63 FR 8140 - Hazardous Materials in Intrastate Commerce; Technical Amendments | Regulus

Passage 1[Federal Register Volume 63, Number 32 (Wednesday, February 18, 1998)] [Rules and Regulations] [Pages 8140-8142] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-3789] ======================================================================= ----------------------------------------------------------------------- Research and Special Programs Administration [Docket HM-200; Amdt. No. 173-259] RIN 2137-AB37 Hazardous Materials in Intrastate Commerce; Technical Amendments AGENCY: Research and Special Programs Administration (RSPA), DOT. ACTION: Final rule; technical amendments. ----------------------------------------------------------------------- SUMMARY: On January 8, 1997, RSPA published a final rule which amended the Hazardous Materials Regulations (HMR) to expand the scope of the regulations to all intrastate transportation of hazardous materials. The intended effect of the January 8, 1997 rule was 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. In this final rule, RSPA is: Correcting a date for States to develop legislation authorizing certain exceptions recognized in the HMR; clarifying packaging requirements for hazardous materials transported for agricultural operations; correcting size requirements for identification number markings; and clarifying that the provisions for use of non-specification cargo tanks apply to transportation of gasoline. The minor technical amendments made by this final rule will not impose any new requirements on persons subject to the HMR. DATES: Effective dates: This final rule is effective February 18, 1998. The effective date for the final rules published under Docket HM-200 on January 8, 1997 (62 FR 1208) and September 22, 1997 (62 FR 49560) remains October 1, 1997. Compliance dates: Voluntary compliance with the January 8, 1997 final rule has been authorized since April 8, 1997. Mandatory compliance with the HMR by intrastate motor carriers of hazardous materials is required beginning October 1, 1998, except that the HMR already apply to intrastate motor carriers of hazardous waste, hazardous substances, marine pollutants, and flammable cryogenic liquids in portable tanks and cargo tanks.#

Passage 2FOR FURTHER INFORMATION CONTACT: Diane LaValle, (202) 366-8553, Office of Hazardous Materials Standards, RSPA, 400 Seventh Street, SW, Washington, DC 20590-0001.#

Passage 3In 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)) On January 8, 1997, RSPA issued a final rule under Docket HM-200 (62 FR 1208). The final rule amended the HMR by expanding the scope of the regulations to all intrastate transportation of hazardous materials in commerce. In the final rule, RSPA provided exceptions for agricultural operations (Sec. 173.5), materials of trade (Sec. 173.6), non- specification packagings used in intrastate transportation (Sec. 173.8) and for registered inspectors of small cargo tanks used exclusively for flammable liquid petroleum fuels (Sec. 180.409). In a correction document published on September 22, 1997 (62 FR 49560), RSPA changed from July 1, 1998 to October 1, 1998 the deadline in Secs. 173.5(a)(2) and 173.8(d)(3) for States to enact legislation that authorizes exceptions for agricultural operations and non- specification cargo tanks, for consistency with the mandatory compliance date of the final rule. This eliminated a potential problem of requiring compliance before a State has the opportunity to enact legislation to allow carriers in that state to take advantage of the exceptions. However, the date referenced in Sec. 173.5(b)(3) was inadvertently missed when these changes were made. Therefore, this final rule revises the July 1, 1998 date referenced in Sec. 173.5(b)(3) to October 1, 1998. A possible misunderstanding has been brought to RSPA's attention by a State enforcement officer regarding the packaging authorizations adopted in Sec. 173.5(b)(3) for agricultural products transported by farmers who are intrastate private motor carriers. To clarify RSPA's intention, this final rule amends the language in Sec. 173.5(b) and (b)(3) to make it clear that agricultural products transported under the exception provided in Sec. 173.5(b) are excepted from the packaging requirements of the HMR when the movement and packaging of the agricultural product conform to the requirements of the State in which it is transported and are specifically authorized by a State statute or regulation in effect prior to October 1, 1998. In Sec. 173.6, paragraph (c)(2) references identification number marking requirements for bulk packagings. The size requirements for each digit in these markings were incorrec#

Passage 4tly specified to be at least 25 mm (one inch) high and 6 mm (0.24 inch) wide. This paragraph is revised to provide that the size of the identification number markings must be as required by Sec. 172.332(b)(1) or (c)(1), which state the identification number must be displayed in 100 mm (3.9 inches) black Helvetica Medium, Alpine Gothic or Alternate Gothic No. 3 numerals. RSPA is also clarifying that the identification number may be displayed on Class 9 placards. In Sec. 173.8, paragraph (b) authorizes non-specification cargo tanks for the transportation of flammable liquid petroleum products that are not hazardous wastes, hazardous substances or marine pollutants (when specifically authorized in State statute or regulation). RSPA overlooked the fact that leaded gasoline is a marine pollutant when transported in a bulk packaging by highway. Because RSPA intended that the provisions of this exception apply to the transportation of gasoline, RSPA is revising Sec. 173.8(d)(5) to allow for the transportation of all gasoline, including leaded gasoline which is a marine pollutant. This will eliminate any confusion regarding the type of petroleum product that is authorized for transportation in a non-specification cargo tank. A. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is not considered significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). A regulatory evaluation was prepared for the January 8, 1997 final rule and is available for review in the Docket. The regulatory evaluation was reviewed and determined not to require updating.#

Passage 5This 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. 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 October 1, 1998. The regulatory evaluation developed in support of the January 8, 1997 final rule includes a benefit-cost analysis that justifies its adoption, primarily due to the positive net benefits that may be realized by small entities under the materials of trade exception. RSPA has reviewed this regulatory evaluation and determined it was not necessary to update it. There are no information collection requirements in this final rule.#

Passage 6A 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. Hazardous materials transportation, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. In consideration of the foregoing, 49 CFR part 173 is amended as follows: PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 1. The authority citation for part 173 continues to read as follows: Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53. 2. In Sec. 173.5, the introductory text of paragraph (b) and paragraph (b)(3) are revised to read as follows: * * * * * (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 and from the specific packaging requirements of this subchapter when: * * * * * (3) The movement and packaging of the agricultural product conform to the requirements of the State in which it is transported and are specifically authorized by a State statute or regulation in effect before October 1, 1998; and * * * * * 3. In Sec. 173.6, paragraph (c)(2) is revised to read as follows: Sec. 173.6 Materials of trade exceptions. * * * * * (c) * * * (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 placards, 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 displayed in 100 mm (3.9 inches) black Helvetica Medium, Alpine Gothic or Alternate Gothic No. 3 numerals. * * * * * 4. In Sec. 173.8, paragraph (d)(1) is amended by revising the date ``July 1, 1998'' to read ``October 1, 1998''. 5. In addition, in Sec. 173.8, paragraph (d)(5) is revised to read as follows:#

Passage 7Sec. 173.8 Exceptions for non-specification packagings used in intrastate transportation. * * * * * (d) * * * (5) Not be used to transport a flammable cryogenic liquid, hazardous substance, hazardous waste, or a marine pollutant (except for gasoline); and * * * * * Issued in Washington, DC on February 9, 1998, under authority delegated in 49 CFR, part 1. Kelley S. Coyner, Acting Administrator. [FR Doc. 98-3789 Filed 2-17-98; 8:45 am] BILLING CODE 4910-60-P#