# Hazardous Materials in Intrastate Commerce

- **operation:** document
- **citation:** 62 FR 1208
- **title:** Hazardous Materials in Intrastate Commerce
- **source type:** rulemaking
- **agency:** Research and Special Programs Administration
- **status:** historical
- **official:** true
- **published on:** 1997-01-08
- **effective on:** Not available
- **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.
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Federal Register, Volume 62 Issue 5 (Wednesday, January 8, 1997) [Federal Register Volume 62, Number 5 (Wednesday, January 8, 1997)] [Rules and Regulations] [Pages 1208-1217] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 97-188] [[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 Federal Register / Vol. 62, No. 5 / Wednesday, January 8, 1997 / Rules and Regulations [[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. ----------------------------------------------------------------------- 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 f
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