Hazardous Materials in Intrastate Commerce

SUMMARY: This final rule requires that all intrastate shippers and

carriers comply with the Hazardous Materials Regulations (HMR) with

certain exceptions. This action is necessary to comply with amendments

to the Federal hazardous materials transportation law mandating that

DOT regulate the transportation of hazardous materials in intrastate

commerce. The intended effect of this rule is to raise the level of

safety in the transportation of hazardous materials by applying a

uniform system of safety regulations to all hazardous materials

transported in commerce throughout the United States.

DATES: Effective date: October 1, 1997.

Permissive compliance date: Compliance with the requirements as

adopted herein is authorized as of April 8, 1997. This time period

provides sufficient time for receipt and resolution of any petitions

for reconsideration received on this final rule.

FOR FURTHER INFORMATION CONTACT: Diane LaValle or Deborah Boothe, (202)

366-8553, Office of Hazardous Materials Standards, RSPA, 400 Seventh

Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

Currently, the Hazardous Materials Regulations (HMR; 49 CFR parts

171-180) do not apply to highway transportation by intrastate carriers,

except for the 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), then an agency of

Congress, entitled ``Transportation of Hazardous Materials,''

highlighted the need for national uniformity in the regulation of

hazardous materials transportation and packaging requirements.

In response to the OTA report, RSPA published an advance notice of

proposed rulemaking in the Federal Register on June 29, 1987 [52 FR

24195] which requested comments on extending the application of the HMR

to all intrastate transportation in commerce as a means of promoting

national uniformity and transportation safety. In 1990, the Federal

hazardous material transportation law was amended to require the

Secretary to regulate hazardous materials transportation in intrastate

commerce. 49 U.S.C. 5103(b)(1)

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) published on July 9, 1993 [58 FR

36920]. A correction to the NPRM was published on July 15, 1993 [58 FR

38111]. The NPRM requested comments on the need for, and possible

consequences of, extending the application of the HMR to all intrastate

transportation of hazardous materials in commerce.

More than 200 comments were received in response to the NPRM. While

most of the commenters supported the idea of uniformity, a significant

number requested relief from the application of the HMR (or portions

thereof). Among the concerns expressed were the appropriateness of

regulating: (1) Small quantities of hazardous materials that are used

incidental to a primary business that is other than transportation; and

(2) the operation of small cargo tank motor vehicles.

The major objections raised were that: (1) uniform treatment of all

intrastate hazmat shippers and carriers under the HMR would be

extremely detrimental to rural and small businesses, including

petroleum marketers and farmers; (2) although all States have adopted

the HMR, certain States have deviated from the regulations,

particularly regarding highway shipments, e.g., by ``grandfathering''

non-DOT specification cargo tanks, or exempting farm operations; and

(3) regulation of user quantities of hazardous materials transported

incidental to the primary responsibility of the carrier (i.e.,

materials of trade) could create burdens for these carriers.

In response to comments to the NPRM, RSPA published a supplemental

notice of proposed rulemaking (SNPRM) in the Federal Register on March

20, 1996 [61 FR 11484]. The three proposals addressed in the SNPRM were

exceptions from the HMR for: (1) ``Materials of trade,'' (2) non-

specification small 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 small

cargo tank motor vehicles used to transport flammable liquid petroleum

fuels.

II. Summary of Regulatory Amendments

RSPA received more than 1200 comments on the SNPRM from a variety

of organizations, including trade associations, petroleum marketers,

public service commissions, state police, farmers and farm co-

operatives, water and power companies, members of Congress, State and

Federal government agencies, waste haulers and fertilizer associations.

A. Extension of the HMR to Intrastate Transportation

Commenters in support of the expansion of the HMR to intrastate

carriage stated that deviations from a uniform domestic scheme should

be minimized. One commenter stated that the report by OTA entitled

``Transportation of Hazardous Materials'' was right on target by

identifying the need for uniformity in transportation of hazardous

materials, and that the action taken by RSPA in response to the report

and the Federal hazardous materials transportation law was correct.

Petroleum marketers and the agricultural community, many of whom

are small businesses, opposed extending the HMR to intrastate movement

of hazardous materials. Some of these commenters stated that the

additional requirements, such as for shipping papers and placarding,

would provide little or no benefit to public safety when compared to

the increased cost of regulation. These commenters urged RSPA to issue

an exception from the regulations that recognizes the needs of

agricultural producers by waiving the application of certain

requirements of the HMR. Other commenters expressed concerns about the

requirements for specification cargo tanks used to transport hazardous

materials (other than combustible liquids) and stated that the cost of

retrofitting non-specification cargo tanks would be prohibitive.

As required by the Federal hazardous materials transportation law,

this rule extends the application of the HMR to intrastate

transportation of hazardous materials by highway and provides

exceptions for: (1) Materials of trade transported by interstate and

intrastate motor carriers; (2) certain non-

[[Page 1209]]

specification packagings in intrastate transportation; (3) inspectors

of small cargo tank motor vehicles, used for flammable liquid petroleum

fuels in interstate and intrastate transportation; and (4) certain

agricultural products transported in intrastate commerce under

specified conditions. Section 171.1 is revised to extend the scope of

the HMR to intrastate transportation of hazardous materials. In

addition Sec. 171.8 is reorganized for clarity and therefore

republished in its entirety for the convenience of the reader.

B. Exceptions for Materials of Trade

Prompted by comments submitted to the NPRM and petitions for

rulemaking, RSPA proposed in the SNPRM to limit regulatory requirements

for the transportation of certain hazardous materials used as materials

of trade. Factors leading to RSPA's determination included: (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 being transported.

Materials of trade 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 also include certain hazardous materials

carried by a private motor carrier engaged in a principal business

which is other than transportation, such as lawn care, plumbing,

welding, door-to-door sale of consumer goods, and farm operations.

In proposed Sec. 173.6, RSPA identified types and quantities of

hazardous materials for which exceptions would be provided. Specific

limitations (such as maximum gross weight of materials of trade that

may be carried on a motor vehicle) and safety provisions (such as

packaging and hazard communication) were proposed to strike a balance

between safety and the impact of full application of the HMR.

Most commenters to the SNPRM supported the materials of trade

proposal, and offered many suggestions for its modification or

expansion.

1. Definition of material of trade (Sec. 171.8)

One commenter requested that the first two criteria (carried for

the purpose of protecting the health and safety of the motor vehicle

operator or passengers; and carried for the purpose of supporting the

operation or maintenance of the motor vehicle) should be expanded to

all modes allowing materials of trade to be carried by air or water.

The same commenter also requested that the third criteria (carried by a

private carrier in direct support of a principal business that is other

than transportation) should be limited to materials used that day which

would limit the scope of the materials of trade exception. Two

commenters requested that RSPA expand the third criteria of the

definition from private motor carrier to include use of a contract

carrier dedicated to a private carrier (i.e., an exclusive use contract

carrier). In addition, some commenters noted that the materials of

trade definition would exclude maintenance vehicles such as tow trucks

and railroad motor vehicles that carry materials of trade for the

purpose of supporting the operation or maintenance of another motor

vehicle or a rail car.

RSPA believes that the materials of trade exception should apply

only to highway transportation, as proposed. The HMR already provide

modal exceptions for certain hazardous materials used as carrier's

equipment and supplies (e.g, Sec. 175.10). This final rule is intended

to provide similar relief for highway transportation. The second

criteria, however, is expanded to include maintenance vehicles that

carry materials of trade for the purpose of supporting the operation or

maintenance of motor vehicles rather than ``the motor vehicle on which

it is carried'' as was originally proposed. Under the third criteria,

any private carrier, including a railroad operating its motor vehicles

in maintenance-of-way service, is eligible for the materials of trade

exception. RSPA did not intend to limit the materials of trade

exception to materials used the same day. Rather, the primary factor is

that the hazardous material is used incidental to the private carrier's

principal business.

2. Limitation of Materials of Trade Exception to Certain Classes of

Hazardous Materials (Sec. 173.6(a))

Commenters requested inclusion of the following additional classes

and divisions of hazardous materials within the materials of trade

exception:

Test kits containing Division 4.3 materials;

Power cartridge devices, Division 1.4;

Division 1.4S igniters used by railroads for welding rail;

Division 1.4G railway torpedoes;

Division 6.2 infectious substances (home health care);

Display fireworks; and

Chlorine gas in 20-pound cylinders.

RSPA agrees that test kits containing small amounts of Division 4.3

materials may be safely transported as materials of trade. These types

of test kits are frequently transported and used by electric utilities

and used oil handlers and contain very small quantities of a Division

4.3 material. Therefore, Sec. 173.6 includes Division 4.3 materials

when transported in quantities that correspond to the small quantity

exceptions in Sec. 173.4. A power device cartridge (used to project

fastening devices) which is classed in Division 1.4 Compatibility Group

S (1.4S) may be reclassed as ORM-D if transported in accordance with

the requirements of Sec. 173.63(b). A power cartridge device that is

reclassed as ORM-D meets the criteria for a material of trade.

The level of hazard posed by other materials suggested by

commenters is not consistent with the intent of the materials of trade

exception. For that reason, explosives such as igniters used for

welding rail, railway torpedoes, Division 6.2 materials (infectious

substances and regulated medical waste), Division 2.3 materials (such

as chlorine gas, a poison by inhalation material in Hazard Zone B) and

display fireworks are not included in the materials of trade exception.

3. Gross Mass or Capacity of Packagings for Materials of Trade

(Sec. 173.6(a))

Some commenters requested that larger container capacities be

authorized for materials of trade, such as a permanently attached tanks

having a capacity not greater than 400 gallons for dilute mixtures of

hazardous materials.

Commenters expressed concern that, while a small container filled

with a concentrated hazardous material may meet the criteria for

material of trade, when the same amount is transported in an aqueous

solution in a bulk packaging, it no longer qualifies for the material

of trade exception. An example is chlorpyrifos, a pesticide, which has

a reportable quantity of one pound. As a concentrate, chlorpyrifos

would qualify as a material of trade. However, due to its one-pound

reportable quantity, when diluted with water in a 300-gallon capacity

cargo tank or portable tank to the 1 or 2 percent concentration in

which the product is normally applied, the tank will contain a

reportable quantity and would be a hazardous substance subject to the

HMR as a Class 9 material. Notwithstanding the fact that the same

amount of chlorpyrifos (in concentrated form) would be excepted from

most regulatory requirements when transported in conformance with

[[Page 1210]]

Sec. 173.6, under the proposal a tank of diluted material would not be

subject to regulatory relief. In some cases these solutions may be

diluted to such an extent that they are no longer subject to the HMR.

RSPA agrees that the increased volume that comes with dilution poses no

additional threat to the environment. Accordingly,

Sec. 173.6(a)(1)(iii) authorizes a dilute mixture (up to 2 percent

concentration) in a non-specification bulk packaging having a capacity

equal to or less than 1500 liters (400 gallons) when properly classed

as a Class 9 liquid. A material of trade is authorized in a packaging

having a maximum capacity of 30 liters (8 gallons). When the 30 liter

quantity is diluted with 1500 liters of water, it produces a 2 percent

concentration mixture. A condition specified in Sec. 173.6(c)(2)

requires that the bulk packaging (capacity greater than 119 gallons)

containing the diluted material of trade must be marked with the four-

digit identification number marking (as prescribed by Sec. 172.332) to

be authorized for transportation as a material of trade.

4. Materials Excluded From the Materials of Trade Exception

(Sec. 173.6(a)(4))

A few commenters stated that hazardous materials associated with

the identification numbers UN2924 and UN2925 should not be excluded

from the materials of trade exception. These commenters contended that

other dual hazard materials are authorized under proposed

Sec. 173.6(a)(1), and use of a generic proper shipping name for such

dual hazard materials is not reason to exclude them from the materials

of trade exception. Commenters also stated that the list of prohibited

hazardous materials associated with certain identification numbers was

recently removed from the small quantity exception in Sec. 173.4. RSPA

agrees and the identification numbers proposed for inclusion in

paragraph (a)(4) are not adopted.

Commenters requested clarification on the inclusion of hazardous

wastes as materials of trade. RSPA confirms that hazardous wastes are

not included in the materials of trade exception. Inclusion of

hazardous wastes as materials of trade would conflict with other

requirements such as those pertaining to manifests (40 CFR Part 262 and

49 CFR 171.3 and 172.205).

5. Packaging for Materials of Trade (Sec. 173.6(b))

Many commenters requested clarification of the packaging

requirements for materials of trade. Some commenters stated that it

would not be possible to determine whether a non-tested package has

equal or greater strength and integrity as one that meets DOT's

performance standards. Another commenter stated that the packaging

requirements for materials that are not manufactured should be

clarified. No alternatives were suggested by commenters.

By requiring the manufacturer's original packaging, RSPA is

effectively requiring DOT-authorized packagings or their equivalent for

materials of trade. A packaging that has equal or greater strength and

integrity should be capable of passing the performance tests required

for a packaging for that particular hazardous material. As with all

hazardous materials packagings, the packaging must be compatible with

the lading. If the manufacturer's original packaging is not available,

shippers may refer to the HMR to determine what type of packaging is

authorized or required and then make a determination as to what

packaging may be used for that material of trade. If doubt remains,

shippers and carriers are advised to use a specification packaging.

Commenters also requested an exception from the packaging

requirements for salespersons to transport hazardous materials in an

open box. An exception is already provided from the outer packaging

requirements for receptacles that are secured against movement in

cages, carts, bins, boxes or compartments in Sec. 173.6(b)(3).

Therefore, a salesperson may transport an open box containing inner

receptacles as long as they are secured against movement.

One commenter stated that requirements for packaging gasoline

should reference the Occupational Safety and Health Administration's

(OSHA) regulations applicable to construction activities (29 CFR

1926.152). These OSHA requirements address storage and use of gasoline

at construction sites rather than transportation. The OSHA standard

that addresses safety cans for gasoline is 29 CFR 1910.106 which is

referenced as an option for packaging gasoline in Sec. 173.6(b)(4).

One commenter stated that RSPA should require that all cylinders

have the gauge removed and a protective cap in place for cylinders

capable of receiving a cap. Another commenter asked whether manifolding

is authorized for compressed gas cylinders. RSPA believes that it is

unnecessary for cylinders to have the gauges removed and protective

caps in place. Section 173.6(b)(1) requires all materials of trade

packages to be securely closed, secured against movement, and protected

against damage. Accordingly, all valves must be closed on all

cylinders, but manifolding of cylinders charged with gases that are

materials of trade is not prohibited.

6. Hazard Communication (Sec. 173.6(c))

Several large shipping and manufacturing companies requested that

the materials of trade marking requirement include the manufacturer's

name and telephone number, precautionary/warning statements, trade name

and associated hazard, or at least the proper shipping name and

identification number.

RSPA is satisfied that marking each package with an indication of

the hazardous material it contains (with the addition of marking ``RQ''

on a package containing a reportable quantity of a hazardous substance)

is adequate for a material of trade. In case of a spill, carriers need

to know if the spill needs to be reported to the National Response

Center, thus the requirement for the ``RQ'' marking. Additional marking

requirements would be of small value due to the quantity limits of most

hazardous materials allowed under the materials of trade exception, and

in view of the fact that a cylinder containing compressed gas must bear

the required DOT hazard warning label. A provision is added in

Sec. 173.6(c)(1) to require a packaging to be marked ``RQ'' when it

contains a hazardous substance in a reportable quantity.

One commenter stated that vehicle operators should be made aware of

appropriate emergency action. A few of the commenters believe that

hazardous materials require more than a passing knowledge that they

exist to transport them safely. One commenter stated that carriers

should still be required to provide training for their employees.

One purpose of the materials of trade exception is to provide

appropriate relief to private carriers transporting small quantities of

hazardous materials. These private carriers generally transport the

same types of materials repeatedly. Through experience, they gain a

basic knowledge of the hazardous material being transported. RSPA does

not believe these types and quantities of hazardous materials warrant

more restrictive regulation than what was proposed other than the

retention of the ``RQ'' marking requirement, which has been in effect

since 1980.

7. Aggregate gross weight of materials of trade on a vehicle

(Sec. 173.6(d))

Many commenters wanted the maximum gross weight allowed on the

vehicle raised from 150 kg (330

[[Page 1211]]

pounds), especially when transporting compressed gas cylinders. They

stated that cylinders can weigh up to 200 pounds each, and various

commenters suggested raising the weight restriction to levels between

500 and 1000 pounds. RSPA agrees that steel cylinders could easily

exceed the maximum gross weight for materials of trade on a transport

vehicle. Paragraph (d) allows a maximum gross weight of 200 kg (440

pounds) which would typically accommodate two cylinders of compressed

gas, each having a gross weight of 100 kg (220 pounds) as limited by

Sec. 173.6(a)(2).

C. Exceptions for Certain Non-Specification Packagings Used in

Intrastate Transportation (Sec. 173.8)

The proposals in Sec. 173.8 generated numerous comments both in

support of the proposals and in opposition to the exceptions proposed.

Comments in support of the proposals were generally submitted by

petroleum marketer associations and individual marketers. Comments

opposed to the proposals were submitted by State agencies, chemical

manufacturers, interstate motor carrier associations, and the National

Transportation Safety Board (NTSB).

Some commenters, such as the NTSB, oppose any use in hazardous

materials service (other than for combustible liquids) of any non-

specification cargo tank past the three year transition provision

proposed in the SNPRM. Commenters, including State agencies, stated

that an authorization to allow the continued use of non-specification

cargo tanks beyond the three year transition period will continue to

place the public at risk, by allowing substandard levels of safety.

Commenters believe that the level of potential hazard presented by a

cargo tank motor vehicle of less than 3,500 gallons is comparable to

risks presented by larger cargo tanks and that the fact that these

cargo tank motor vehicles operate within a single State does not

diminish the risk. The Hazardous Materials Advisory Council stated that

deviations from a uniform domestic regulatory scheme should be

minimized. The State Police of Idaho described a scenario involving a

small cargo tank motor vehicle that resulted in a major hazardous

materials incident and forest fire. As a result of this incident, Idaho

implemented a complete statewide inspection program on similar type

motor vehicles. In support of their opposition to the proposal in this

section the Idaho State Police stated:

The result of this incident caused us to complete a statewide

inspection effort on all similar type vehicles. We were alarmed at

what we found. Several tanks of the same size as the one involved

with the fire were found to have the same type of leaks, going

directly on the exhaust system under the tank. Other violations

noted included domes with missing seals, inspections that were many

years expired, many drivers with no hazardous materials training at

all, and much of the equipment in disrepair. We found that in many

cases the people operating this type of tankers had just bought the

business and started hauling gasoline * * *.

* * * Yet we found a huge majority of this type of tankers that

were literally bombs waiting to go off. We believe this is not a

problem unique to Idaho, and it is representative of this type of

tankers across the nation.

There are many reasons for the poor condition of this type of

tankers. They typically travel state and county roads. They rarely,

if ever travel through ports of entry or weigh stations and are

almost never inspected. Yet, this type of vehicle in a poor state of

repair present the greatest danger to safety when compared to large

semi-tanker type units.

Small ``Mom and Pop'' tanks load and unload right next to homes,

schools, hospitals and businesses of all kinds and sizes. They are

close to large numbers of people as they travel around loading and

unloading. Yet the drivers/owners/operators have the least training

and the poorest equipment.

Comments in support of the proposed exceptions provided in this

section state that the proposal is a good first step in reducing the

regulatory burdens on the small business petroleum marketer. Commenters

believe that States should be allowed to provide exceptions for

businesses within their State. They stated that the safety record of

these small cargo tank motor vehicles is very good. They also state

that it would be extremely burdensome to totally replace the fleet of

non-specification cargo tanks with specification cargo tanks, without

quantifiable data that demonstrate significant increases in safety.

RSPA believes that the exceptions provided in Sec. 173.8 are

responsive to concerns about the economic and regulatory impacts on

small businesses that currently operate non-specification small cargo

tanks. RSPA also believes that the conditions prescribed in this

section provide for an acceptable level of safety. As provided in this

final rule, a small non-specification cargo tank motor vehicle may only

be operated by an intrastate motor carrier of flammable liquid

petroleum products in a State that allows its use and it must be

operated in conformance with the requirements of that State. In

addition, after June 30, 2000, the tank would have to meet the Part 180

requirements (except for Sec. 180.405(g)) in the same manner as

required for DOT MC 306 cargo tank motor vehicles. Since the exception

for continued use of non-specification cargo tanks applies only to

those in operation within a State prior to July 1, 1998, no additional

non-specification cargo tanks may be placed in service after that date.

Therefore, as the non-specification cargo tanks are replaced, they

would be replaced with cargo tanks meeting the specification

requirements of the HMR.

The Petroleum Marketers Association of America (PMAA) requested

that RSPA extend the date that a non-specification cargo tank may be

authorized by a state statute or regulation. They requested an

additional two years, until July 1, 1998, so that state legislatures

would be able to provide such exceptions prior to implementation of

these regulations. As requested, the dates within this section have

been revised to provide an additional two years for States to

incorporate any additional exceptions in their State laws or

regulations. Additionally, a three year transition was intended for

bulk packagings under Sec. 173.8 (a) and (d)(6); therefore, the dates

referenced in these paragraphs have been changed to read ``June 30,

2000.''

PMAA also asked that RSPA adopt a ``truck by truck interpretation''

of what constitutes an ``intrastate motor carrier,'' because it

believes that a company should not be considered an interstate carrier

of hazardous materials when its hazardous materials vehicles never

leave its ``home'' State, but other vehicles used by the carrier

transport non-hazardous materials across State lines. In addition, PMAA

asked that ``intrastate'' transportation be interpreted to include

movements that are no more than 100 miles outside the carrier's

``home'' State, because one delivery out of State ``to a person who

would otherwise never receive any gasoline or diesel fuel * * * will

cause all of the other trucks in the fleet to be subject to the federal

HMR.''

In essence, PMAA is asking RSPA to create new exceptions from

requirements in the HMR that have, for many years, been applicable to

all interstate motor carriers. If RSPA were to adopt PMAA's request,

regarding movements up to 100 miles, an adjacent State would be

compelled to accept exceptions that apply in a carrier's ``home'' State

even if those exceptions had not been adopted in the adjacent State.

RSPA has consistently interpreted ``interstate motor carrier'' as any

carrier that, in the course of its business, travels between States, or

between a State and a foreign country, or between two points in a

single State through another State or a foreign country. For this

reason,

[[Page 1212]]

RSPA believes that the proper meaning of the term ``intrastate

commerce,'' as used in 49 U.S.C. 5103(b)(1) and the HMR, includes only

those carriers who transport property or persons solely within the

boundaries of a single State.

One commenter requested that the capacity of a cargo tank motor

vehicle be revised to read ``3,500 gallons or less'' rather than ``less

than 3,500 gallons.'' RSPA is not adopting this request. Limiting the

capacity of these cargo tanks to ``less than 3,500 gallons'' is

consistent with the registration requirements in Sec. 107.601.

The California Highway Patrol (CHP) stated that the proposed volume

limitations are inadequate for gasoline used to refuel other vehicles

and equipment. According to CHP, in the State of California currently

there are thousands of tanks smaller than 119 gallons used to transport

gasoline as cargo. These tanks are permanently secured to transport

vehicles and are protected from damage or leakage in the event of a

rollover. CHP states that these tanks provide farm, timber and

construction industries with a practical, safe and economical means of

dispensing gasoline for equipment used on job sites. Currently, these

packagings are not considered cargo tanks, since by definition a cargo

tank is a bulk packaging (i.e., has a capacity greater than 119

gallons). Since the small 119-gallon tanks are not cargo tanks they are

not covered by the exceptions provided in this section. RSPA has

determined that the exception in proposed Sec. 173.8 for small ``cargo

tanks'' used to transport flammable liquid petroleum products should be

equally applicable to non-bulk metal permanently secured tanks that are

authorized by the State in which they are transported. Therefore, a

provision is added in paragraph (c) to authorize non-bulk tanks, that

are permanently mounted and protected against leakage or damage in the

event of a turnover, for transportation of flammable liquid petroleum

products. As such, after June 30, 2000, these non-bulk tanks would be

required to meet the part 180 inspection and testing requirements

(except Sec. 180.405(g) which addresses manhole assemblies) as if they

were MC 306 cargo tank motor vehicles. Packagings that cannot meet the

part 180 requirements must be removed from hazardous materials service

by the end of the three year transition period, consistent with the

transition period for other non-specification bulk packagings

authorized under Sec. 173.8 (b) and (c).

The Petroleum Marketers of Iowa (PMI) requested that RSPA delay

publication of this final rule as it relates to the hydrostatic or

pressure testing of cargo tanks used in intrastate transportation. PMI

states that they are in the process of requesting that the Iowa State

University Center for Nondestructive Testing conduct a review and study

of the testing of these cargo tanks. RSPA is not delaying publication

of this final rule as requested by PMI because any proposal for

alternative non-destructive testing procedures for cargo tanks would be

beyond the scope of this rulemaking proceeding. In addition, a three-

year transition period is being provided for application of the testing

and inspection requirements of Part 180 to intrastate carriers. This

should be sufficient time for the submission and handling of a well

supported petition for rulemaking on the subject. Adoption of

alternative or substitute testing procedures for the currently required

hydrostatic and pressure testing requirements for cargo tanks could

have a substantial effect on the manner of determining the continuing

qualification and integrity of all cargo tanks, specification and non-

specification alike. RSPA has encouraged PMI to consult with

potentially affected parties, such as the Truck Trailer Manufacturers

Association, National Tank Truck Carriers, Inc., the Federal Highway

Administration's Office of Motor Carrier Safety, as well as RSPA, in

regard to the methodologies to be employed in such a study.

Other commenters requested an expansion of the exception to include

products such as petroleum crude oil, and natural gas liquids and

condensates. Petroleum crude oil and natural gas liquids are flammable

liquid petroleum products and, as such, are already afforded the

exception. RSPA is clarifying that although all flammable liquid

petroleum products are included in the exception in Sec. 173.8 (b) and

(c), liquefied petroleum gases are not. The HMR currently provide for

the use in intrastate commerce of certain non-specification cargo tanks

for propane, see 173.315(k). RSPA does not believe that an expansion of

the materials covered by the exceptions provided in this section is

necessary or warranted.

Based on the foregoing and the changes described above, Sec. 173.8

is otherwise adopted as proposed.

D. Exception for use of a Registered Inspector

RSPA received several comments regarding the proposed exception in

Sec. 180.409 that allows a person to perform an annual external visual

inspection and leakage test on small cargo tank motor vehicles used

exclusively for flammable liquid petroleum fuels without being a

registered inspector. Commenters to the SNPRM disagreed over this

exception.

Commenters who opposed the exception stated that the use of

substandard cargo tanks to transport hazardous materials over public

highways would reduce safety. One commenter stated that registered

inspector test costs were nominal, and that initially over 90% of all

3500-gallon tanks required repairs to pass the tests when such tests

became mandatory under the part 180 requirements. After five years of

annual testing, only 20-25% of tanks required repairs to pass the

tests. Other commenters opposed to the proposal stated that the current

requirement that inspectors be registered should be retained. They also

believe that the training and qualifications of persons performing

inspections, who are not registered, would not be adequate. The Idaho

State Police stated: ``Our previous first hand observations and

experience indicate this absolutely will not work. Our inspections

revealed all the tank defects that would have been found had the tanks

been inspected. Several owners told us they had checked their tanks and

did not see anything wrong with them. Many did not even know how to

check internal valves for correct operation.''

Commenters in support of the exception stated that it would provide

``valuable relief to industry.'' They noted that using a registered

inspector resulted in time away from their business to travel to a

registered inspector site and financial hardship. A few commenters

requested elimination of the annual leak test and the 5-year

hydrostatic test altogether, and that RSPA should require a monthly

visual inspection to be performed by the owner, including recordkeeping

requirements. RSPA has also been asked by the Federal Highway

Administration to clarify that the exception applies only to persons

who perform visual inspection and leakage tests on their own cargo tank

motor vehicles.

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]. RSPA

determined that periodic tests were necessary for these small cargo

tanks to ensure that product retention integrity is maintained. No new

data was presented

[[Page 1213]]

for consideration sufficient to support a revision of this requirement.

After consideration of all comments, RSPA believes that the

regulatory relief requested by small businesses, is not from the

registration procedure itself, but is relief from the educational and

years of experience requirements that prevent more persons who wish to

perform these tests from registering. In addition, RSPA is clarifying

that the exception from registration provided in Sec. 180.409(c) for

inspectors of non-bulk permanently secured tanks for flammable liquid

petroleum fuel applies only to motor carriers who perform the annual

visual inspection and leakage test on motor vehicles that they own or

control.

In this final rule RSPA is providing exceptions from the education

and years of experience requirements in the definition of ``Registered

Inspector'' in Sec. 171.8 for inspectors of small cargo tank motor

vehicles carrying flammable liquid petroleum fuels. These inspectors

must still register under Part 107 of this chapter. RSPA is also

clarifying that this exception applies only if the person performs the

annual external visual inspection and leakage tests on cargo tanks that

they own or operate. In addition, inspectors of permanently mounted

non-bulk tanks authorized under Sec. 173.8(c) are totally excepted from

the registration requirements. Motor carriers should be aware that the

other tests required for these permanently mounted tanks by

Sec. 180.407(c), e.g., the periodic hydrostatic test, must be performed

by a registered inspector. Cargo tank repair, modification, stretching

and rebarreling are also required to be performed by a registered

facility.

E. Exceptions for Agricultural Operations

RSPA received more than 500 comments from farmers and agricultural

supply businesses who expressed concern that a final rule would

prohibit states from granting exceptions for farmers. Some of these

commenters agreed that, although uniform regulations promote consistent

enforcement of the HMR, the nature of agriculture and its importance to

their state's economy demands that farmers be granted some reasonable

relief from the impact of full application of the HMR. Commenters

alleged that the loss of intrastate exemptions would undoubtedly have a

major economic impact on the agricultural industry. They also claimed

that costs would be approximately $2,000 to $3,500 per year per farm.

They strongly encouraged RSPA to develop an exception for agricultural

movements consistent with currently authorized state exceptions.

Specific requests included exceptions for: (1) Agricultural products in

movements of up to 5,000 pounds of a single class of hazardous material

on a transport vehicle; (2) any quantity of agricultural products when

diluted in water in preparation for field application; (3) ammonium

nitrate fertilizer when transported in fertilizer application equipment

in quantities of less than 468 cubic feet; and (4) diesel fuel and

gasoline when transported in metal cargo tanks of up to 300 gallons

capacity.

In a conference report (H.R. Rep. No. 785, 104th Cong., 2d Sess. 67

(1996)) accompanying the FY 1997 DOT appropriations bill, Congress

expressed concerns that this rulemaking might increase compliance costs

to farmers and agribusinesses and encouraged RSPA ``to give serious

consideration to establishing an agriculture exemption consistent with

similar exemptions already granted by the department.''

RSPA believes that confusion exists on the estimates of the burden

of complying with the HMR. For example, a carrier who routinely

transports the same hazardous material may use a ``permanent'' shipping

paper by laminating a document containing the required description of

the materials and emergency response information. In this circumstance,

it is not necessary to prepare a new document for each trip. Other

commenters believe that this final rule will require more farmers to

obtain a commercial drivers license (CDL) or comply with a different

level of financial responsibility. Nothing in this final rule will

require any additional person to obtain a CDL, nor does it eliminate

any waivers from the CDL authorized by the Federal Highway

Administration. Other commenters still mistakenly believe that this

final rule will require compliance with the Federal Motor Carrier

Safety Regulations (FMCSR; 49 CFR Parts 390-397). For example, the

Illinois Farm Bureau stated that for those farmers who haul hazardous

materials, under the proposed regulation, part 391 of the FMCSR would

be applied to them. As stated the preamble to the SNPRM, RSPA has

determined that this final rule will not subject additional motor

carriers, including farmers, to the provisions of the FMCSR. RSPA did

not propose to and has not subjected any new motor carriers to the

provisions of the FMCSR. The provisions of Sec. 177.804 remain

unchanged and do not extend the application of FMCSR requirements to

motor carriers not currently required to comply with the FMCSR. The

regulations that address CDL requirements, financial responsibility

requirements, and drug testing are independent requirements and nothing

in this final rule impacts their applicability to a motor carrier.

RSPA agrees that agricultural operations should be recognized (see

Sec. 173.5 in the present regulations) in those States that have chosen

to provide exceptions, but not necessarily to the same extent as the

present state exceptions.

RSPA is adding definitions for ``agricultural product'' and

``farmer'' in Sec. 171.8 and is providing exceptions from the

requirements of Subparts G (Emergency Response Information) and H

(Training) of Part 172 of this subchapter, in addition to exceptions

already provided in Sec. 173.5 for transport by farmers when such a

transportation activity is authorized before July 1, 1998 by the State

in which the transportation takes place. RSPA believes that the

exceptions provided in Secs. 173.5 (Agricultural operations), 173.6

(Materials of trade), and 173.8 (Exceptions for non-specification

packagings used in intrastate transportation) will provide substantial

though not total relief to farmers. For example, many small quantities

of packaged hazardous materials meet the definition of materials of

trade and may be transported with minimum shipping requirements, such

as a general marking on the package to communicate hazard warning

information, and notification to the motor vehicle operator of the

materials of trade provisions for stowage and securely closing

packages. Dilute materials (up to 2 percent concentration) in aqueous

solutions that are properly classed as Class 9 materials will qualify

for the materials of trade exception when in packagings having a

capacity equal to or less than 1500 liters (400 gallons). In addition,

flammable liquid petroleum products in intrastate transportation are

authorized to be transported in small non-specification cargo tanks if

authorized by the State before July 1, 1998. The other requirements of

the HMR, including marking and placarding vehicles, hazmat training,

shipping papers, emergency response information and emergency response

telephone number requirements, except as stated in Sec. 173.5(a) apply

to the hazardous materials being transported under this section.

In addition to the other exceptions provided in this section, RSPA

is providing an exception, under specified conditions, from the HMR for

movements of agricultural products, excluding Class 2 materials, that

are

[[Page 1214]]

moved between fields of a single farm. This exception applies to a

farmer, who is an intrastate private motor carrier, and who transports

an agricultural product between fields of his farm over local roads.

Movement of the agricultural product must conform to the requirements

of the State in which it is transported and must be specifically

authorized by current State law or regulation in effect before July 1,

1998. For the purposes of this section, a local road does not include

an ``interstate highway.'' RSPA believes that this exception provides

regulatory relief for farmers without compromising safety.

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a significant regulatory action under

section 3(f) of Executive Order 12866 and, therefore, was reviewed by

the Office of Management and Budget. This final rule is considered

significant under the Regulatory Policies and Procedures of the

Department of Transportation (44 FR 11034) due to significant public

and congressional interest. A regulatory evaluation is available for

review in the Docket.

B. Executive Order 12612

This final rule has been analyzed in accordance with the principles

and criteria contained in Executive Order 12612 (``Federalism''). The

Federal hazardous materials transportation law (49 U.S.C. 5101-5127)

contains an express preemption provision that preempts State, local,

and Indian tribe requirements on certain covered subjects. Covered

subjects are:

(i) the designation, description, and classification of hazardous

material;

(ii) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(iii) the preparation, execution, and use of shipping documents

pertaining to hazardous material and requirements respecting the

number, content, and placement of such documents;

(iv) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(v) the design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous material.

This rule concerns the packaging, marking, labeling, placarding and

description of hazardous materials on shipping papers. This rule

preempts State, local, or Indian tribe requirements in accordance with

the standards set forth above.

Thus, RSPA lacks discretion in this area, and preparation of a

federalism assessment is not warranted. Title 49 U.S.C. 5125(b)(2)

provides that if DOT issues a regulation concerning any of the covered

subjects, DOT must determine and publish in the Federal Register the

effective date of Federal preemption. That effective date may not be

earlier than the 90th day following the date of issuance of the final

rule and not later than two years after the date of issuance. RSPA

determined that the effective date of Federal preemption for the

requirements in this rule concerning covered subjects is January 1,

1998.

C. Regulatory Flexibility Act

This final rule will affect many small business entities that ship

or transport hazardous materials, but any adverse economic impact

should be minimal. Many small entities affected by this final rule will

receive relief from current regulatory requirements. The regulatory

evaluation developed in support of this final rule includes a benefit-

cost analysis that favors its adoption, primarily due to the positive

net benefits that may be realized by small entities.

RSPA estimates that 8,400 for-hire intrastate carriers that are

small business entities will be affected by this rule. This is based on

the best available data indicating there are approximately 420,000

trucks used in intrastate (208,000) or local (212,000) transportation

services, and that nationwide statistics on truck use indicate

approximately 2% of all trucks engaged in for-hire transportation carry

hazardous materials. RSPA conservatively estimates that each of the

8,400 affected trucks is owned by a separate entity and that each

operator is a small business.

In addition to entities engaged in purely intrastate for-hire

transportation of hazardous material, this rule applies to motor

vehicle operators engaged in agriculture, mining, construction,

manufacturing, wholesale trade, retail trade, utilities, and a broad

assortment of service industries, including lawn maintenance, plumbing,

painting and welding. The Associated Builders and Contractors and the

National Association of Plumbing-Heating-Cooling Contractors cite

Bureau of Labor Statistics data in Employment and Wages Annual Averages

1992 that estimate there are 629,779 construction establishments, and

that 533,455 of these entities employ less than 10 persons. Data from

the Small Business Administration indicate there are 73,000 plumbing

companies, 24,000 welding companies, 26,000 lawn care service

companies, and 31,000 painting companies. For these industries, there

is no data readily available that distinguishes entities engaged in

purely intrastate operations. RSPA conservatively estimates 90% of the

total number do not operate outside their home state.

The minimal adverse economic impact on small entities is attributed

to the fact that, because every State has already adopted hazardous

materials transportation safety regulations, virtually every intrastate

shipper or carrier of hazardous materials is already subject to

regulations that are the same as or similar to those in the Federal

Hazardous Materials Regulations (HMR). Twenty States have adopted the

HMR in their entirety, and the vast majority of remaining States have

adopted transportation safety regulations similar to the HMR. Many

exceptions provided by the latter group of States are being

incorporated in this final rule, especially with respect to

agricultural operations (Sec. 173.5), materials of trade exceptions

(Sec. 173.6), and exceptions for non-specification packagings used in

intrastate transportation (Sec. 173.8).

The scope of the materials-of-trade exception is not restricted to

purely intrastate motor carriers. Thus, RSPA is providing significant

regulatory relief to small (and many large) entities that currently

transport hazardous materials by motor vehicle in interstate commerce.

These small entities now may carry certain hazardous materials in

alternative packagings that provide equal or greater strength and

integrity to DOT specification packagings, and the paperwork burden

associated with preparation and retention of hazardous materials

shipping papers is completely removed, as is the requirement for

reporting incidents involving the unintentional release of a hazardous

material that meets the criteria for a material-of trade. In effect,

RSPA believes there could be an aggregate net benefit to small entities

whose transportation of hazardous materials is limited to materials of

trade.

Based upon readily available information concerning the size and

nature of entities likely affected by this final rule, I certify this

rule will not have a significant economic impact on a substantial

number of small entities under criteria of the Regulatory Flexibility

Act.

[[Page 1215]]

D. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, no person is required to

respond to a collection of information unless it displays a valid OMB

control number. Information collection requirements in 49 CFR parts 172

and 177 pertaining to shipping papers are currently approved under OMB

control number 2137-0039. Information collection requirements contained

in 49 CFR part 171 pertaining to incident reporting are currently

approved under OMB control number 2137-0039. Information collection

requirements pertaining to cargo tank specification requirements,

including testing, in 49 CFR part 180 are approved under OMB control

number 2137-0014. Requirements pertaining to marking of bulk containers

in 49 CFR part 172 are approved under OMB control number 2137-0575.

RSPA believes that any increase in burden as a result of this final

rule has been offset by exceptions provided in this and other recent

final rules. For example: increases in the burden for the preparation

of shipping papers for intrastate transportation of hazardous materials

will be offset by the exceptions from shipping paper requirements

provided for materials of trade; and increased burdens resulting from

intrastate motor carriers being required to submit incident reports

have been offset by the elimination of the incident reporting

requirements for limited quantities (see HM-222B; 61 FR 27166). RSPA

will submit revised information collection burden estimates as a result

of this final rule to OMB for approval prior to the compliance dates in

this rulemaking.

E. Regulations Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, 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 amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

2. Section 171.1 is revised to read as follows:

Sec. 171.1 Purpose and scope.

(a) This subchapter prescribes requirements of the Department of

Transportation governing--

(1) The 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) The 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 of

hazardous materials.

(4) The use of terms and symbols prescribed in this subchapter for

the marking, labeling, placarding and description of hazardous

materials and packagings used in their transport.

(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, the following definitions are added in

alphabetical order:

Sec. 171.8 Definitions and abbreviations.

* * * * *

Agricultural product means a hazardous material, other than a

hazardous waste, whose end use directly supports the production of an

agricultural commodity including, but not limited to a fertilizer,

pesticide, soil amendment or fuel. An agricultural product is limited

to a material in Class 3, 8 or 9, Division 2.1, 2.2, 5.1, or 6.1, or an

ORM-D material.

* * * * *

Farmer means a person engaged in the production or raising of

crops, poultry, or livestock.

* * * * *

Material of trade means a hazardous material, other than a

hazardous waste, 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 a

motor vehicle (including its auxiliary equipment); or

(3) By a private motor carrier (including vehicles operated by a

rail 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 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

5. Section 173.5 is revised to read as follows:

Sec. 173.5 Agricultural operations.

(a) The transportation of an agricultural product other than a

Class 2 material, over local roads between fields of the same farm, is

excepted from the requirements of this subchapter when:

(1) It is transported by a farmer who is an intrastate private

motor carrier; and

(2) The movement of the agricultural product conforms to

requirements of the

[[Page 1216]]

State in which it is transported and is specifically authorized by a

State statute or regulation in effect before July 1, 1998.

(b) The transportation of an agricultural product to or from a

farm, within 150 miles of the farm, is excepted from the requirements

in subparts G and H of part 172 of this subchapter when:

(1) It is transported by a farmer who is an intrastate private

motor carrier;

(2) The total amount of agricultural product being transported on a

single vehicle does not exceed:

(i) 7,300 kg (16,094 lbs.) of ammonium nitrate fertilizer properly

classed as Division 5.1, PG III, in a bulk packaging, or

(ii) 1900 L (502 gallons) for liquids or gases, or 2,300 kg (5,070

lbs.) for solids, of any other agricultural product;

(3) The packaging conforms to requirements of the State in which it

is transported and is specifically authorized for transportation of the

agricultural product by a State statute or regulation in effect on or

before July 1, 1998; and

(4) Each person having any responsibility for transporting the

agricultural product or preparing the agricultural product for shipment

has been instructed in the applicable requirements of this subchapter.

(c) Formulated liquid agricultural products in specification

packagings of 220 L (58 gallons) capacity, or less, with closures

manifolded to a closed mixing system and equipped with positive dry

disconnect devices may be transported by a private motor carrier

between a final distribution point and an ultimate point of application

or for loading aboard an airplane for aerial application.

(d) See Sec. 173.315(m) pertaining to nurse tanks of anhydrous

ammonia.

(e) See Sec. 173.6 pertaining to materials of trade.

6. A new Sec. 173.6 is added to read as follows:

Sec. 173.6 Materials of trade exceptions.

When transported by motor vehicle in conformance with this section,

a material of trade (see Sec. 171.8 of this subchapter) is not subject

to any other requirements of this subchapter besides those set forth or

referenced in this section.

(a) Materials and amounts. A material of trade is limited to the

following:

(1) A Class 3, 8, 9, Division 4.1, 5.1, 6.1, or ORM-D material

contained in a packaging having a gross mass or capacity not over--

(i) 0.5 kg (1 pound) or 0.5 L (1 pint) for a Packing Group I

material;

(ii) 30 kg (66 pounds) or 30 L (8 gallons) for a Packing Group II,

Packing Group III, or ORM-D material;

(iii) 1500 L (400 gallons) for a diluted mixture, not to exceed 2

percent concentration, of a Class 9 material;

(2) A Division 2.1 or 2.2 material in a cylinder with a gross

weight not over 100 kg (220 pounds); or

(3) A Division 4.3 material in Packing Group II or III contained in

a packaging having a gross capacity not exceeding 30 ml (1 ounce).

(4) This section does not apply to a hazardous material that is

self-reactive (see Sec. 173.124), poisonous by inhalation (see

Sec. 173.133), or a hazardous waste.

(b) Packaging. (1) Packagings must be leak tight for liquids and

gases, sift proof for solids, and be 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 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. Manifolding of cylinders is authorized provided all

valves are tightly closed.

(c) Hazard communication. (1) A non-bulk packaging other than a

cylinder (including a receptacle transported without an outer

packaging) must be marked with a common name or proper shipping name to

identify the material it contains, including the letters ``RQ'' if it

contains a reportable quantity of a hazardous substance.

(2) A bulk packaging containing a diluted mixture of a Class 9

material must be marked on two opposing sides with the four-digit

identification number of the material. The identification number must

be displayed on orange panels or, alternatively, a white square-on-

point configuration having the same outside dimensions as a placard (at

least 273 mm (10.8 inches) on a side), in the manner specified in

Sec. 172.332 (b) and(c) of this subchapter. Each digit in the

identification number marking must be at least 25 mm (one inch) high

and 6 mm (0.24 inch) wide.

(3) A DOT specification cylinder (except DOT specification 39) must

be marked and labeled as prescribed in this subchapter. Each DOT-39

cylinder must display the markings specified in Sec. 178.65-14.

(4) The operator of a motor vehicle that contains a material of

trade must be informed of the presence of the hazardous material

(including whether the package contains a reportable quantity) and must

be informed of the requirements of this section.

(d) Aggregate gross weight. Except for permanently mounted tanks

authorized by paragraph (a)(1)(iii) of this section, the aggregate

gross weight of all materials of trade on a motor vehicle may not

exceed 200 kg (440 pounds). A material of trade may be transported on a

motor vehicle under the provisions of this section with other hazardous

materials without affecting its eligibility for exceptions provided by

this section.

7. A new Sec. 173.8 is added to read as follows:

Sec. 173.8 Exceptions for non-specification packagings used in

intrastate transportation.

(a) Non-specification bulk packagings. Notwithstanding requirements

for specification packagings in subpart F of this part and parts 178

and 180 of this subchapter, a non-specification bulk packaging may be

used for transportation of a hazardous material by an intrastate motor

carrier until July 1, 2000, in accordance with the provisions of

paragraph (d) of this section.

(b) Non-specification cargo tanks for petroleum products.

Notwithstanding requirements for specification packagings in subpart F

of this part and parts 178 and 180 of this subchapter, a non-

specification cargo tank motor vehicle having a capacity of less than

13,250 liters (3,500 gallons) may be used by an intrastate motor

carrier for transportation of a flammable liquid petroleum product in

accordance with the provisions of paragraph (d) of this section.

(c) Permanently secured non-bulk tanks for petroleum products.

Notwithstanding requirements for specification packagings in subpart F

of this part 173 and parts 178 and 180 of this subchapter, a non-

specification metal tank permanently secured to a transport vehicle and

protected against leakage or damage in the event of a turnover, having

a capacity of less than 450 liters (119 gallons), may be used by an

intrastate motor carrier for transportation of a flammable liquid

[[Page 1217]]

petroleum product in accordance with the provisions of paragraph (d) of

this section.

(d) Additional requirements. A packaging used under the provisions

of paragraphs (a), (b) or (c) of this section must--

(1) Be operated by an intrastate motor carrier and in use as a

packaging for hazardous material before July 1, 1998;

(2) Be operated in conformance with the requirements of the State

in which it is authorized;

(3) Be specifically authorized by a State statute or regulation in

effect before July 1, 1998, for use as a packaging for the hazardous

material being transported;

(4) Be offered for transportation and transported in conformance

with all other applicable requirements of this subchapter;

(5) Not be used to transport a flammable cryogenic liquid,

hazardous substance, hazardous waste, or marine pollutant; and

(6) On and after July 1, 2000, for a tank authorized under

paragraph (b) or (c) of this section, 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.

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

8. The authority citation for part 180 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

9. In Sec. 180.409, the introductory text of paragraph (a) is

revised, paragraph (b) is redesignated as paragraph (d), and new

paragraphs (b) and (c) are 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 only performs annual external visual inspections

and leakage tests on a cargo tank motor vehicle, owned or operated by

that person, with a capacity of less than 13,250 liters (3,500 gallons)

used exclusively for flammable liquid petroleum fuels, is not required

to meet the educational and years of experience requirements set forth

in the definition of ``Registered Inspector'' in Sec. 171.8 of this

subchapter. Although not required to meet the educational and years of

experience requirements, 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, and must register with the Department

as required by subpart F of part 107 of this chapter.

(c) A person who performs only annual external visual inspections

and leakage tests on a permanently mounted non-bulk tank, owned or

operated by that person, for petroleum products as authorized by

Sec. 173.8(c) of this subchapter, 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 non-bulk tanks 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 December 30, 1996 under authority

delegated in 49 CFR, part 1.

D.K. Sharma,

Administrator.

[FR Doc. 97-188 Filed 1-7-97; 8:45 am]

BILLING CODE 4910-60-P