49560 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Parts 171 and 173

[Docket HM–200; Amdt. Nos. 171–154 and

173–262]

RIN 2137–AB37

Hazardous Materials in Intrastate

Commerce; Delay of Compliance Date,

Technical Amendments, Corrections

and Response to Petitions for

Reconsideration

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Final rule, delay of compliance

date, technical amendments, correction

and response to petitions for

reconsideration.

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 intrastate transportation

of hazardous materials. The intended

effect of the January 8, 1997 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. In this final rule, RSPA

is providing one additional year, until

October 1, 1998, for compliance,

responding to petitions for

reconsideration and correcting errors in

the January 8, 1997 final rule. The

minor editorial changes 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 October 1, 1997. The effective

date for the final rule published under

Docket HM–200 on January 8, 1997 (62

FR 1208) remains October 1, 1997.

Compliance dates: Voluntary

compliance with the January 8, 1997

final rule has been authorized beginning

April 8, 1997. Voluntary compliance

with this final rule is authorized as of

September 22, 1997.

Mandatory compliance with the HMR

by intrastate motor carriers of hazardous

materials is required beginning October

1, 1998, except that intrastate motor

carriers of hazardous waste, hazardous

substances, marine pollutants, and

flammable cryogenic liquids in portable

tanks and cargo tanks are already

subject to the HMR.

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

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 intrastate transportation

of hazardous materials in commerce. In

the final rule, RSPA created or amended

exceptions for agricultural operations

(§ 173.5), materials of trade (§ 173.6),

non-specification packagings used in

intrastate transportation (§ 173.8) and

minimum qualifications for registered

inspectors (§ 180.409).

Since publication of the final rule,

RSPA has discovered minor errors in

§ 173.6 (materials of trade) that are being

corrected in this document. In response

to a petition for reconsideration, RSPA

is also amending § 173.6 to include

provisions that materials of trade may

include Division 2.2 materials in

permanently installed cylinders or tanks

built to the American Society of

Mechanical Engineers (ASME)

standards. RSPA is denying another part

of this petition for reconsideration and

two other petitions for reconsideration

of the final rule.

To offset burdens that may fall on

intrastate motor carriers and their

shippers who were not previously

subject to requirements comparable to

those in the HMR because of State

exceptions, RSPA is providing an

additional year for compliance. RSPA is

adding to § 171.1 the wording ‘‘except

that until October 1, 1998, this

subchapter applies to intrastate carriers

by motor vehicle only in so far as this

subchapter relates to hazardous waste,

hazardous substances, flammable

cryogenic liquids in portable tanks and

cargo tanks, and marine pollutants.’’

This will ensure that the final rule will

be printed in the 1997 edition of the

Code of Federal Regulations while still

providing additional time for

compliance. It is important for people

who choose to voluntarily comply to

have up-to-date information on these

requirements. However, RSPA

concludes that an additional year is

appropriate for these persons to learn

and come into compliance with the

requirements in the HMR.

In addition, the July 1, 1998 date set

forth in §§ 173.5(a)(2) and 173.8(d)(3) as

the deadline for States to enact

legislation that authorizes exceptions for

agricultural operations and nonspecification cargo tanks is being

changed to October 1, 1998, for

consistency with the mandatory

compliance date of the final rule. This

will eliminate the 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.

II. Materials of Trade (§ 173.6)

RSPA is making several changes to

§ 173.6, as follows:

As provided by § 173.6, only certain

hazardous materials are authorized the

materials of trade exception. Although

proposed in the March 20, 1996

supplemental notice of proposed

rulemaking (SNPRM) [61 FR 11484], the

final rule inadvertently omitted Division

5.2 (organic peroxide) materials from

the list. Therefore, Division 5.2

materials are added to the list in

§ 173.6(a)(1) and are authorized under

the materials of trade exception.

A reference to regulations of the

Occupational Safety and Health

Administration (OSHA) applicable to

construction activities (29 CFR

1926.152) was inadvertently omitted in

the requirements for packaging gasoline

(§ 173.6(b)(4)). These OSHA

requirements address storage and use of

gasoline at construction sites and

authorize up to one-gallon capacity

plastic containers for gasoline. RSPA

believes that the material of trade

exception should also authorize these

small plastic safety cans for the

transportation of gasoline to avoid the

transfer of gasoline from one container

to another. Therefore § 173.6(b)(4) is

revised to reference the OSHA standard

in 29 CFR 1926.152(a)(1). Additionally

the reference to 29 CFR 1910.106 is

expanded to identify the specific

paragraph that references the OSHA

safety can standard.

The aggregate gross weight of all

materials of trade on board a vehicle is

limited by § 173.6(d). This paragraph

erroneously refers to ‘‘permanently

mounted tanks’’ authorized by

paragraph (a)(1)(iii) of this section.

Therefore, § 173.6(d)is revised to refer to

‘‘materials of trade authorized under

paragraph (a)(1)(iii).’’

The last sentence in § 173.6(d) is

placed in new paragraph (e) for clarity.

New paragraph (e) clarifies that

materials of trade may be transported on

a motor vehicle with other hazardous

materials and still be authorized

exceptions.

Phillips Petroleum Company

(Phillips) petitioned that the materials

of trade exception be expanded to

authorize transportation of Division 2.2

(non-flammable gas) materials in nonspecification permanently mounted

cylinders. Phillips stated that these

cylinders for compressed air are
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations 49561

constructed to the American Society of

Mechanical Engineers (ASME) Pressure

Vessel Code and are typically less than

70 gallons water capacity. Phillips

further stated that since the air cylinders

do not meet DOT specifications, they

must be depressurized before they can

be transported and then must be

repressurized at the next job site before

use.

RSPA agrees that the materials of

trade exception may properly be

expanded to include permanently

installed tanks built to the ASME

Pressure Vessel Code containing nonliquefied non-flammable compressed

gases with no subsidiary hazard. This

provision has been adopted into

§ 173.6(a)(1)(iv).

Phillips also petitioned RSPA to

authorize the transportation, as

materials of trade, of DOT exemption

cylinders containing compressed or

flammable gas samples. Several

exemptions are in existence authorizing

such transportation, and Phillips stated

that these cylinders have been used for

many years and have a proven track

record of safety and reliability.

As provided in the final rule,

§ 173.6(b)(5) authorizes transportation of

a cylinder or other pressure vessel

containing a Division 2.1 or 2.2

material, conforming to the packaging,

qualification, maintenance, and use

requirements of this subchapter, as a

material of trade. A cylinder

manufactured under the terms of an

exemption is an authorized packaging

under the provisions of the subchapter.

Therefore, no regulatory change is

necessary to authorize such

transportation and, accordingly, this

part of Phillips’s petition is denied.

III. Non-Specification Packagings Used

in Intrastate Transportation (§ 173.8);

Minimum Qualifications for Inspectors

and Testers (§ 180.409)

National Tank Truck Carriers, Inc.

(NTTC) petitioned RSPA to reconsider

its authorization for continued use of

non-specification cargo tanks by

intrastate carriers transporting

flammable liquid petroleum products.

NTTC stated that the exceptions

provided in the final rule for the

continued use of these non-specification

cargo tanks create a patchwork

regulatory system that cannot be

enforced and do not provide an

‘‘equivalent’’ level of safety. They also

provided scenarios that, in NTTC’s

opinion, could create difficulties for

enforcement and carrier personnel to

determine compliance with the

inspection and testing requirements of

Part 180.

Two rebuttal letters were received in

response to NTTC’s petition for

reconsideration. The Petroleum

Marketers Association of America stated

that States have traditionally been

responsible for public safety and

allowing the States to continue to

exercise their rational judgement in

packaging of certain hazardous

materials in intrastate commerce does

not endanger public safety. The

Petroleum Transportation & Storage

Association also opposed NTTC’s

petition and stated that NTTC

completely misstates the effect HM–200

will have on the regulated community

and public safety in general.

RSPA denies NTTC’s petition. The

situation described by NTTC regarding

the unfair advantage given to intrastate

motor carriers by allowing them to use

non-specification cargo tanks is not new

to the regulated industry. In fact, HM–

200 will eventually lead to the

elimination of non-specification cargo

tanks and their replacement with DOT

specification cargo tanks in the same

manner the older MC 300 series cargo

tanks are being removed from service,

some of which are more than 25 years

old.

The continuing use provision

recognizes that a State may assume the

responsibility on behalf of its citizens to

allow the use of non-specification cargo

tanks to transport liquid fuels in that

State under specified conditions. In an

effort to minimize the impact of a total

replacement of the intrastate cargo tank

fleet for small businesses in these States,

RSPA decided to provide for the

continued use of these non-specification

cargo tanks. This provision applies only

in those States that have or will provide

a specific provision for their use by

State law or regulation. No new nonspecification cargo tanks used to

transport flammable liquid petroleum

products may be placed in service after

October 1, 1998. In addition to any

operational requirements placed on

their use by the States in which they are

operated, they are only authorized for

continued operation in conformance

with the inspection and test

requirements of Part 180 after July 1,

2000. RSPA believes that the inspection

and test requirements will provide an

incremental safety increase in the

operation of these cargo tanks.

RSPA denies NTTC’s petition

opposing the exception provided for

registered inspectors. Educational

requirements are waived for a person

who only performs annual external

visual inspections and leakage tests on

cargo tank motor vehicles owned or

operated by that person. These cargo

tank motor vehicles must have a

capacity of less than 3500 gallons and

be used exclusively for transportation of

flammable liquid petroleum fuels. The

inspectors must register with DOT

advising that they are performing

inspections, thereby providing the

Federal Highway Administration

(FHWA) the identity and location of

such inspection and testing facilities in

order that they be included in FHWA’s

compliance program.

IV. Agricultural Operations (§ 173.5)

A petition bearing the names of 45

agricultural retailers and associations

requested that RSPA revise § 173.5 ‘‘to

incorporate language that will provide

an exception from the HMR for both

farmers and retailers who transport

agricultural products from retail-tofarm, between fields, and from the farm

back to the local source of supply.’’

These parties stated that RSPA had

failed to provide adequate relief from

the HMR’s requirements ‘‘for both

farmers and retailers.’’ (In a separate,

letter, one of these agricultural

organizations stated that: ‘‘Arizona

members stand firmly behind current

safety regulations and have no reason to

adopt exceptions in our state, however,

we encourage our state counterparts to

have the opportunity to respond to their

local needs.’’)

The petition asserted that farmers and

retailers should not be forced to comply

with the HMR for the ‘‘few brief periods

during the year’’ that agricultural

shipments take place: a 45-day period

for planting crops and other periods in

the fall when fertilizer is applied.

Included with the petition was an

estimate that it will cost each retail

facility, assumed to handle 100 loads of

agricultural products a day during the

45-day planting season, a total of

$12,300 per year to determine whether

the HMR apply (i.e., whether the

agricultural product is a hazardous

material) and, for those that are covered,

comply with the HMR’s shipping paper

and placarding requirements. According

to these parties, HM–200 does not

achieve the goal of uniformity because

movements of agricultural products

from retail-to-farm will be subject to the

HMR, but movements of the same

products between fields of the same

farm are excepted.

On this basis, these petitioners appear

to seek a broad exception from the HMR

for any retailer or farmer that transports

agricultural products ‘‘from retail-tofield, between fields, and from the farm

back to the local source of supply,’’ that

would be applicable throughout the

United States, and not just in those few

States that allow exceptions for

movements of agricultural products.
49562 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations

The literal wording of the exception

requested in this petition would apply

to all hazardous materials transported

by any retailer that made a single

delivery of a hazardous material to a

farmer. Under this interpretation, a

company that delivers gasoline to a

farm, for use in farm machinery, could

claim that all its deliveries fit under the

requested exception, even though other

deliveries would be to businesses

having no direct connection with

agriculture.

In response to this petition, opposing

comments were submitted jointly by the

American Trucking Association, the

Association of Waste Hazardous

Materials Transporters, and NTTC.

These organizations questioned whether

agricultural retailers could or should be

distinguished from other shippers and

carriers of hazardous materials, stating

that they did not believe agricultural

retailers deserved ‘‘special treatment.’’

These organizations also referred to:

—The availability of educational

materials to foster understanding of

the HMR and compliance, furnished

by RSPA and other industry

organizations.

—The many crop protection products

which are EPA-designated ‘‘hazardous

substances’’ and, accordingly, have

been subject to the HMR in intrastate

shipments since 1980, so that many

agricultural retailers should already

be complying with the HMR in

shipping or transporting these

hazardous substances.

—The inclusion among the petitioners

of retailers and organizations in many

States that have already adopted the

HMR as State law and have not

provided broad exceptions for

agricultural operations, implying that

these petitioners seek to ‘‘rollback’’

existing regulations.

—Questions about whether the

petitioners estimates of the costs of

compliance are valid and actually: (1)

apply in those States where the

transportation of agricultural products

is already subject to the HMR; (2)

consider existing inventory and

delivery systems; and (3) account for

the information provided to the

retailer when it receives a shipment of

hazardous materials from its supplier.

—The absence of any condition or

qualification (distance, type of road,

public access, etc.) that might limit

public exposure to risks involved in

the transportation of hazardous

agricultural products.

Both the petition for reconsideration

and the responding comments are set

forth in full at the end of this section

(IV).

RSPA denies the petition for

reconsideration because it believes that

the broad exception requested would

eliminate or preclude application of

many of the basic requirements that are

designed to promote a safe

transportation system. Shipping papers,

labels, placards, and identification

number displays are the basic elements

of a hazard communication system that

is recognized throughout the United

States and the world. The hazard

communication system provides basic

information to emergency responders so

that they can better respond to

hazardous materials incidents and

protect themselves, the public, and the

environment. The chemical and

physical hazards presented by

hazardous materials are the same

whether being transported in interstate

or intrastate commerce by an

agricultural supplier. Hazardous

materials, such as gasoline, which is an

extremely flammable liquid, and

anhydrous ammonia, which is

poisonous when inhaled, are frequently

transported in both interstate and

intrastate commerce by agricultural

retailers. Hazardous materials releases

can occur regardless of whether a motor

carrier is a common carrier or a private

carrier, such as an agricultural retailer.

During a recent hearing, a Senator

reminded RSPA of an incident in which

six people were killed and 76

hospitalized as a result of a release of

agricultural grade anhydrous ammonia

from cargo tank in Houston, Texas.

Lack of adequate hazard information

at the site of an incident can result in

inappropriate responses. In some cases,

an emergency responder may not realize

a hazardous material is involved and

not take appropriate action. In other

cases, unnecessary actions could be

taken that result in significant

disruptions to transportation corridors

and unnecessary evacuations until

sufficient information is obtained about

the commodity being transported. RSPA

believes that the safe transportation of

hazardous materials cannot be achieved

without a hazard communication

system that provides the minimum

information necessary to the carrier,

enforcement personnel, and emergency

responders when hazardous materials

are involved in transportation incidents.

In adopting § 173.5, RSPA provided

significant relief to farmers who

transport hazardous materials. Taking

into account the limited potential for

high-exposure incidents, RSPA

completely excepted from coverage of

the HMR a farmer’s transportation of an

agricultural product (other than a Class

2 gas) over local roads between fields of

the same farm, so long as the movement

conforms to State requirements. RSPA

also excepted a farmer from certain

compliance requirements in the HMR

involving training and emergency

response (Part 172, Subparts G and H),

when the farmer transports certain

quantities of agricultural products to or

from his or her farm, over distances up

to 150 miles from the farm, if in

conformance with State requirements.

In the latter situation, RSPA did not

provide exceptions from the HMR’s

other requirements, such as those for

packaging, shipping papers, and

placarding. Beyond a farmer’s short

trips between fields of a single farm over

local roads, RSPA does not believe there

is justification for waiving these

fundamental requirements. Certain

quantities of agricultural products that

are hazardous materials remain eligible

for the ‘‘materials of trade’’ exception in

§ 173.6, and non-specification

packagings used by an intrastate carrier

of agricultural products may also be

authorized under the exception from the

HMR’s requirements in § 173.8.

Packaging requirements ensure that

hazardous materials can survive normal

transportation conditions, by assuring

that the packaging material is

compatible with its contents and that

the container has been designed,

constructed and closed in such a

manner to prevent failure and an

unintentional release of the hazardous

material. Shipping papers, placards, and

other forms of hazard communication

are essential to provide emergency

responders with the minimum

information necessary to protect

themselves, the public, and the

environment, when an incident occurs

during the transportation of hazardous

materials. In the SNPRM, RSPA

expressed its concern over ‘‘the

potential for the lack of uniform

communication and miscommunication

to emergency responders in any location

where they may encounter hazardous

materials incidents.’’ Under the

exception requested by the petitioners,

vehicles transporting agricultural

products that are hazardous materials

would not be required to bear placards;

an emergency responder would have to

assume that any unplacarded vehicle

contained hazardous materials if it had

an in-State license plate, no matter

where the vehicle was found within the

State.

The petitioners represent many types

of commercial businesses, of varying

sizes, that routinely offer and transport

hazardous materials. Many of them are

already subject to the HMR. Five

companies listed in the petition that are

interstate carriers have combined gross

sales of more than $11 billion per year
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations 49563

and combined annual profits of more

than $1 billion per year. All of the

hazardous materials carried by any

interstate carrier (not just those

shipments between States) are already

covered by the HMR. Other petitioners

may operate within one of the many

States that have adopted the HMR

without exceptions for agricultural

products, and the HMR requirements

already apply to them. Still others

transport agricultural products that are

hazardous substances, such as

anhydrous ammonia and many

pesticides. That transportation has been

subject to the HMR for 17 years, even

within those States that have

agricultural exceptions.

For these types of businesses, HM–

200 does not impose new regulations, as

the petition suggests. RSPA believes that

Congress’ intent, in mandating the

extension of the HMR to all intrastate

motor carriers, was to bring the

remainder up to the same standard of

safety, and not to eliminate the existing

application of the HMR where it already

exists. The latter would be the effect of

the exception sought in the petition.

The petitioners’ cost estimates appear

overstated, if only for the fact that many

retailers are already subject to the HMR,

so that any marginal costs in evaluating

shipments, adding necessary

information to bills of lading (or other

documentation that already exists), and

applying placards would be minimal. It

does not seem reasonable that retailers’

employees would need an additional

ten minutes, 100 times a day,

throughout a 45-day period, to

determine if the agricultural product

being shipped is a hazardous material.

As the opposing comment noted, all

necessary information concerning an

agricultural product, including whether

it is hazardous, is already provided on

documents that accompany the product,

including shipping papers and material

safety data sheets, when an agricultural

retailer receives it from its supplier. In

addition, packaged hazardous materials

are marked with the shipping name and

identification number of the hazardous

materials and most display a hazard

warning label. According to the

requirements of the Occupational Safety

and Health Administration, markings

and labeling required by the HMR must

remain on packages of hazardous

materials until they have been emptied.

Therefore, packages of hazardous

materials in an agricultural retailer’s

storage area should already display the

markings and labels required by the

HMR.

A retailer should not have to apply

new placards for each load of

agricultural products subject to the

HMR, as petitioners’ cost estimates

assume. Placards can easily be reused or

permanently mounted on vehicles. The

estimated cost of $1,575 per year for

placards, for 25 loads per day, amounts

to several times the cost of using

permanently-mounted changeable metal

placard sets on 25 separate vehicles (if

that many separate vehicles were

needed for the 25 loads per day

assumed to require placarding), at

approximately $120 per vehicle (4 sets

per vehicle), when the cost of metal

placards is amortized over their

expected ten-year life.

In the normal course of their business

activities, retailers routinely prepare

documents in connection with sales and

deliveries of their agricultural products,

such as invoices, bills of lading, and

delivery receipts, many of which are

generated by computer. Even in those

situations where a permanent

‘‘laminated’’ shipping paper may not be

feasible, any of these existing

documents can be used as the shipping

paper required by the HMR. Once

standard forms or computer programs

are prepared, there should be little or no

additional cost to include any

additional information required by the

HMR on these documents.

Even using the petitioners’ estimates,

which RSPA finds to be excessive, given

the discussion above, the total annual

projected cost of $12,300 for a retailer

that handles 100 loads per day, over a

45-day period, works out to less than

$2.75 per load. This appears to be a

small fraction of the sales price of a load

of agricultural products that may consist

of thousands of pounds of fertilizer or

pesticides. These minimal additional

costs are outweighed by the benefits of

applying the safety requirements of the

HMR to those commercial motor vehicle

operations.

All hazardous materials, including

agricultural products, pose the same

flammable, toxic, or explosive risks

regardless of who is transporting them.

Petitioners have not demonstrated that

the factors underlying the exceptions in

§ 173.5 should apply to retailers, nor

that the broad additional exceptions

requested would be justified.

The petition for reconsideration of the

agricultural exception in § 173.5 and the

responding comment are set forth

below:

February 7, 1997.

Mr. Alan I. Roberts,

Administrator, Research & Special Programs

Administration, U.S. Department of

Transportation 400 Seventh Street, S.W.,

Washington, D.C. 20590

Re: Petition for Reconsideration of Docket

HM–200

Dear Mr. Roberts: As per 49 CFR 106.35,

please accept this petition for reconsideration

of HM–200 (62 Federal Register 1208), which

in its present form will have a serious

economic and operational impact on the

agricultural industry in the United States.

Statement of Complaint

In the preamble of the HM–200 rule, RSPA

acknowledges that it received ‘‘more than

500 comments from farmers and agricultural

supply businesses who expressed concern

that this rule would prohibit states from

granting exceptions for farmers.’’ In the final

rule, RSPA provided an exception from the

HMR for farmers who transport agricultural

products between fields of the same farm. We

appreciate this action by RSPA, as it will

provide some relief for farmers. However, we

know that many of the 500 comments to

RSPA also expressed concern about the

impact of the rule on ag retailers as well.

RSPA failed to acknowledge the concerns of

the retail segment of the industry, whose

operations have a direct impact on the

farmer, and whose transport of materials is

often identical to that of the farmer.

We are also aware that RSPA was directed

in a conference report accompanying the FY

1997 DOT appropriations bill ‘‘to give serious

consideration to establishing an agriculture

exception consistent with similar exemptions

already granted by the department.’’

Finally, Dr. D.K. Sharma received a ‘‘Dear

Colleague’’ letter signed by 48 Congressmen

and Senators that urged RSPA to ‘‘carefully

consider the concerns of the (ag) industry’’

when formulating this rulemaking.

Despite all the directives to do so, after

evaluating the language in the final HM–200

rule we are deeply disappointed that RSPA

has failed to provide adequate relief from the

HMR for both farmers and retailers. The

minimal exceptions granted in Section 173.5

will do little to facilitate the efficient and

historically safe movements of ag inputs from

retail to farm, and will take a devastating

economic toll on the agricultural industry.

Final Rule Unreasonable, Impractical

HM–200 effectively negates state

exceptions for ag retailers and farmers from

the HMR. In most cases, these exceptions

have existed for decades. Because many

farmers and ag businesses have never had to

comply with the HMR, they are unaware of

the implications of applying these federal

rules to movements of agricultural products

from retail-to-farm.

This rule is unreasonable and impractical

from several standpoints.

1. The rule is effective October 1.

Beginning next fall and extending into the

spring, it will cause tremendous confusion

for farmers, ag businesses and state officials

who must now deal with a federal law that

dictates the application of complicated

hazardous materials regulations on local,

rural shipments of agricultural inputs. On

average, the bulk of agricultural product

shipments occur during a 45-day period

when planting commences, and periodically

in the fall when some fertilizer is applied.

Farmers and ag businesses do not transport

agrichemicals every day of the year. Forcing

them to comply with this complex regulation
49564 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations

for a few brief periods during the year is not

justified and will only result in confusion

and misunderstanding as each planting

season rolls around—and we don’t see it

getting any easier as time goes on.

2. Although farmers received some relief

from the HMR for between-field movements

of DOT regulated agrichemicals, agricultural

retailers were dealt a massive blow when

RSPA completely ignored their similar need

for relief when delivering these same

products to the farm, or when the farmer

himself picks up these products at the retail

site and takes them to the farm.

Based on valid industry estimates, it will

cost a typical agricultural retail facility

$12,300 annually to comply with the

mandates of HM–200. (See Attachment A for

analysis of costs.) In the midwest alone, the

number of ag retail facilities affected exceed

5,000 in number. At $12,300 per facility,

that’s a cost of $61,500,000 per year to

comply with HM–200, and that’s only in the

midwest (i.e. Illinois, Indiana, Iowa,

Wisconsin, Minnesota, Ohio). These are costs

that will eventually be passed on in terms of

higher costs of products and services to the

farmer. The farmer, however, cannot pass

along these costs due to the ag marketing

structure. The added expense of complying

with HM–200 will ultimately contribute to

lower net farm income nationwide, without

any significant increase in public safety.

3. Although the goal of HM–200 is

uniformity, state officials in agricultural

states will still be required to enforce the

HMR only on certain types of agricultural

movements, even though the movement of

agricultural products—whether from retailto-farm or between fields—will remain

similar in their makeup. In essence, the same

quantities and types of agricultural products

will be on trucks leaving retail sites and on

trucks traveling between fields.

We believe that for purposes of uniformity

and enforcement, it makes more sense to

allow exceptions from the HMR for both

retail-to-farm and farm-to-farm shipments,

whether the ag products are picked up by the

farmer or delivered by the retailer. The

excellent safety record of the ag industry

merits this exception.

We believe HM–200 to be an unreasonable

burden on the agricultural industry,

impractical in terms of compliance and

enforcement, and unnecessary based on the

excellent safety record for retail-to-farm and

farm-to-farm shipments of ag products. We

stand behind our safety record and would

welcome contradictory data from RSPA that

proves that these movements of ag products

pose an unreasonable threat to public safety.

We, the undersigned, petition RSPA to

reconsider the impact that HM–200 will have

on farmers and agricultural supply

businesses. We urge RSPA to revise 49 CFR,

Section 173.5 to incorporate language that

will provide an exception from the HMR for

both farmers and retailers who transport

agricultural products from retail-to-farm,

between fields, and from the farm back to the

local source of supply.

We offer our knowledge and expertise to

you in this endeavor, and would welcome

the opportunity to sit down with RSPA and

create a workable regulation—one that

recognizes the unique needs of the

agricultural industry, streamlines

enforcement and provides a framework in

which we can continue to safely and

efficiently provide farmers with the tools

they need to feed the U.S. and the world.

Sincerely,

Agribusiness Association of Iowa

Agricultural Retailers Association

Alabama Farmers Cooperative, Inc.

Alliance of State Agri-Business Assoc.

American Farm Bureau Federation

Arizona Crop Protection Association

CF Industries, Inc.

Countrymark Coop, Inc.

Farmland Industries, Inc.

Georgia Agribusiness Council

Gold Kist, Inc.

GROWMARK, Inc.

Illinois Farm Bureau

Illinois Fertilizer & Chemical Assoc.

Indiana Farm Bureau, Inc.

Indiana Plant Food & Ag Chemical Assoc.

Iowa Farm Bureau Federation

Iowa Institute for Cooperatives

Kansas Fertilizer & Chemical Association

Kansas Grain & Feed Association

Louisiana Ag Industries Association

Michigan Agribusiness Association

Minnesota Crop Production Retailers

Mo-Ag Industries Council

Montana Agricultural Business Association

National Association of Wheat Growers

National Cotton Council

National Council of Farmer Cooperatives

Nebraska Cooperative Council

Nebraska Fertilizer & Ag-Chemical Inst., Inc.

New England Council for Plant Protection

Ohio Agribusiness Association

Ohio Farm Bureau Federation

Oklahoma Fertilizer & Chemical Association

Rocky Mountain Plant Food & Ag Chem Asc.

SF Services, Inc.

South Dakota Farm Bureau

South Dakota Fertilizer & Ag Chemical Asc.

Southern States Cooperative

Tennessee Farmers Cooperative

The Andersons

United Suppliers, Inc.

WILFARM L.L.C.

Wisconsin Agri-Service Association, Inc.

Wyoming Agri-Business Association

Attachment A

Cost to Retail Ag Facilities to Comply with

HM–200.

• Manpower: 10 additional minutes per

load to evaluate shipments of agricultural

products to determine applicability to the

HMR.

On average, during spring season each

agrichemical facility processes 100 loads per

day of agricultural products (both packaged

and in solution), which includes loads

picked up by the farmer and loads delivered

by the retailer.

100 loads per day × additional 10 minutes

= 1000 minutes ÷ 60 min/hour = 16.666

additional manhours per day spent on

compliance.

16.666 hours × $14 per hour average salary

for personnel = $233.333 per day for

additional manhours to evaluate loads for

compliance.

$233.333 per day × 45 days of peak

movement of agricultural products = $10,500

(rounded). This does not take into account

movements made during off-season.

• Placards: Assume 25% of the 100 loads

per day will require placarding. Most

inexpensive placard is .35 cents. .35 × 4 =

$1.40 per load. 25 loads per day × $1.40 =

$35 per day. $35 × 45 days of spring season

= $1575.

• Shipping Papers: It is highly unlikely

that we can use ‘‘laminated’’ shipping papers

as RSPA indicates in the preamble. Products,

package sizes and shipping descriptions for

ag products change too often to make preprinted papers feasible. However, assuming

we can generate some type of shipping paper

at .05 cents per page, the costs are as follows:

100 loads per day × .05 for shipping paper

= $5.00 × 45 days of spring season = 225.

This does not take into account unknown

cost for software and software maintenance

to keep the descriptions up to date.

Minimum Annual Cost to Comply for AG

Businesses to Comply With HM–200

$10,500 in manhours

1,575 in placards

225 in shipping papers (this cost likely to be substantially more)

$12,300 annually for each retail ag facility—with thousands of facilities

in the U.S., the economic impact may be in the hundreds of

millions of dollars.

Source: Data provided by management

personnel at retail agribusiness facilities.

March 17, 1997.

Alan I. Roberts,

Associate Administrator, Hazardous

Materials Safety, Research and Special

Programs Administration, U.S.

Department of Transportation, 400

Seventh St., SW., Washington, DC 20590

RE: HM–200

Dear Mr. Roberts: The undersigned

associations representing carriers of

hazardous materials are writing to express

concern over the filing by the Agricultural

Retailers Association (ARA), on behalf of a

number of organizations with ties to the agribusiness, of a petition for reconsideration

RSPA’s final rule in the matter of HM–200,

hazardous materials in intrastate commerce.

We realize that these comments are not

timely filed. However, we beg the indulgence

of RSPA as provided by 49 CFR 106.23 to

consider late filed comments ‘‘as far as

practicable.’’

For over a decade, carriers we represent

have been required to follow RSPA’s

hazardous materials regulations (HMRs)

when engaged in the intrastate commerce of

hazardous substances, hazardous waste,

flammable cryogenic liquids and, more

recently, marine pollutants. Our members

have benefitted by the consistent application

of hazardous materials rules to all operations

whether the transportation is intrastate,

interstate or foreign. Our review of the ARA

petition causes us to raise the following

concerns:

• For Whom Is Relief Requested?

The petitioner states that HM–200

provided relief for farmers, but did not
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations 49565

extend relief to ‘‘ag retailers.’’ In describing

why HM–200 is ‘‘unreasonable and

impractical’’, the petitioner repeatedly links

the retail segment of the industry with

farmers. However, no information is

provided to support the linkage other than

both, as an incidental part of their business,

may use the same roads for transport. We

find it hard to believe that the business

operation of a typical ag retailer described in

the petitioner’s ‘‘Attachment A’’ comports

with the typical business operation of a

farmer.

Just as we see little similarity between an

ag retailer and a farmer, it is not clear what

circumstance(s) distinguishes the retailer

from other shippers/carriers of hazardous

materials that do not ship/haul agriculturalrelated hazardous materials. We understand

that the agricultural supply industry is quite

diverse as to the size of company involved

and the scope of these company operations.

Companies engaged in agri-business range

from multi-national corporations to those

that would be considered local small

businesses. We note, however, that we would

hardly qualify as ‘‘small’’ operations which,

according to the petitioner, ship on average

from each facility 100 hazardous materials

loads a day. In any event, we have to assume

that the petitioner would not want to create

price competitive advantages for one segment

of its industry over another. Consequently,

the relief sought must be assumed to apply

to all sizes and configurations of shipper/

carriers.

Non-agricultural shippers/carriers of

hazardous materials, no matter the size of the

operation, have not been granted universal

relief from the HMRs simply by virtue of how

the consignees served by the shipper/carriers

use the commodity transported. Since the

HMRs are established to ‘‘protect[] against

the risks to life and property inherent in the

transportation of hazardous material’’ [49

U.S.C. 5101.], we fail to see how the

petitioner has justified special treatment that

will allow ag retailers to ignore these

protective measures.

• What Is the Justification for the Relief

Being Sought?

The petitioner claims that HM–200 is

‘‘unreasonable and impractical’’ for a number

of reasons, and that the only appropriate

response to these concerns is to ‘‘provide an

exception from the HMRs retailers who

transport agricultural products from retail-tofarm, between field, and from the farm back

to the local source of supply.’’ Such a zerosum proposal lacks credibility.

Based on the ag retailers’ own justification

for exception from the HMRs, we offer the

following observations:

• Complexity of Rules: the rules may be

‘‘new’’, but ‘‘complex’’ is a relative term that

deserves more analysis. For example,

compared to rules issued under statutes

administered by the U.S. Environmental

Protection Agency (EPA), the HMRs are

simple. Congress has granted DOT/RSPA

authority to require nationally uniform and

internationally harmonized rules. RSPA

provides free, or at cost, numerous services

and products to aid compliance. These

services and products include a

comprehensive advisory guidance document

published in the Federal Register to remind

persons involved in the transportation of

hazardous materials of their regulatory

responsibilities, newsletters, conferences,

training modules, and the like. Those

representing the ag retail industry could

perform a great service to their membership

by informing members of these resources.

• Hazardous Substances: Congress

mandated that DOT regulate EPA-designated

‘‘hazardous substances’’ as ‘‘hazardous

materials.’’ [42 U.S.C. 9656(a).] Hazardous

substances have been regulated by RSPA in

intrastate commerce since 1980. [49 CFR

171.1] Many crop protection products are

regulated hazardous substances. In short, ag

retailers should have been complying with

the HMRs for the transport of these materials

for the last 15 years. Any relief RSPA could

grant from the HMRs will not change the fact

that the materials are regulated by EPA.

In terms of any non-hazardous substance

materials that are shipped/carried by ag

retailers, the petitioner provides no

information about the number, kind, and

quantity of such materials now newly

regulated by HM–200. Such information

would be critical for RSPA to evaluate the

merit of the level of relief requested.

• Scope of the Exception Requested: The

HMRs apply nationally. Prior to HM–200, the

federal government provided incentives to

states to adopt the HMRs for intrastate

commerce. According to data of the Federal

Highway Administration, all but one state

had adopted the HMRs and of those that

adopted them only 8 provided exceptions

specific to farmers and/or the broader agribusiness community. In short, 41 states do

not provide farm-specific exceptions from the

HMRs. Yet, organizations that by their names

represent agri-business in at least 18 states

joined the ARA in support of this petition.

Some organizations joining the petition

appear to have nationwide representation. Is

RSPA to infer that the petitioner wishes to

rollback regulation that has already been

implemented in 41 states?

• Costs: As noted above, agri-business has

already been subject to the HMRs in the great

majority of states. Any costs associated with

the implementation of HM–200 should only

reflect compliance costs that may ensue in

the 9 states where some exceptions were

granted to segments of the agri-business

community. Also, some discount should be

factored in for the proportion of the 100

shipments/day that are hazardous substances

and have been subject to the HMRs even in

those states that have not adopted these

federal rules as a matter of state law.

Whatever is ultimately determined to be

the proper scope in computing the cost basis,

we question some of the cost estimates used

by the petitioner in ‘‘Attachment A.’’ The

petitioner states that ‘‘[p]roducts, package

sizes and shipping descriptions for ag

products change * * * often * * *’’

Obviously, to serve their customers, the ag

retail industry has systems in place to track

and fill orders for ag products in a rapidly

changing environment. At the same time, we

are unaware of commercial transactions

involving the exchange of freight where some

sort of shipping paper does not accompany

the load for proof of delivery and/or billing

purposes. Recognizing this fact, RSPA does

not require a unique form to communicate

the presence of hazardous materials in a load

and to communicate appropriate emergency

response information. [Shipments required

by EPA to be tracked on the Uniform

Manifest are the exception.] Additionally, we

would assume that most deliveries to local ag

retail facilities were transported in full

compliance with the HMRs and that

necessary shipping paper information could

be readily transcribed from the papers

accompanying these movements to the

shipping papers necessary for further

downstream distribution.

We specifically question the reliability of

the estimate for placarding vehicles where

the implication is given that placards are not

reusable. Reusable configurations of placards

can be purchased.

In short, we do not believe the economic

analysis is accurate.

• Risk: The requested ‘‘retail-to-farm and

from the farm back to the local source of

supply’’ exception is subject to no

qualification such as distance traveled,

condition of the roads, access of the public,

time-of-travel, or any other conditions that

might limit the exposure of public to the

excepted transportation events. We simply

note that the roads used to support what

would be movements subject to no official

safety standards are public and shared by

farmer and non-farmer alike. A public that,

by law, RSPA must protect.

Conclusion

The petitioner references two

congressionally-generated documents that

request RSPA to carefully consider the

concerns of the agriculture industry when

issuing rules under HM–200. No evidence is

provided that suggests RSPA did not fulfill

this charge. To the contrary, we believe the

attention drawn to this issue by agri-business

ensured that RSPA not propose a rule that

could not be supported on its merits. RSPA

walked a careful balance between those in

agri-business that advocated for exemption

from the HMRs and those primarily in the

emergency response community that

opposed exceptions to safety rules.

RSPA provides many services to help the

regulated community achieve compliance.

We have no doubt that RSPA would make

every effort to provide needed compliance

services to ag retailers.

We appreciate the opportunity to submit

these comments. Please contact us if

additional input is necessary on any of the

points raised above.

Sincerely,

Paul Bomgardner,

Hazardous Materials Specialist, American

Trucking Associations, Inc.

Cynthia Hilton,

Executive Director, Association of Waste

Hazardous Materials Transporters.

Cliff Harvison,

President, National Tank Truck Carriers, Inc.

This final rule delays for one year the

mandatory compliance date for all

requirements in the January 8, 1997,

final rule under Docket HM–200 that
49566 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations

otherwise would become mandatory on

October 1, 1997. Because of the relief

provided by this final rule, it is effective

October 1, 1997, without the customary

30-day delay following publication.

V. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Polices 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 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. The effect of this final rule

will delay for one year the costs and

benefits of applying the HMR to

intrastate motor carriers. There is no

delay in the materials of trade exception

and its benefits.

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 January 1, 1998.

C. Regulatory Flexibility Act

The January 8, 1997 final rule affects

many small business entities that ship

or transport hazardous materials,

however any adverse economic impact

should be minimal. Many small entities

affected by this final rule also receive

relief from current regulatory

requirements. 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. As noted

earlier, RSPA is not delaying the

materials of trade exception. This final

rule, however, delays for one year the

costs and benefits of applying the HMR

to intrastate motor carriers.

D. Paperwork Reduction Act

There are no new 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

49 CFR Part 171

Exports, Hazardous materials

transportation, Hazardous waste,

Imports, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation,

Packaging and containers, Radioactive

materials, Reporting and recordkeeping

requirements, Uranium.

In consideration of the foregoing, 49

CFR parts 171 and 173 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.

§ 171.1 [Amended]

2. In § 171.1 as revised at 62 FR 1215

effective October 1, 1997, paragraph

(a)(1) is amended by removing the last

period in the paragraph and adding at

the end of the last sentence the wording

‘‘, (except that until October 1, 1998,

this subchapter applies to intrastate

carriers by motor vehicle only in so far

as this subchapter relates to hazardous

waste, hazardous substances, flammable

cryogenic liquids in portable tanks and

cargo tanks, and marine pollutants).’’

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

AND PACKAGINGS

3. The authority citation for part 173

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 173.5 [Amended]

4. In § 173.5 as revised at 62 FR 1215

effective October 1, 1997, paragraph

(a)(2) is amended by revising the date

‘‘July 1, 1998’’ to read ‘‘October 1,

1998’’.

§ 173.6 [Amended]

5. In § 173.6 as added at 62 FR 1216

effective October 1, 1997, paragraphs

(a)(1) introductory text, (a)(2), (b)(4), and

(d) are revised; paragraph (a)(1)(iii) is

amended by removing the semicolon

and adding a period in its place; and a

new paragraph (e) is added to read as

follows:

§ 173.6 Materials of trade exceptions.

* * * * *

(a) * * *

(1) A Class 3, 8, 9, Division 4.1, 5.1,

5.2, 6.1, or ORM-D material contained in

a packaging having a gross mass or

capacity not over—

* * * * *

(2) A Division 2.1 or 2.2 material in

a cylinder with a gross weight not over

100 kg (220 pounds), or a permanently

mounted tank manufactured to ASME
Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Rules and Regulations 49567

standards of not more than 70 gallon

water capacity for a non-liquefied

Division 2.2 material with no subsidiary

hazard.

* * * * *

(b) * * *

(4) For gasoline, a packaging must be

made of metal or plastic and conform to

the requirements of this subchapter or to

the requirements of the Occupational

Safety and Health Administration of the

Department of Labor contained in 29

CFR 1910.106(d)(2) or 1926.152(a)(1).

* * * * *

(d) Aggregate gross weight. Except for

a material of trade 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).

(e) Other exceptions. 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.

§ 173.8 [Amended]

6. In § 173.8 as added at 62 FR 1216

effective October 1, 1997, paragraph

(d)(3) is amended by revising the date

‘‘July 1, 1998’’ to read ‘‘October 1,

1998’’.

Issued in Washington, DC on September

16, 1997 under authority delegated in 49

CFR, part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 97–25065 Filed 9–18–97; 8:45 am]

BILLING CODE 4910–60–P