[Federal Register: January 8, 1997 (Volume 62, Number 5)]
[Rules and Regulations]
[Page 1207-1217]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 1207]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171, et al.
Hazardous Materials in Intrastate Commerce and Improvements to
Hazardous Materials Identification Systems; Final Rules
[[Page 1208]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173 and 180
[Docket HM-200; Amdt. Nos. 171-150, 173-259, and 180-11]
RIN 2137-AB37
Hazardous Materials in Intrastate Commerce
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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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
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