be made of metal or plastic and
conform to the requirements of this subchapter or to the requirements
of the Occupational Safety and Health Administration of the Department
of Labor contained in 29 CFR 1910.106(d)(2) or 1926.152(a)(1).
* * * * *
(d) Aggregate gross weight. Except for a material of trade
authorized by paragraph (a)(1)(iii) of this section, the aggregate
gross weight of all materials of trade on a motor vehicle may not
exceed 200 kg (440 pounds).
(e) Other exceptions. A material of trade may be transported on a
motor vehicle under the provisions of this section with other hazardous
materials without affecting its eligibility for exceptions provided by
this section.
Sec. 173.8 [Amended]
6. In Sec. 173.8 as added at 62 FR 1216 effective October 1, 1997,
paragraph (d)(3) is amended by revising the date ``July 1, 1998'' to
read ``October 1, 1998''.
Issued in Washington, DC on September 16, 1997 under authority
delegated in 49 CFR, part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 97-25065 Filed 9-18-97; 8:45 am]
BILLING CODE 4910-60-P
