Hazardous Materials in Intrastate Transportation

[[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.

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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

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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