[Federal Register Volume 61, Number 55 (Wednesday, March 20, 1996)]
[Proposed Rules]
[Pages 11484-11490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6577]
[[Page 11483]]
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Part III
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 171, 173 and 180
Hazardous Materials in Intrastate Transportation; Proposed Rule
Federal Register / Vol. 61, No. 55 / Wednesday, March 20, 1996 /
Proposed Rules
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[[Page 11484]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173 and 180
[Docket No. HM-200; Notice No. 96-6]
RIN 2137-AB37
Hazardous Materials in Intrastate Transportation
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Supplemental notice of proposed rulemaking (SNPRM) and notice
of public meeting.
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SUMMARY: Based on the merits of comments received in response to a
notice of proposed rulemaking (NPRM) to apply the Hazardous Materials
Regulations (HMR) to intrastate commerce by motor vehicle, RSPA is
issuing these additional proposals. In this document RSPA proposes:
Exceptions from the HMR for certain small quantities of hazardous
materials transported and used by carriers, particularly private
carriers, in the conduct of their businesses; exceptions for the
continued use of non-specification smaller cargo tank motor vehicles
(i.e., less than 13,250 liters (3,500 gallons) capacity) used
exclusively in intrastate transportation of flammable liquid petroleum
products; and an exception from certain requirements that address
registered inspections of these smaller cargo tank motor vehicles, used
exclusively for transporting flammable liquid petroleum fuels. These
proposed actions are aimed at reducing regulatory burdens on persons
subject to the HMR where costs may be disproportional to safety
benefits. This proposal may affect certain State variances.
RSPA also is announcing a public meeting to solicit comments on the
proposals contained in this docket.
DATES: Written comments. Comments must be received on or before June
17, 1996.
Public Meeting. A public meeting will be held from 9:00 a.m. to
4:00 p.m. on May 14, 1996 in Washington, DC. Exceptions for materials
of trade will be discussed from 9:00 a.m. to 12 noon. Cargo tank and
registered inspection exceptions will be discussed from 1:00 to 4:00
p.m.
ADDRESSES: Comments. Address comments to Dockets Unit, Research and
Special Programs Administration, U.S. Department of Transportation,
Washington, DC 20590-0001. Comments should identify the Docket (HM-200)
and be submitted, if possible, in five copies. Persons wishing to
receive confirmation of receipt of their comments should include a
self-addressed stamped postcard showing the docket number. The Dockets
Unit is located in Room 8419 of the Nassif Building, 400 Seventh
Street, SW, Washington, DC 20590-0001. Telephone: 202-366-5046. Public
dockets may be reviewed between the hours of 8:30 a.m. and 5:30 p.m.,
Monday through Friday except Federal holidays.
Public Meeting. The public meeting will be held at the Federal
Aviation Administration Auditorium, Third Floor, 800 Independence
Avenue, SW, Washington, DC. Any person wishing to attend and/or present
an oral statement at the public meeting should notify Diane LaValle, by
telephone or in writing, at least two days in advance of the hearing
date. Each request must identify the speaker; organization represented,
if any; daytime telephone number; and anticipated length of the
presentation, not to exceed 10 minutes. Written text or oral statements
should be presented to the hearing officer prior to the oral
presentation.
FOR FURTHER INFORMATION CONTACT: Jackie Smith or Diane LaValle, 202-
366-8553, Office of Hazardous Materials Standards, RSPA, 400 Seventh
Street, SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
Currently, the Hazardous Materials Regulations (HMR; 49 CFR parts
171-180) do not apply to highway transportation by intrastate carriers
with the exception of registration requirements and transportation of
hazardous substances, hazardous wastes, marine pollutants, and
flammable cryogenic liquids in portable tanks and cargo tanks. The HMR
apply to all hazardous materials transported in commerce by rail car,
aircraft or vessel. A July 1986 report by the Office of Technology
Assessment (OTA) entitled ``Transportation of Hazardous Materials''
highlighted the need for national uniformity in the regulation of
hazardous materials transportation and packaging requirements. The
reporting of hazardous materials incidents was specifically mentioned
in the report as a prime area for extending the HMR to intrastate
transportation. Of particular concern is a potential for lack of
uniform communication and a potential for miscommunication to emergency
responders in identifying the presence of hazardous materials
regardless of whether transportation of the hazardous materials is
intrastate or interstate. Based on this report and a requirement in the
Federal hazardous materials transportation law (49 U.S.C. 5103(b)(1))
that RSPA regulate the transportation of hazardous materials in
intrastate commerce, RSPA proposed to extend the application of the HMR
to all intrastate transportation of hazardous materials in commerce in
a notice of proposed rulemaking (NPRM) on July 9, 1993 [58 FR 36920]
and a correction to the NPRM on July 15, 1993 [58 FR 38111].
RSPA proposed that all intrastate shippers and carriers comply with
the HMR. The NPRM requested comments on the need for, and potential
consequences of, extending the application of the HMR to all intrastate
transportation in commerce. Except for bulk packagings, RSPA proposed
to require compliance within one year after publication of the final
rule. RSPA proposed a three-year transition period (from October 1,
1993) for continued use of certain bulk packagings used to transport
hazardous materials not currently regulated in intrastate commerce,
provided these packagings are used exclusively by intrastate carriers
and are specifically authorized by the State in which they are
operated. RSPA believed that the proposed three-year transition period
would provide adequate time for intrastate motor carriers to bring
their bulk packagings into conformance with the HMR.
More than 230 comments were received in response to the NPRM, a
significant number addressing matters that were not raised in response
to the advance notice of proposed rulemaking RSPA published on June 29,
1987 [52 FR 24195]. This SNPRM is responsive to many of those matters,
including concerns raised in regard to the operation of smaller cargo
tank motor vehicles.
II. Issues Addressed in This Supplemental Notice
The issues addressed in this supplemental notice of proposed
rulemaking (SNPRM) are exceptions for: (1) ``materials of trade,'' (2)
non-specification smaller cargo tank motor vehicles (i.e., less than
13,250 liters (3,500 gallon) capacity) used exclusively in intrastate
transportation of flammable liquid petroleum products, and (3) certain
requirements addressing use of registered inspectors for these smaller
cargo tank motor vehicles used to transport flammable liquid petroleum
fuels only.
[[Page 11485]]
A. Materials of Trade
If the proposals in the July 1993 notice were adopted without
change, all applicable regulations in the HMR would apply to the
carriage of many materials of trade. RSPA received approximately a
dozen comments on the issue of materials of trade.
The HMR currently provide certain limited exceptions for hazardous
materials that are transported by private carriers as ``materials of
trade.'' For example, Sec. 173.5 provides exceptions from certain
marking and packaging requirements for private carriers transporting
specified quantities of formulated agricultural chemicals. However, the
commenters requested that RSPA consider additional regulatory
exceptions to allow for the transportation of hazardous materials that
are used in support of business operations, particularly with regard to
transportation by private carriers in intrastate commerce, many of whom
are small business entities.
The Conference on Safe Transportation of Hazardous Articles, Inc.,
and the Edison Electric Institute's Utility Nuclear Waste and
Transportation Program strongly encouraged RSPA to not regulate local
movements of relatively small quantities of hazardous materials used in
the field (e.g., those carried by plumbers, doctors, roofers and lawn
service personnel). The Utility Solid Waste Group submitted a petition
for rulemaking (P-1248) proposing exceptions from the HMR for materials
of trade. Other petitions addressing certain exceptions for materials
of trade include the Georgia Public Service Commission (P-1209), the
Association of American Railroads (P-1058), and the Maryland Department
of Transportation (P-1098). These commenters suggest that thousands of
intrastate businesses affected by HM-200 would face impracticable
regulatory requirements. As an example, they cite a routine situation
involving a consumer commodity (class ORM-D) hazardous material (e.g.,
a can of spray paint) transported in a service vehicle. Under the
current regulations, when transported for use by the carrier, the
consumer commodity would have to be transported in a closed and marked
outer box, thereby making it impractical to use.
Prompted by comments submitted to the docket and petitions for
rulemaking, RSPA is proposing to limit regulatory requirements for the
transportation of certain hazardous materials used as materials of
trade. Factors leading to RSPA's determination include: (1) The
relatively small quantity of these hazardous materials that are
normally carried on a motor vehicle; (2) the general reliance on a DOT
specification or U.N. standard packaging (or components thereof) as the
principal packaging; and (3) a motor vehicle operator's familiarity
with the hazardous material.
These materials of trade would include, subject to certain
limitations, hazardous materials carried on a motor vehicle for
protecting the health and safety of the motor vehicle operator, such as
insect repellant or self-contained breathing apparatus or for
supporting the operation or maintenance of a motor vehicle, such as a
spare battery or engine starting fluid. They would also include certain
hazardous materials carried by a private motor carrier engaged in a
principal business which is other than transportation, such as lawn
mowing, plumbing, welding, and door-to-door sale of consumer goods.
In proposed Sec. 173.6, RSPA has identified types and quantities of
certain categories of hazardous materials commonly carried as materials
of trade for which exceptions would be provided. Specific limitations
and provisions are proposed to strike a balance between safety and
costs. Each hazard class and division has been considered to determine
how the materials of trade exception may be applied to maximize the
number of entities and operations that would be covered by it, while
minimizing the risks to hazmat employees, emergency responders, and
members of the general public who may be exposed to these hazardous
materials during transportation.
Proposed Sec. 173.6 applies limitations on the maximum quantity per
packaging and the total quantity per motor vehicle. For example,
Sec. 173.6 proposes to allow a gross mass of up to 30 kg (66 pounds)
per packaging for a Class 8, packing group II or III material, and a
gross mass of up to 75 kg (165 pounds) for a Division 2.1 material.
Furthermore, the aggregate gross weight of all materials of trade on a
motor vehicle, as proposed, may not exceed 150 kg (330 pounds).
Proposed Sec. 173.6 would exclude the following materials that present
significant risk: (1) Self-reactive (see Sec. 173.124(a)(2)); (2)
poisonous-by-inhalation (see Sec. 173.133); and (3) specific UN
identification numbers associated with the hazardous materials
description in the Sec. 172.101 Table.
Additional provisions in Sec. 173.6 include packaging and hazard
communication requirements. The packaging for a material of trade must
be either the manufacturer's original packaging or a packaging of equal
or greater strength and integrity. For example, a flammable liquid from
a 55-gallon polyethylene drum could be repacked in a smaller
polyethylene drum or a steel drum that provides equal or greater
strength and integrity. In addition, Sec. 173.6 proposes to except
receptacles (e.g., cans and bottles) from the outside packaging
requirement if they are secured against movement in cages, carts, bins,
boxes or compartments.
For gasoline, packaging must be made of metal or plastic and
conform to requirements of the HMR, or those of the Occupational Safety
and Health Administration specified in 29 CFR 1910.106. By the action
it is proposing in this SNPRM, RSPA intends that State and local fire
codes that prohibit use of glass containers for gasoline not be
preempted.
A cylinder or other pressure vessel containing a Division 2.1 or
2.2 material must fully conform to the packaging requirements of the
HMR and the qualification, maintenance and use of cylinder requirements
in Sec. 173.34. An exception from the requirements for use of an outer
packaging is provided in proposed Sec. 173.6(d)(3).
Hazard communication requirements proposed in Sec. 173.6 specify
that DOT specification cylinders, with the exception of the DOT-39,
would continue to be subject to marking and labeling requirements
specified in the HMR. Each DOT-39 cylinder must display the markings
specified in Sec. 178.65-14. Any other packaging must be marked with an
indication of the hazardous material that it contains. The hazard
communication requirement specifies that a vehicle operator be informed
that a material of trade is being carried on the motor vehicle and of
the requirements pertaining to the transportation of the material of
trade, e.g., packaging and vehicle quantity limitations, packaging
markings and securement of packagings to protect against damage.
When transported by motor vehicle in conformance with Sec. 173.6,
materials of trade would not be subject to any other requirements of
the HMR except as stated in the section. A provision is proposed in
paragraph (f) of Sec. 173.6 to clarify that both materials of trade and
other hazardous materials could be transported on the same motor
vehicle without affecting the applicability of the exception provided
for the material of trade. By providing an exception for materials of
trade, RSPA believes it is taking a common sense approach in regard to
applicability of the HMR to
[[Page 11486]]
small and local business entities. The anticipated beneficiaries of
materials of trade exceptions would primarily be small businesses that
perform services such as plumbing, welding, lawn care, painting, pest
control, swimming pool maintenance and a number of different activities
related to farming. Companies, such as public utilities, will also
benefit in regard to operation of their service vehicles. In addition,
the proposed exception would apply to any type of carriage by motor
vehicle (including common motor carriers) if the material, such as
engine starting fluid, is used in association with the operation of the
motor vehicle in which it is transported. RSPA is proposing application
of these exceptions to both interstate and intrastate carriage. No new
or additional cost burdens are anticipated.
B. Exceptions for Non-Specification Bulk Packagings Used in Intrastate
Transportation
RSPA received more than 100 comments from petroleum carriers and
farmers and their trade associations regarding the elimination of
exceptions authorized by the States. Many of these commenters
recommended that States be allowed the flexibility to determine who
would be subject to the regulations. Petroleum marketers from several
States contended that, if the proposal to regulate the transportation
of hazardous materials in intrastate commerce replaces current State
regulations, they would be forced to remove cargo tanks from hazardous
materials service or retrofit them to conform to the applicable DOT
specifications at prohibitive costs. In comments responding to the
NPRM, the Petroleum Marketers Association of American (PMAA) urged--
* * * RSPA to provide an exemption from the requirements of 49
CFR part 180 and subparts D and F of part 173 for non-specification
bulk packagings with capacities less than 3,500 gallons used to
transport Hazard Classes 2.1 and 3 materials in intrastate commerce
only where (1) the packaging is used exclusively in a State where
its use for the material being transported was specifically
authorized by statute or regulation of that State, and was
specifically and continuously authorized on or before October 1,
1993; (2) the packaging complies with all requirements of the State;
and (3) each shipment is offered in conformance with all other
applicable requirements of this subchapter.
PMAA believes that--
Providing an exemption from the specification cargo tank
requirements for small business petroleum marketers, as outlined
above, would hardly create a glaring loophole in the HMR.
If RSPA denies this request for an exemption, then PMAA
respectfully requests that a ten to fifteen year transition period
be given in proposed subpart 171.1(c) to allow affected small
business petroleum marketers to fully utilize their current cargo
tanks.
In an attempt to maintain an acceptable level of safety without
unduly burdening the many small businesses that operate smaller cargo
tank motor vehicles, RSPA is proposing in paragraph (b) of Sec. 173.8
to except from the HMR's cargo tank specification requirement certain
cargo tank motor vehicles that have a capacity of less than 13,250
liters (3,500 gallons). As provided in paragraph (c) of Sec. 173.8,
excepted cargo tanks may only be operated by intrastate motor carriers
for transportation of flammable liquid petroleum products in
conformance with the laws of the States in which they are operated.
RSPA believes that this proposed exception is responsive to PMAA's
request, thereby minimizing the economic impacts on those small
intrastate businesses that currently operate non-specification smaller
cargo tank motor vehicles. Since the exception applies only to those
smaller cargo tank motor vehicles in operation prior to July 1, 1996,
no additional non-specification smaller cargo tank motor vehicles would
be authorized after that date. As these small businesses replace
equipment, they would be required to replace such equipment with
specification cargo tank motor vehicles. Comments are requested on the
proposal to allow continued use of these non-specification smaller
cargo tank motor vehicles beyond the three years initially proposed and
the 10 to 15 years requested by PMAA. If comments on this issue provide
sufficient justification to adopt any specific time limitation after
October 1, 1996, e.g., a three year or a 10 to 15 year limitation, RSPA
may revise the final rule issued under this docket accordingly.
It must be noted that, although RSPA is proposing to provide an
exception from the specification requirements for smaller cargo tanks
used to transport liquid petroleum products, all other applicable
requirements of the HMR would apply. These include marking and
placarding vehicles, hazmat training requirements, shipping paper and
emergency response information requirements, and the applicable modal
requirements. The extended (October 1, 1996) compliance period proposed
in Sec. 173.8(b) covers only parts 173 and 178 (for non-specification
petroleum cargo tank motor vehicles) and part 180. In addition, the
provisions of part 180 that apply to a DOT MC-306 cargo tank for an
annual external visual and leakage test, a five year visual and
hydrostatic or pneumatic test, would be applicable to smaller cargo
tanks that are otherwise excepted from the specification requirements;
however, the cargo tank manhole assembly requirements in
Sec. 180.405(g) would not apply. If periodic maintenance, inspections
and repairs are being performed on smaller non-specification tanks, as
indicated by PMAA and other commenters, then any incremental costs
associated with this rulemaking would be minimal. If they are not being
performed, RSPA believes those costs associated with ensuring an
acceptable level of continuing cargo tank integrity (e.g., no leakage,
secure closures, and no significant damage) are justifiable when
considering such cargo tank motor vehicles are used for transportation
of gasoline.
PMAA also requested that an exception be provided for cargo tanks
of less than 13,250 liters (3,500 gallons) used to transport Class 2.1
materials. RSPA has not proposed to include cargo tank motor vehicles
with a capacity of less than 13,250 liters (3,500 gallons) used to
transport Class 2.1 in the exception. The HMR provide an exception for
the use of non-specification cargo tanks for transporting liquefied
petroleum gas (see Sec. 173.315(k)) and there is no proposal to revise
or eliminate that exception. Therefore, providing the additional
exception requested by PMAA is not necessary.
Also proposed in Sec. 173.8 is an authorization for the use of
other non-specification bulk packagings authorized by State regulations
until June 30, 1999, as initially proposed in the NPRM. Those bulk
packagings would not be required to conform to the requirements
specified in Sec. 173.8(c), including the requirements in part 180 as
they were MC 306 cargo tanks. After June 30, 1999, these bulk
packagings must be in full compliance with the requirements of the HMR.
C. Registered Inspector Exception
Prior to January 1, 1991, the HMR's inspection and periodic retest
requirements did not apply to cargo tank motor vehicles with a capacity
of 3,000 gallons or less used exclusively in flammable liquid service.
This exception was fully evaluated and ultimately removed in a final
rule published June 12, 1989 under Docket HM-183 [54 FR 24982].
Commenters to Docket HM-183 representing the petroleum marketing
industry (i.e., distributors of gasoline, fuels and other petroleum
products) opposed the change. Some of these commenters also objected to
the proposal in this rulemaking to apply the inspection and periodic
retest
[[Page 11487]]
requirements to cargo tanks used in intrastate transportation.
PMAA commented that compliance with Federal cargo tank regulations
as adopted under HM-183 for inspection and testing would result in the
loss of a substantial amount of work and service hours for employees
and cargo tanks. Currently, a motor carrier must employ a registered
inspector or must have the cargo tank inspected by a registered
inspector. PMAA said that this may result in a significant loss of
revenue due to removal of a cargo tank from service and payment of fees
to a registered inspector.
Several commenters stated that they had already performed periodic
maintenance and inspection of their smaller cargo tanks and, therefore,
the proposal to subject these vehicles to periodic inspections was
unnecessary. One commenter asserted that its vehicles were inspected
annually by State fire marshals and, therefore, the exception should be
retained. RSPA believes that only a few State and local agencies have
enacted regulations governing the maintenance and testing of smaller
cargo tanks.
RSPA proposes to revise Sec. 180.409 to allow a person to perform
an annual external visual inspection and leakage test on a cargo tank
motor vehicle of less than 13,250 liters (3,500 gallons) capacity that
is used exclusively for transportation of flammable liquid petroleum
fuels (e.g., gasoline and diesel fuel) without being a registered
inspector. Under this proposal, that person would be permitted to use
one of its employees to perform the visual inspection and leakage test
as required by Sec. 180.407(c). The employee would not be required to
be a registered inspector, although the employee would have to be
trained and be familiar with the inspection requirements (Sec. 180.407)
for the cargo tank being inspected, how to identify defects and the
proper performance of the leakage test. The documentation required to
be maintained by Sec. 180.417(b) could be signed by the employee rather
than a registered inspector. The employee performing the annual visual
inspection and leakage test would be subject to the appropriate
training required in part 172, subpart H--Training. Routine cargo tank
maintenance could be performed by the operator. Other tests required
for a cargo tank by Sec. 180.407(c) would still be performed by a
registered inspector. Cargo tank repair, modification, stretching and
rebarreling would be performed by a registered facility. RSPA believes
that this proposal will provide savings to both interstate and
intrastate motor carriers who operate these smaller cargo tank motor
vehicles.
III. Discussion of Other Comments to the NPRM
Many commenters to the NPRM mistakenly believe that issuance of a
final rule under this docket will require intrastate motor carriers to
comply with the provisions of the Federal Motor Carrier Safety
Regulations (FMCSR). For example, commenters stated that additional
costs would be incurred by farmers to obtain a Commercial Driver's
License (CDL) with a hazardous materials endorsement, and insurance.
RSPA does not believe that the proposed rule, if adopted, will
subject any additional carriers to the FMCSR. All intrastate motor
carriers that meet the criteria in 49 CFR 383.23 are already required
to possess a CDL, unless a waiver is granted pursuant to 49 CFR 383.7
(and the proposed rule would not change this waiver authority).
Intrastate carriers of hazardous materials in bulk are already required
to meet the financial responsibility requirements in 49 CFR Part 387,
and this will not change.
RSPA has not proposed to extend the authority of the FMCSR to cover
all intrastate motor carriers, but assumes confusion may have resulted
from the provision in Sec. 177.804, which states that persons subject
to the HMR must comply with the provisions in the FMCSR, to the extent
those regulations apply. Section 177.804 does not broaden the
application of requirements for motor carriers beyond those
specifically required by the FMCSR. (See 49 CFR part 390.) For example,
drivers of commercial motor vehicles may not drive in interstate
commerce unless they meet certain medical qualification requirements. A
driver for an intrastate motor carrier would only need to comply with
those requirements if the State in which the carrier operates has
adopted such requirements. If commenters believe that this rule would
impose any additional costs, from application of the FMCSR or another
agency's requirements, they should explain those costs and quantify
them in detail.
Several commenters objected to applying the HMR to the intrastate
transportation of anhydrous ammonia. Again, RSPA does not believe that
this proposed rule would make any change in the HMR's applicability to
the transportation of anhydrous ammonia in intrastate commerce.
Anhydrous ammonia is regulated as a hazardous substance when
transported in quantities of 100 pounds or more and that the
transportation of hazardous substances in intrastate commerce has been
subject to the HMR since 1980. RSPA is required by law to regulate all
hazardous substances designated by the Environmental Protection Agency
(EPA) under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA). In carrying out the statutory mandate,
RSPA has no discretion to determine what is or is not a hazardous
substance or the appropriate reportable quantity (RQ) for materials
designated as hazardous substances. This authority is vested in EPA.
Other comments reflected a misunderstanding regarding RSPA's
intentions for current exceptions provided in the HMR for certain motor
carrier operations. Currently, the HMR provide exceptions for use of
non-specification ammonia/liquified petroleum gas cargo tanks in
Sec. 173.315, paragraphs (k), (m), and in Note 17 of the table. Section
173.315(k) authorizes the use of non-specification cargo tanks for the
transportation of liquified petroleum gas in intrastate commerce, under
specified conditions. Non-specification cargo tanks are authorized for
anhydrous ammonia in Sec. 173.315(m) and Note 17 of the table. Other
exceptions for agricultural operations and oil field service vehicles
are found in Secs. 173.5 and 173.7, respectively. RSPA has not proposed
to eliminate these exceptions from the HMR. Accordingly, if a final
rule is issued under this docket, the provisions authorizing the use of
non-specification packagings provided in those sections would remain
valid under the conditions specified.
Comments have been received under this proceeding and under Docket
HM-222 [60 FR 17049], expressing the view that business entities, such
as those engaged in agriculture, should be permitted to conduct their
operations under the provisions of State rather than Federal law if
they choose. For many years, DOT has encouraged States to adopt the
HMR. RSPA sponsors an outreach program called the Cooperative Hazardous
Materials Enforcement Development Program (COHMED) that fosters
coordination, cooperation, and communication between Federal and State
agencies and Indian Nations having regulatory and enforcement
responsibilities for the safe transportation of hazardous materials.
The Federal Highway Administration (FHWA) requires States to adopt and
enforce its Federal Motor Carrier Safety Regulations (FMCSR 49 CFR
parts 390-397) and highway-related portions of the HMR, or comparable
State rules and regulations, to qualify for grants under
[[Page 11488]]
FHWA''s Motor Carrier Safety Assistance Program (MCSAP).
All States have adopted the HMR for highway transportation however,
some have provided exceptions from their application, particularly in
regard to intrastate highway carriers. Some States have provided
substantial exceptions from all regulation. For example, one State
provides exceptions for significant quantities of hazardous materials
when transported from retailer to final agricultural end user, or
between final end users from farm to farm. Included in the exceptions
are (1) 16,000 pounds (aggregate gross weight) or less ammonium nitrate
fertilizer, (2) certain agricultural pesticides in Class 3 or Division
6.1 when moved in quantities of 5,000 pounds or less or 500 gallons or
less volume in solution, and (3) gasoline and liquefied petroleum gas
in quantities of 3,000 gallons or less. These materials are not subject
to marking, labeling, placarding, shipping paper, emergency response
information, or training requirements, except that vehicles
transporting gasoline and liquefied petroleum gas must be placarded.
RSPA has been asked to recognize such exceptions. RSPA believes that
such broad exceptions are not in the public interest and are contrary
to the Congressional intent that there be a uniform system of
regulation for the safe transportation of hazardous materials. Of
particular concern is the potential for lack of uniform communication
and miscommunication to emergency responders in any location where they
may encounter hazardous materials incidents.
On the other hand, RSPA does provide an opportunity for States to
obtain authorization for requirements that differ from those in the
Federal regulations. A State may apply for a waiver of preemption for
requirements that otherwise would be preempted by the Federal hazardous
materials transportation law. This waiver provision, in 49 U.S.C.
5125(e), authorizes RSPA to waive preemption for a State requirement
that provides at least an equivalent level of safety as the Federal law
and regulations and is not an unreasonable burden on commerce. RSPA has
established procedures for this waiver process in 49 CFR 107.215-227.
IV. Regulatory Reinvention Initiative
On March 4, 1995, President Clinton issued a memorandum to heads of
departments and agencies calling for a review of all agency regulations
and elimination or revision of those that are outdated or in need of
reform. The President also directed that front line regulators ``get
out of Washington and create grassroots partnerships'' with people
affected by agency regulations. RSPA conducted an extensive review of
the HMR to identify regulations that should be eliminated or revised.
RSPA also has held 11 public meetings requesting comment on its
hazardous materials program during 1995 at various locations nationwide
and anticipates having more public meetings in 1996. Commenters at the
public meetings addressed issues such as the need for exceptions for
materials of trade and expressed concerns regarding the potential
impacts of this rulemaking proceeding. Several stated that elimination
of exceptions provided by States could cause them extreme hardships. A
number of those concerns are addressed in this preamble and proposal.
The proposals in this SNPRM are consistent with the President's goal to
minimize regulatory requirements on industry, while maintaining an
acceptable level of safety.
V. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This supplemental notice of proposed rulemaking (SNPRM) is
considered a significant regulatory action under section 3(f) of
Executive Order 12866 and, therefore, was subject to review by the
Office of Management and Budget. The SNPRM 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 is available for review
in the docket.
B. Executive Order 12612
This supplemental notice of proposed rulemaking has been analyzed
in accordance with the principles and criteria 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 those 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 packaging or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
This proposed rule concerns packaging, labeling, marking,
placarding, and shipping documentation for hazardous materials. If
adopted, this rule would preempt State, local, or Indian tribe
requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' as the Federal
requirements. RSPA lacks discretion in this area and preparation of a
federalism assessment is not warranted.
Federal law 49 U.S.C. 5125(b)(2) provides that if DOT issues a
regulation concerning any of the covered subjects after November 16,
1990, 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
proposed that the effective date of Federal preemption for these
requirements be one year after publication of the final rule.
C. Regulatory Flexibility Act
This supplemental notice of proposed rulemaking would have minimal
impact on shippers and carriers, some of whom may be small business
entities. Based on information concerning the size and nature of
entities likely affected by this rule, I certify that this supplemental
notice of proposed rulemaking would not have a significant economic
impact on a substantial number of small entities under criteria of the
Regulatory Flexibility Act.
D. Paperwork Reduction Act
Many information collection requirements contained in the HMR are
subject to approval by the Office of Management and Budget (OMB) under
provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and
OMB implementing regulations in 5 CFR 1320. RSPA is reevaluating
information collection requirements for accuracy and conformance with
the new law. Although neither this supplemental notice nor the
preceding July 1993 notice specifically address sections of the
regulations containing information collection requirements, applying
the HMR to previously unregulated persons has the effect of making
those persons subject to any applicable information
[[Page 11489]]
collection requirements of the HMR, such as those requiring preparation
of shipping papers. RSPA intends to make adjustments to current
assessments of burden hours based on the effects of this rulemaking
action, and anticipates publishing in the near future one or more
notices in the Federal Register inviting comments on adjustments to
currently approved collections and any new collections needed to comply
with OMB requirements.
DOT cannot impose a penalty on persons for violating information
collection requirements which do not display a current OMB control
number, if required. RSPA intends to obtain current OMB control numbers
for any new or revised information collection requirements resulting
from this rulemaking action prior to implementation of a final rule.
E. Regulation 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, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 180
Hazardous materials transportation, Motor carriers, Motor vehicle
safety, Packaging and containers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 49 CFR parts 171, 173, and 180
are proposed to be amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. Section 171.1 would be revised to read as follows:
Sec. 171.1 Purpose and scope.
(a) This subchapter prescribes requirements of the Department of
Transportation governing--
(1) Offering of hazardous materials for transportation, and
transportation of hazardous materials in interstate, intrastate, and
foreign commerce by rail car, aircraft, motor vehicle, and vessel
(except as delegated at Sec. 1.46(t) of this title).
(2) Representation that a hazardous material is present in a
package, container, rail car, aircraft, motor vehicle, or vessel.
(3) The manufacture, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container which
is represented, marked, certified, or sold for use in transportation.
(b) Any person who, under contract with any department, agency, or
instrumentality of the executive, legislative, or judicial branch of
the Federal Government, transports, or causes to be transported or
shipped, a hazardous material or manufactures, fabricates, marks,
maintains, reconditions, repairs, or tests a package or container which
is represented, marked, certified, or sold by such person as qualified
for use in the transportation of a hazardous material shall be subject
to and comply with all provisions of the Federal hazardous materials
transportation law, all orders and regulations issued thereunder, and
all other substantive and procedural requirements of Federal, State,
and local governments and Indian tribes (except any such requirements
that have been preempted by the Federal hazardous materials
transportation law or any other Federal law), in the same manner and to
the same extent as any person engaged in such activities that are in or
affect commerce is subject to such provisions, orders, regulations, and
requirements.
3. In Sec. 171.8, a definition for ``Material of trade'' would be
added in alphabetical order to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Material of trade means a hazardous material that is carried on a
motor vehicle--
(1) For the purpose of protecting the health and safety of the
motor vehicle operator or passengers;
(2) For the purpose of supporting the operation or maintenance of
the motor vehicle (including its auxiliary equipment) in which it is
carried; or
(3) By a private motor carrier in direct support of a principal
business that is other than transportation by motor vehicle.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
4. The authority citation for part 173 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
5. A new Sec. 173.6 would be added to read as follows:
Sec. 173.6 Materials of trade exceptions.
(a) A material of trade (see Sec. 171.8 of this subchapter) is not
subject to any other requirements of this subchapter when transported
by motor vehicle in conformance with this section. This section is
limited to materials of trade that are--
(1) Classed in Division 2.1, 2.2, 4.1, 5.1, 5.2, 6.1, Class 3, 8,
9, or ORM-D; and
(2) Contained in a packaging having a gross mass or capacity of--
(i) Not over 0.5 L (1 quart) or 0.5 kg (1 pound), for a Packing
Group I material;
(ii) Not over 30 kg (66 pounds) for solids or 30 L (8 gallons) for
liquids, for a Packing Group II, Packing Group III, or ORM-D material;
or
(iii) Not over 75 kg (165 pounds), for a Division 2.1 or 2.2
material.
(b) This section does not apply to a hazardous material that is--
(1) Self-reactive (see Sec. 173.124);
(2) Poisonous by inhalation (see Sec. 173.133); or
(3) Assigned any of the following UN identification numbers
associated with the hazardous materials description in the Sec. 172.101
Table: 1131, 1422, 1491, 1504, 1798, 1873, 2031, 2495, 2626, 2924,
2925.
(c) The aggregate gross weight of all materials of trade on a motor
vehicle may not exceed 150 kg (330 pounds).
(d) Packaging. (1) Packagings must be leak tight for liquids and
gases, sift proof for solids, securely closed, secured against
movement, and protected against damage.
(2) Each material must be packaged in the manufacturer's original
packaging, or a packaging of equal or greater strength and integrity.
(3) Outer packagings are not required for receptacles (e.g., cans
and bottles) that are secured against movement in cages, carts, bins,
boxes or compartments.
(4) For gasoline, a packaging must be made of metal or plastic and
conform to requirements of this subchapter or requirements of the
Occupational Safety
[[Page 11490]]
and Health Administration of the Department of Labor contained in 29
CFR 1910.106.
(5) A cylinder or other pressure vessel containing a Division 2.1
or 2.2 material must conform to packaging, qualification, maintenance,
and use requirements of this subchapter, except that outer packagings
are not required when transported as specified in paragraph (d)(3) of
this section.
(e) Hazard communication. (1) Except for a DOT specification
cylinder, each package or receptacle (including a receptacle
transported without an outer packaging) must be marked to indicate the
hazardous material it contains.
(2) A DOT specification cylinder (except DOT Specification 39) must
be marked and labeled as prescribed by this subchapter.
(3) The operator of a motor vehicle that contains a material of
trade must be informed of the presence of the hazardous material and
must be informed of the requirements of this section.
(f) A material of trade may be transported on a motor vehicle under
the provisions of this section with hazardous materials other than
materials of trade without affecting the eligibility for exceptions
provided by this section.
6. A new Sec. 173.8 would be added to read as follows:
Sec. 173.8 Exceptions for non-specification bulk packagings used in
intrastate transportation.
(a) Non-specification bulk packagings. Notwithstanding requirements
for specification packagings in subpart F of this part 173 and parts
178 and 180 of this subchapter, a non-specification bulk packaging that
is used in accordance with the provisions of paragraph (c) of this
section may be used for transportation of a hazardous material by an
intrastate motor carrier until June 30, 1999.
(b) Cargo tanks for petroleum products. Notwithstanding
requirements for specification packagings in subpart F of this part 173
and part 178 of this subchapter, a non-specification cargo tank motor
vehicle, that has a capacity of less than 13,250 liters (3,500 gallons)
and that is used in accordance with the provisions of paragraph (c) of
this section, may be used by an intrastate motor carrier for
transportation of a flammable liquid petroleum product.
(c) Additional requirements. A packaging used under the provisions
of paragraph (a) or paragraph (b) of this section must--
(1) Be operated exclusively by an intrastate motor carrier and used
as a packaging for hazardous material prior to July 1, 1996;
(2) Conform to requirements of the State in which it is used;
(3) Be authorized by a State statute or regulation in effect on and
before July 1, 1996, for use as a packaging for the hazardous material
being transported;
(4) Conform to all requirements in part 180 (except for
Sec. 180.405(g)) of this subchapter in the same manner as required for
a DOT specification MC 306 cargo tank motor vehicle. A cargo tank motor
vehicle that is used under the provisions of paragraph (b) of this
section must meet these provisions on and after July 1, 1999;
(5) Be offered for transportation and transported in conformance
with all other applicable requirements of this subchapter; and
(6) Not be used to transport a flammable cryogenic liquid,
hazardous substance, hazardous waste, or marine pollutant.
PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS
7. The authority citation for part 180 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
8. In Sec. 180.409, the introductory text of paragraph (a) would be
revised, paragraph (b) would be redesignated as paragraph (c), and a
new paragraph (b) would be added to read as follows:
Sec. 180.409 Minimum qualifications for inspectors and testers.
(a) Except as otherwise provided in this section, any person
performing or witnessing the inspections and tests specified in
Sec. 180.407(c) must--
* * * * *
(b) A person who performs only annual external visual inspections
and leakage tests on a cargo tank motor vehicle with a capacity of less
than 13,250 liters (3,500 gallons) used exclusively for flammable
liquid petroleum fuels is not required to be registered in accordance
with subpart F of Part 107 of this chapter. In addition, the person who
signs the inspection report required by Sec. 180.417(b) of this subpart
for such cargo tank motor vehicles is not required to be registered.
Although not required to register, a person who performs visual
inspections or leakage tests or signs the inspection reports must have
the knowledge and ability to perform such inspections and tests and
must perform them as required by this subchapter.
* * * * *
Issued in Washington, DC on March 13, 1996 under authority
delegated in 49 CFR part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-6577 Filed 3-19-96; 8:45 am]
BILLING CODE 4910-60-P
