[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]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 173

[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.

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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

[[Page 8141]]

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.

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

SUPPLEMENTARY INFORMATION:

I. Background

    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)) 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 incorrectly 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.

II. Regulatory Analyses and Notices

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.

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. 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.

[[Page 8142]]

C. Regulatory Flexibility Act

    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.

D. Paperwork Reduction Act

    There are no information collection requirements in this final 
rule.

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 in 49 CFR Part 173

    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:


Sec. 173.5  Agricultural operations.

* * * * *
    (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.
* * * * *


Sec. 173.8  [Amended]

    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:


Sec. 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