NPRM entitled "Federal Motor Carrier SAfety Regulations: Transportation of Hazardous Materials

33418

Federal Register I Vol. 58. No. 115 I Thursday, June 17, 1993 I Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Highway Admlnist&on
49 CFA Part 397

.. ...

[FHWA Docket No. MC&q
RIN 212SAC70
Fedoral Motor Carder Safety

Regulatlon8: Tmnspoftatlon of
Hazardour Matrfhlr
AGENcr: Federal Highway
Administration (FHWA), DOT.
ACTIDN: Notice of proposed rulemaking
uvm.Ml.
SUMMARY: The FHWA pro oses to

amend part 397 of the FeBera1 Motor
Carrier Safety Regulations (FMCSRs) by
adding a new Subpart B, Motor Carrier
Safety Permits. This rulem8king action
implements arts of sections 8 and 15
of the Hazar Bous Materials
Transportation Uniform Safety Act of
1990 (HMTUSA). Section 8 mquires,
among other things, the establishment of
a motor carrier saf8ty permit program, at
a minimum, for motor carriers
transporting class A and/or B explosives
(new RSPA hazard classification,
Division 1.1,l.Z. and 1.3; s8e 49 CF’R
173.2, as amended). liquefied natural
gas (new RSPA hazard classification,
Division 2.1; ~88 49 CF’R 173.2, as
amended). hazardous materials
desi ated as extremely toxic by
indtion (new RSPA havvd
classification, Division 2.3, Hazard Zone
A or Division 6.1, Packing Group I,
Hazard Zone A; se8 49 CFR 173.2, as
amended), or highway route controlled
quantity radioactive materials (new
RSPA hazd classification, Class 7; ~88
49 CFR 173.2, as amended). Section 15
of the HMTUSA requires, in part,
inspection of commercial motor
vehicles transporting highway route
controlled quantity radioactive
materials before each trip. This
requirement of section IS would be
incorporated into the proposed safety
permit regulations. This proposed rule,
if promulgated, would increase
regulatory compliance. enhance motor
carrier safety, and promote the safe
transportation of the designated
hazardous materials.
DATES: Comments must be received on
or before August 16.1993.
ADDRESSES: Submit written. signed
comments to FHWA Docket No. MC 924, room 4232, HCC-10, Office of the
Chief Counsel, Federal Highway
Administration, 400 Seventh Street SW.,
Washington, DC 20590. Commenters
may, in addition to submitting “hard
copies” of their comments, submit a

floppy disk in standard or high densl:y
formats containing files compatible i&h
word processing programs such as
WordPerfect, WordStar, or Microsoft
“Word” for IBM systems, or
WordPerfect or Microsoft Word for
Macintosh. Commenters should clearly
label the submitted disk(s) with me
software format used (e.g.. WordPerfect
5.0 IBM] or Microsoft Word 4.0 [Mac]).
All comments received will be available
for examination at tbe above address
from 8:30 a.m. to 3:30 p.m.. e.t.. Monday
through Friday, except legal holidays.
Those desiring notification of receipt of
comments must include a selfaddressed, stamp8d postcard.
FOR FURTHER MFDRMAnoN CDNTAcr Mr.
Lee Jackson, Hazardous Materials
Pm ems Division (202) 3864415, Mr.
Neir1 L. Thomas, Office of Motor Carrier
Standards; (202) 306-2981, or Mr.
Raymond W. Cuprill, Office of Chief
CounseI. (202) 366-0834, Federal
Highway Administration. 400 Seventh
Street SW., Washington, DC 20590.
Office hours are &om 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday,
except legal holidays.
SUPPUMENTARY tNFDRMAnoN:
Background
On November 18,1990, the President
signed the HMTUSA (Pub. L. 101-615.
104 Stat. 3244), which established
additional requirements in the
Hazardous Materials Transportation Act
(HMTA) (49 U.S.C. app. 1801 et seq.1 to
reduce the risks to life, property, and
the environment osed by unintentional
releases of hazarfous materials.
Congress recognized that approximately
4 billion tons of regulated hazardous
materials are transported each year and
that approximately 500,000 movements
of hazardous materials occur each day.
Congress also found that the movement
of hazardous materials is necessary to
promote economic vitality and meet
consumer demands, and should be
conducted in a safe and efficient
manner.
To this end, section 8 of the HMTUSA
amends section 106 of the HMTA (49
USC. app. 1805) to prohibit a motor
carrier &om transporting, by motor
vehicle in commerce (interstate and
intrastate), certain hazardous materials
designated by the Secretary of
Transportation, unless the motor carrier
holds a “safety permit” issued by the
Secretary and maintains a copy of th8
permit or proof of its existence in the
motor vehicle used to provide such
transportation. The section provides
that the Secretary may only grant safety
p8ITIIitS t0 carriers that fire fit, Willing,
and able to (1) provide the

Federa& *te@ster / Vol. 58, No. 115 / Thursday, June 17, 1993 / Proposed Rules
transportation to be authorized by the
permit, (2) comply with existing Federal
safety regulations and any applicable
minimum financial responsibility .laws
and regulations, and (3) comply with
any safety permit regulations and
re uirements of this title.
?he revised section 106 also requires
that the Secretary issue regulations
implementing the safety permit
requirements and establishing the types
and quantities of hazardous materials
subject to the regulations. The safety
permit regulations are to Cover, at a
minimum, the tr&mSpOrtatiOn by motor
carrier of quantities of (1) class A and/,
or B explosives (new RSPA hazard
classification, Division 1.1,l.Z. and 1.3;
see 49 CPR 173.2, as amended), (2)
liquefied natural gas (new RSPA hazard
classification, Division 2.1: se8 49 CPR
173.2, as amended), (3) hazardous
materials designated by the Secretary as
extremely toxic by inhalation (new
RSPA hazard classification, Division
2.3, Hazard Zone A. or Division 6.1,
Packing Group I, Hazard Zone A; see 49
CFR 173.2, as amended). and (41
highway mute controlled quantity
radioactive materials (new RSPA hazard
classification, Class 7: see 49 CPR 173.2.
as amended). For p 0888 of this notice
we will refer to these
“% azardaus
materials as designated high risk
hazardous materials. The regulations
must also establish procedures
applicable to permit application,
content, fees, amendment, suspension
or revocation, and standards for permit
duration, conditions or limitations. This
new permit requirement would, under
section 13 of the HMTUSA (49 U.S.C
app. 18111, preempt any State permit
requirement dealing with transportation
of the same hazardous materials if
compliance with both the State and
Federal permit requirements is not
possible, or if the State requirement
creates an obstacle to the
accomplishment of the HMTA and the
re ulations.
8 ection 8 of the HMTUSA also
amended the HMTA to require shippers
and motor carriers of certain t 8s and
quantities of hazardous materi3 s to file
a registration statement with the
Secretary of Transportation. The
registration requirements have been
implemented by the Research and
Special Programs Administration
(RSPA) in a separate IUl8making action
(57 FR 30620, July 9,1992). Motor
carriers transporting hazardous
materials covered by the registration
requirements are advised that they will
need to file a registration statement with
the RSPA and also obtain a safety
permit from the FHWA. The filing of a
registration statement with RSPA will
~- ~- -- ---r

not constitute an application for a safety
permit. A se arate permit application
must be fileB with the FHWA.
Additionally, the HMTUSA mandates
other specific motor carrier and shipper
responsibilities as follows.
Shipper Responsibility
Each erson who offers any hazardous
math Jfor which a permit is required
for motor vehicle transportation in
interstate or intrastate commerce may
offer that material to a motor carrier
on1 if the carrier has a safety permit
auJorizin such transportation. It is
anticipate% that the RSPA will
subs uently initiate rulemaking which
wilI “a8 dress shipper responsibility.
Inspection Requirements
Section 15 of the HMTUSA amends
section 116 of the HMTA (49 U.S.C.
app. 1813) to provide that the Secretary
shall requir8 by regulation that, before
each us8 of a motor vehicle to transport
in commerce (iIlt8mtat8 or intrastate)
an highway mute controll8d quantity
ra2‘oactive material, such vehicle shall
be inspected and certified to be in
compliance with the HMTA and
applicable Fed8rai motor carrier safety
laws and regulations. The amended
section 116 further pmvides that the
Secretary may require that inspections
be carried out by duly authorized
inspectors of the United States or in
accordance with appmpriate State
procedures. The secretary may also
ermit the shipper or transporter of any
& way mute controlled quantity
ra
material to inspect the
vehicle if the individuals conducting
the inspections meet the inspector
qualification requirements issued by the
secretary.
The definition of ‘highway rout8
controlkd quantity” radioactive
materials is found at 49 CPR 173.403.
??ighwaymute controlled quantity
radioactive materials are generally
quantities of materials that emit high
levels of radioactivity. The regulatory
and packaging requirements which
apply to these materials are designed
both to adequately identify the presence
of these materials and to ensure that the
packaging can withstand normal
transportation conditions and
foreseeable accidents, without a breach
of containment integrity.
In considering development of
inspection requirements for commercial
motor V8hiC18S transporting th8S8
materials and trying to d8termm8 what
type of inspection criteria is needed, the
PHWA examined the procedures
contained in current inspection
methods. This examination included a
review of (1) the North American

33419

Uniform Driver/Vehicle Inspec”on
Manual. published by the FHWA in
September 1989, (21 a draft of a
Commercial Vehicle Safety Allianc.
document entitled, “Recommended
National Procedures for the Safety
Inspection of Commercial Highway
Vehicles Transporting Spent FueY
Transuranic and High Level Radioactive
Wastes” (March 19911, (3) “A Guide for
the Inspection of Spent Nuclear Fuel
Shipments by Motor Vehicle” (RSPA,
November 19881, and (4) “A Guide for
the msp8ctiOn Of &rdioactive Material
Shipments by Motor Vehicle or at
Freight Facilities” (RSPA. November
1968). Copies of these documents have
been placed in the docket and a1-8
available for public review.
The FHWA iS PrOpOSing the use of the
general inspection requimments
contained in part 396, “Inspection,
Repair, and Maintenance,” and the more
detailed inspection standards found in
appendix G to subchapter B, “Minimum
P8riOdk Inspection Standards.” to meet
the requirement that a vehicle b8
inspected before each trip. Further. the
PHWA believes that a Level 1 North
American Uniform Driver/Vehicle
Inspection can be used to satisfy the
vehicle inspection requirement for the
transportation of highway mute
controhed uantity radioactive
materials, i4 the inspection is condul
by a qualified inspector. According!;
the FHWA proposes to apply the
inspector qualification requirements
specified in S 396.19. “Inspector
qualifications,” to ensure that any
inspector performing these vehicle
inspections is qualified. We specifically
invite comments concerning the
inspection criteria proposed herein and
Whether radiological monitoring should
be included.
FHWA Propod

Rulemaking Action

Discussion of Proposed Requirements
i. Purpose and ScOp8 The purposes of this proposed rule
are to enhance motor carrier safety and
promote the safe transportation of
designated high risk hazardous
materials in both interstate and
intrastate commerce. Subpart B of part
397 would require that Federal safety
ermits be issued to a motor carrier
itefore engaging in the transportation of
designated high risk hazardous
materi&. The conditions for obtaining
and retaining the ermit should provide
motor carriers witg additional
incentivea to safely 0 crate their
commercial motor verll‘138s.
The HMTUSA provider that tha
S8cr8tary shall designate the types a+
quantities of hazardous materials

r 120

F e d e r a l Registsr / 1’

ctib$xt to permit roquiisments. The
s:atute, however, requires that the safety
permit regulations apply, at a mtiimum.
10 “all transportation by a motor carrier”
of tha four c!asses of high risk
.
hazardous materials, discussed earlier
ir: this docaezt. The FHWA is aware
that this requirement might be
interpreted as requiring a safety permit
for the transportation of any quantity of
these four ciasses of high risk hazardous
materials. However. administrative
expedience dictates that the coverage of
the safety permit program be phased-in
based on the quantity of hazardous
material being transported. Accordingly,
we art3 proposing to limit the safety
parmit regulations to the transportation
of the specific classes of hazardous
materials set forth in the H?MTUSA of
1990, subject to the quantities and
phase-in periods discussed herein and
Mined in S 397.39 of this proposal.
After the program is fully implemented
and some experience is gained, the
FHWA will decide whether to propose
expanding the safety permit regulations
!o include other hazardous materials.
The HMTUSA requires that the safety
permit regulation.9 apply, at a minimum,
t3 motor carriers transporting four
specific types of hazardous materials.
One of the types of designated high risk
hazardous materials is class A and/or B
explosives (new RSPA hazard
classification, Division 1.1,l.Z. and 1.3;
sae 49 CPR 173.2, as amended).
Different quantities of class A and/or B
explosives are transported daily by a
vast number of motor carriers, primarily
private motor carriers of property. These
carriers include operators from A
diversity of industry groups, such as
explosives aagazine operators, quarry
operators, farmers, and persons ’
involved in fireworks displays.
Irnnediate application of the safety
permit requirements to these motor
carriers might present an undue
economic burden for these industries.
especially when many are solely
int.ras:ate operations which have never
Seen sr:bject to the FHWA’s regulations.
;Llany of these motor carriers would be
required to obtain financial
responsibility coverage in the amount of
53 mil!ion. In addition, the large
r.cmber of motor carriers applying for
safety permits could result in
administrative burdens which may
adversely affect the successful
implementation of the proposed
program. The proposed regulations,
therefore, would phasain. over a 3-year
p&od. the applicability of the safety
r+rmit requirement to motor carriers
jns?orting class A and/or B explosives
;s;2d on the quantities of these

56, N o . 1 1 5 I T h u r s d a y .

Tune 17, 1993 I

explosives bemg transported. The
phase-in would be implem:nted 2s
follows:

Troposed ii&es

requirements of *he ICMTuS.+. &.;,
cocrdmat1on w-ill ensure tiat i~.otor
carriers requesting a safety permit ~0
registered. have been issued a DOT
Covered quantities of ckss identification number, are in the FH~,v.+
Effective date
A and/or B exoiosives
I
hlotor Carrier Census File, and me
aware of the Agency’s routing
requirements.
As stated above. a hazardous material
designated as extremely toxic by
inhalation is another type of designated
high risk hazardous material covered by
the safety permit provisions of the
HMTUSA. The FiiWA is proposing that
Motor carriers transporting 1,000
safety permits be required for the
pounds or more of class A and/or B
transportation of hazardous materials
explosives on a single commercial
extremely toxic by inhalation that maet
motor vehicle would k required to
the criteria of Division 2.3, Hazard Zone
obtain a safet permit by November 16.
A, or Division 6.1, Pap&ing Group I,
1993. A yearTater (November 16.1994)
Hazard Zone A (see 49 CFR 173.115 and
motor carriers transporting 500 pounds
173.1321, if transported in quantities of
or more of c!ass A an&or B explosives
more than 1 liter (1.06 quarts). The
would be required to obtain a safety
FHWA is not considering the inclusion
permit. On November 16.1995, the
transported quantity of class A and/or B of Hazard Zone B hazardous materials
that am extremely toxic by inhalation in
explosives for which a safety permit is
the proposed permit program. Such
required would decrease to 55 pounds
action is consistent with the proposed
or more.
registration requirements imposed by
There will be no phase-in period,
the RSPA (57 FR 30620. July 9, 1992).
however. far the other three speciB,c
Hazard Zone B hazardous materials
types of hazardous materials (liquified
include such widely distributed
natural gas, hazardous materials
chemicals as chhxine, hydrogen sulfide,
designated as extremely toxic by
ethylene
oxide, and nitric oxide, to
inhalation, and highway route
controlled radioactive materials). Unlike name a few. This transportation mostly
Class A and/or B explosives, the FHWA involves quantities that are less than “in
bulk” (a containment system that has a
does not believe that immediate
capacity in excess of 3.500 water gailons
application of the saf8ty permit
or 468 cubic feet). The FHWA is
requirements to utrriers of these
interested in obtaining information from
materialo would present an undue
public and affected industries
the
economic burden on the motor canier
the transportation of Hazard
industry. There are far fewer carriers of concerning
Zone B hazardous materials that ara
these t s of hazardous materials, as
extremely toxic by inhalation.
well a8vii fewer movements of these
Specifically, should the safety permit
materials in interstate and intrastate
program be expanded to include the
commerce. Further, ctirs of these
transportation of Hazard Zone B
three typea of hazardous materiala
hazardous materials?
typically have greater financial
II. Applicability
responsibility co-e than would be
required under this NPRM.
This proposal would establish safety
Carriers of these types of hazardous
permit re uirements applicable to motor
materials are currently subject to some
carriers wIll‘ch transport designated high
form of Federal regulation (e.g.,
risk hazardous materials in interstate or
intrastate carriers of these mat8rials
in&&ate commerce. These
must comply with the packaging
requirements would apply to a motor
requirements of the Federal Hazardous
carrier’s officers. drivers. agents.
MateriaIs Regulations, 49 CPR 171-180). representatives, and 8m loyees.
Therefore, due to their greater
Section 8 of the HMTe SA applies to
familiarity with the Federal regulatory
both interstate and intrastate hazardous
system, it would be easier for them to
materials motor carrier operations.
obtain information on the proposed
Accordingly, the FHWA proposes to
requirements and to comply with a new amend part 397 by adding a compliance
regulatory program.
section to ensure that interstate and
The quantity provisions established
intrastate motor carriers subjed to part
and set forth in the definition of the
397 are also subject to all applicable
term designated high risk hozonions
parts of the FMCSRs (49 CFR parts 350materials are being coordinated with the 399). This Action is necessary Sin128 the
effolts curr8ntly ongoing to implement
FHWA intends to use the provisions of
the registratioa and routing
part 385, “Safety Fitness Procedures.”

Federal

ljster I Vol. 58. No. 115 I Thursday, J

in making determinations whether to
issue. or deny, a request for a safety
permit for either interstate or intrastate
motor carriers. This determination will
ensure that motor carriers engaged in
the transportation of designated high
risk hazardous materials in interstate or
intrastate commerce meet the “fit,
willing, and able” requirement of the
HMTUSA.
Once these proposed rules have been
promulgated and fully implemented,
data will be collected and analyzed to
assess the effectiveness of the safety
permit program. Based upon its analysis
of data collected, the FHWA will
determine whether to pro ose to extend
the applicability of the saEt permit
program to other classes ancrquantities
of hazardous materials. Any subsequent
action would be taken aEer notice and
opportunity to comment have been
provided.
III. Transportation Without a Safety
Permit Prohibited
The HMTUSA provides that no motor
carrier shall transport or cause to be
trans orted any hazardous material for
whicri a permit is required in interstate
or intrastate commerce unless the motor
carrier has obtained a safety permit
which authorizes such transportation.
Violation of that prohibition could
result in civil penalties up to $25,000
per violation, per day, as provided for
in the HMTA.
IV. Definitions
The FHWA believes it is important to
define new terms which would be used
in this proposed rule. Accordingly,
definitions of the terms designated high
risk hazardous materials, extremely
toxic by inhalation materials, and in
bulk are provided. The FHWA, in
issuing a final rule, will ensure that the
definitions used sre consistent with the
definitions used in the Hazardous
Materials Regulations.
V. Application Procedures
A motor carrier would have to appIy
to the FHWA for a permit to transport
the designated high risk hazardous
materials. A motor carrier would be
required, at a minimum, to submit a
Motor Carrier Identification Report.
Form MCS-150, to obtain a motor
carrier safety permit hrn the FHWA.
A revised Form MC!&150 would be
used by motor carriers as an application
for a safety permit. The application
would have to be signed by an official
of the motor tier and notarized, to
comply with the provisions of the
HMTUSA that require the rmit
application to be submitterunder oath
(49 U.S.C. app. 1805(d)(7Il.

17, 1 9 9 3 / Proposed Ruies

The application for a permit would be
submitted to the Regional Director,
OfEce of Motor Carriers;for the region
in which the motor carrier has its
principal place of,business. See 49 CFR
390.27, Locations of regional motor
carrier safety offices, for domestic and
foreign motor carriers. This will help
expedite the safety permit procedure
since the in-depth compliance reviews
used to gather safety fitness and other
information am completed by the
FHWA’s field offices. Renewals would
be handled similarly.
The safety rating notification letter
currently being sent to a motor carrier
would be modified to serve as the safety
permit and would authorize the motor
carrier to transport designated high risk
hazardous materials. The letter would
bear a safety permit number, which
would be the motor carrier’s DOT
identification number required by
5 390.21 of the FMCSRs. Motor carriers
which have already been assi ed DOT
identification numbers woul cr
have to
appl for a safety permit by submitting
ano t.z er Form MCS-150. Motor carriers
which have never applied for a DOT
identification number would be allowed
to apply for an identification number
and a safety permit simultaneously
using a sin le Form MC!%lSO.
TheHh4&SArequiresthatpermit
application procedures also provide for
the aawse3nant of fees nv to
recover the full costs of administering
the motor carrier safety permit
requirements. As diecussed above, we
are proposing to make extensive use of
existing F’HWA programs, forms, and
procedures, and the program
ap licability would be initially limited
to Pour spedfic groups of hazardous
materials, therefore, reducing the
number of motor carriers covered.
Enforcement of the proposed safety
permit
uimments would be
accompli
=zhed within the framework of
existing programs (i.e., compliance
reviews and roadside inspections). As a
rwult, the FHWA has determined that
no measurable cost would be
attributable to the administration of the
proposed motor carrier safety permit
program. In addition, the collection of
fees for the issuance of a permit would,
in itself, add to the government’s cost of
administration. Accordingly, the FHWA
reposes not to assess fees at this time,
1ut will review the necessity to do so in
thefutureasthe rogremisfully
implemented ancr expanded to include
other motor carriers of hazardous
materials. This will allow the FHWA to
gain more information and experience, .
which would assist us in establishing.an
appropriate and correct fee structure.
The FHWA welcomes public comment

33421

pertaining to the assessment of per:!
fees.
VI. Safety Permit Application
Determinations
Determinations on safety errnit
applications would be ba SJ upon a
safety fitness finding made pursuant to
49 CFR part 385. A “satisfactory” safety
rating would be a prerequisite to the
grmtiq3 of e safety permit. A less than
“satisfactory” safety rating would tesdt
in a denial of the ermit apphcation.
The FHWA woulx have the discretion to
issue a temporary safety permit to an
unrated motor terrier pending a safety
fitness determination. A temporary
safety permit would remain in effect for
up to 120 days from the date of issuance
or until a “satisfactory” safety rating is
assigned, whichever occurs first. Once
the motor carrier is assigned a
“satisfectory” safety rating, the
tempo
safety permit would be
convert
Kto a g-year permit. If the
motor carrier fails to achieve a
“satisfactory” safety rating within 120
days, the tern orary permit would
expire. No Sal ty permit would then be
issued until a “satisfactory” safety
rating is achieved.
Intrastate motor carriers (for-hire and
rivete) and those motor carriers of
Pore@ domicile conducting operations
in the United States, which currently
am not required to obtain a U.S. DOT
identification number, would be
required to submit a Form MCS-150 tG
appl for e safety permit. As this
Jetion would affect motor carriers in
Lade and Mexico, we have completed
analysis of the United
a prelimin
States-Cans79Free-Trade Agreement
(FTA) (19 U.S.C. 2112) and the US.
obligations under the General
Agreement on Tariffs and Trade
(GATT). The FHWA b&eves that this
proposed ruiemaking would not violate
either the FTA or the GATT. It is this
agency’s interpretation that the FTA
does not constitute an impediment nor
pmhibit the implementation of this
proposed regulation. The most relevant
provision of the GATT is article IXI
which addresses the National Treatment
on Internal Taxation and Regulation. To
violate article BX of the CATI’, there
must be some degree of differentiation
between the.tmatment of the products of
a contracting party and either the
products of another contracting party or
the domestic party. This proposed
rulemaking would not distinguish
between US. and Canadian products,
and the proposed permit requirement
would treat all U.S. and foreign motor
carrien and shippers transporting
hazardous materials in the same
manner.

Federal Register I Vol.
A motor carrier which has not been
assigned a safety rating or has not been
subject to these Fedsral rules would he
squired to certify, in writing, that the
color carrier is operating in full
compliance with the FMCSl?s or
comparable State reguiations. including
fxncial responsibility required by 49
CFR part 387 or by State regulation.
whichever is applicable. It should be
understood that during the 120-day
temporary permit period, the motor
carrier would have to bring its operation
into full compliance with the Federal
hazardous materials regulations, the
Federal motor carrier safety regulations,
and any applicable mi.nim,um financial
respontibility laws and rr@atiozu An
official with authority to bind the motor
carrier would be required to exeoUe the
certification. Motor carriers which have
not bean assigned a safety rating may,
upcn filing a properly executed Farm
KS-150 and certiEcation, obtain a
temporary safety permit which would
ailow the motor carrier’s operation to
continue far the ii;tarim rxriod of UD to
12oda 0.
The hiWA’o Motor skier
hknagement Information System
(MCMXS) would be modified to identify
motor carriers that have been issued
safeQ permits. Safety fiinasa and pannit
information would be available to
Federal, State and local agencies egd the
public upon written, oral. or electmnic
request
VII. Review of Safety Permit Detials
A safety permit application would be
denied on the basio of a safety Etmss
determination and rating issued in
accordance with 49 CFR part 385, Sleety
Fitness Procedures. Accordingly. any
party whose safety permit application ir
denied would be able to obtain a rahw
of FI-IWA’s determination by requestiq
a change in the safety rating. pursuarrt
to !j 385.15 or 5 385.17, whichever is
applicable.
VIII. Failure to Report
Fsilure to file a Form MC!&150,
-Motor Carrier Identification Report
(which would serve as the safety permit
appkationl, or fumi&ng false or
misieadicg information in a Form MCS150 or any document filed during a
safety permit proceeding, would result
in the denial or revocation of the safety
permit and may subject the motor
carrier to civil or criminal penalties.
Ix. Conditions for Safety Peumit
The F?IWA has included in &is
Froposal conditions which would apply
!J each safety permit issued. Motor
-atiers would have to clearly display
:‘:e assigned safety permit numbers on

No. 1 1 5 / Thursday, June 17, 1993 /
the shipping paper or on the appropriate
transportation document which
contains the description of the hazardous materials being transported
and for which a safety p?r+ is
required. A motor carrier holding a
safety permit would also be required to
display, on each commercial motor
vehicle used to transport such
hazardous materials, its name, city and
State location, and its DOT
identification number as required by 49
CFR 390.21. This would fulfill the
uirement in the HMTUSA that a
“9
sa ety pennit or proof of the existerxe
of such a permit (permit numberl.
issued by the FHWA, is maintained in
the motor wkkle (49 USC. epp.
1805(d)(l)j. Also. 49 CFR 177.817,
* sthetthe
“Skippins papers,”
heavai
T
bleonthe
Wving pa
0 for information purpoess
motor vehicr
in the ewnt of em accidetnt or vehick
inspection. Since the shipping
uimitobe
docamemtisalread~
during
carried on the motor %‘clr
ve
trane, the proposed
requbwrnent wdd rxlhlimi~ any
additional paperworkburden placed
~;~s~d~~; Tk FHWA intends
in&m&ion system to
mvlda immediate per&t VeriEceuion
%y enforcement a5cials at roadside, or
byashipperorthepublic.Tbiswillbe
done by adding a “permit” data base to
the agenr$s &3ting information
systems. sudl action WUUM reqoire
simple adjustments to existirq pqrems
with Qixliraal costs iElvolved.
Additfvnai conditivns epec%c to the
transportadm of highway mute
contToned quantity radiwctiv8
material or tlass A an&or B explosives
am also prqmed. For exemple, safety
emits issued forth transportation of
El* way mute conirolld qtxandty
raiz‘oacdw matcdala would require that
each comnmrcial motor vehicle be
inspected befors each trip. In addition,
motor aurim would be required to
maintain a writtancurtikation of each
inspection, aa perfarmed by e quaUM
inspector me&q the mquirements
Bpecifled in s 396.19. rnspectm
qutications, of the FMC!ZXs. This
propos8d raqairement would satisfy the
inspection and wrtiflcaticm requirement
of don 15(d)(l) dthe HMTUSA.
x. Renenal of safety Permits
Procedures would be provided fur
renewing a safety permk The renewal
prucass woakl continue to purge the
system of motor carriers not currently
operating under a permit. aid
compliance and enforcement efforts,
ad wrw as a timetable for routine
monitoring of motor carrier operations
continuing under a safety permit. Motor

posed Rules

carriers would be required to renew
their safety permits every 3 years. As
part of its review of appiications for
permit renewals. the FHWA will check
its motor carrier management
information data base, State records.
complaint @tiB. and other
compliance information sources before a
final decision wncaming permit
renewal is made. A decision to renew a
the factors
permit will be mad13 utilizing
. .
considered in dsterrmrung
asafety
rating set fcutb in 49 CFR 385.7. A safety
compliance rwif~ may not lx3
necessary or prackal when reviewing
applications for renewaL A compliance
review will lx conducted, however,
wherever then, is an indication of a
compliance problem.
The Form MCS-150 would be used to
initiate the x8newal process. Where
appropriate. supplementary information
regarding current operations may be
necessary to further process the safety
permit renewal request. Depending
upon the number of renewal
applications raceived at any giwn time.
the issuance of renewals may be delayed
for a short period of time. Therefore, if
a motor carrier Eles for renewal at least
90 days, but no mom then 180 dayr.
prior to the permit’s expiration date, the
safety permit would remain in force
until the renewa procasa is completed
and a determination is made.
Awodingly, failure to file for renewal
at least 90 days in advance of expiration
may result in temporary loss of the
permit.
XI. Penalties
The regnlation proposed herein
would be issued pursnant to the
authority granted by the HMTA, as
amended by the EIMTUSA, and
consequently any violation of its
provisions would be s&j& to the civil
and crimiml pemalties se4 forth in 49
U.S.C. 1809 (1991).
Rulemaking Analyses and Notices
Regulatoryhpuct
The propos& contained in this
document would implement the
congressional mandate of the HMTUSA
which restricts the trsnsportaiion of
certain designatd h&b rislr hdous
materials in interstate and intrastate
commerce to motor cxrien that hold
safety permits, issued by the FHWA,
authorizing the transport of those
hazardous materials. Furthar,
transportation of highway route
controlled quantiQ radih
materials woukl be *itad UnleJs
the commercial motor vehicle was
inspected and mrtified to k in

compliance with all aI@icable

I

Federal

,ister f Vol. 58, No. 115 I Thursday, J.

regulations before each trip. The
mlTGSA requires that regulations
implementing its provisions must b8
issued by November 16,1991. and that
the parmit requirements b8 effective.
xovember 16, 1992.
The permit and inspection
requirements proposed herein would be
merged into existing FHWA program
areas (e.g., Safety Fitness Procedures.
Selective Compliance and Enforcement
Program) and would produce minimal
additional burden on the regulated
industry.
Executive Order 22291 (Federal
Regulation) and DOT Regulatory
Policies and Procedures
The FHWA has determined that this
document does not contain a major rule
under Executive Order 12291. but is a
significant
lation under the DOT
icies and procedures
regulatory po
T
because of substantial congressional and
public interest. This interest is due to
the potential for some motor carriers
failing to obtain the required permit to
transport certain designated high risk
hazardous materials. A draft regulatory
evaluation has been prepared and
placed in the docket. As discussed id
the draft regulatory evaluation, the
anticipated economic impact of this
proposed rulemalring on the interstate
motor carrier industry will be minimal.
At this time, the FHWA is unable to
determine the precise impact of this
proposed rulemaking on intrastate
motor carrier operations because the
agency has had no regulatory authority
over intrastate &age. The FHWA
requests information identifying the
ictrastate motor carrier population to be
affected by this proposed rule. This
information will assist the agency in
determining the economic impact on
ih:s portion of the motor carrier
industry and any additional impact
~~CC!I may result from also havingto
come into compliance with the rest of
the FMXLs.
Ergulata~ Flexibility Act
In comlp\iance with the Regulatory
Flexibility Act (Pub. L. 96354), the
agency has evaluated the effects of this
Froposed rulemaking on small entities.
Some small entities would be
economically impacted by this
ru!emaking, if promulgated, and would
not be allowed to transport certain
designated high risk hazardous
materials if thay cannot obtain the
required permit from the FHWA.
However, the FHWA believes that
re!atively f8W small motor uvriers will
fail to cbtain the required permit.
Lloreover, this rule will serve as a
powerful incentive to gain compliance

17. 1993 / Proposed Rules

with the FLfCSRs by such motor carriers
who wish to avoid these adverse
consequences. Thus, un&8r the criteria
of the Regu!atoiy Flexibility Act, the
FMVA hereby certifies that this action
will not have a significant economic
impact on a substantial number of small
entities.
Executive Order I 2612 (Federalism
Assessment)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
12612, and it has been determined that
the proposed rule does not have
sufficient federalism implications to
warrant the preparation of a Federalism
Assessment. While the congressional
mandates required by the HMTUSA will
require changes to be made to the
FMCSRs, no changes will be required to
the regulations governing the Motor
Carrier Safety Assistance Program
(MCSAPI. Accordingly, the impact on
the various States by the changes being
proposed will b8 minimal. This new
permit requirement would preempt only
a State permit requirement dealing with
transportation of the same hazardous
materials and only to the extent such a
State pennit is based upon a
demonstration of safety fitness. The
various States are requested to submit
comments on this proposal and advise
the FHWA of the effect, if any, on their
participation in the MCSAP.
PapeMrork Reduction Act
In accordance with the Paperwork
Reduction Act of 1980.44 U.S.C. 3501
et seq., the reporting and recordkeeping
provisions that are included in this
proposed regulation are being submitted
to the Office of Management and Budget
for approval.
National Environmental Policy Act
The agency has analyzed this action
for the purpose of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.1 and has determined
that this action would not have an
adverse effect on the quality of the
enviroment.
Regulatory Identification Number
A regulatory identification number
(RlN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center ublishes
the Unified Agenda in Apri and
October of each year. The RIN contained
in the heading of this document can be
used t0 cross r8ference this action with
the Unified Agenda.

f

33423

List of Subjects in 49 CFR Part 397
Hazardous materials transportation,
Highways and roads, Motor carriosafeety permits.
Issued on: June 9. 1993.
Rodney E. Slater,
Acfministmtor.

h consideration of the foregoing. the
Fw.4 iS iUIt8diJJg titi8 49. cd8 Of
Federal Regulations. subtitle B, chapter
III, part 397. as follows:
PART 39’1--TRANSPORTAllON OF

HAZARDOUS MATERIALS
1. The authority citation for part 397
iS r8ViS8d to read as follows:
Authority: 49 U.S.C. app. 1801-1813.
2. Part 397 is amended by revising the
heading to read “Transportation of
hazardous materials.” by adding a
heading to subpart A (§§ 397.1 through.
397.19) to read “Driving and parking
rules,” and by adding a new Subpart B
to read as follows:
Subpart B-Motor Carrier Sefaty Permits
sec.

397.31 Purp0.38 and scope.
397.33 Applicability.
397.35 Compliance with Federal Motor
Carrier Safety Regulations.
397.37 Transportation without a safety
permit prohibited.
397.39 Definitions.
397.41 Application procedures.
397.43 Safety permit determinations.
397.45 Review of safety permit
determinations.
397.47 Failure to file report.
397.49 Conditions for safety permit.
397.51 Renewal of safety permit
application.
397.53 Penalties.

a

Subpart B-Motor Carrier Safety
Permtt8
Purpom and scope
(a) The purpose of this subpart is to
enhance motor carrier safety and to
promote the safe transportation of
designated high risk hazardous
materials in interstate and intrastate
comm8rce by requiring motor carriers to
obtain a safety permit from the mVA
authorizing such transportation.
(b) This subpart prescribes minimum
requirements for motor carriers to apply
for and obtain safety ennits to
transport designated fit igh risk
hazardous materials, as defined in
!j 397.39.
5 397.31

g397.33

Appliability.

The provisions of this subpart shall
apply to any motor carrier that
transports or causes to be transportec’
interstate or intrastate c0mmerc8 any
designated high risk hazardous mateno.,

33424

Federal Register /

as defined in 3 397.39.‘0fficers, drivers,
agents, representatives, and employees
of the motor carriers subject to this
subpart shall comply with the
r0v-Mon.s of this subpart and be
K owledgeable of its requirements. .
4 397.36 Complhnw with Fedoml Motor
cordor safety AsQul8tlocu.
Any motor carrier that transports or

causes to be transported in interstate or
intrastate commerce any designated
high risk hazardous materials, as
defined in 5 397.39, shall comply with
all applicable parts 350 through 399 of
this subchapter.
4 397.37

mqmtation wiuloul l safety

pwrnlt prohlbttmd.

No motor carriar shall transport or
cause to be transported any designated
high risk hazardous material, as defined
in S 397.39 in interstate or intrastate
commerce, unless the motor carrier haa
obtained a safety permit, issued under
this subpart, which authorizes such
transportation.
p 397.39 Definitiono.
For the purposes of this subpartDesignated high risk hazardous
materials means highway route
controlled quantity radioactive
materials (new RSPA hazard
classification, Class 7; see 49 CPR 173.2,
as amended), liquefied natural gas in
bulk (new RSPA hazard classification,
Division 2.1; see 49 CFR 173.2, as
amended), more than one liter (1.06
quarts) per package of a hazardous
material extremely toxic by inhalation
(new RSPA hazard classification,
Division 2.3, Hazard Zone A. or
Division 6.1, Packing Group I. Hazard
Zone A; see 49 CFR 173.2, as amended),
and the following quantities of class A
and/or B explosives. including
packaging (new RSPA hazard
classification, Division 1.1, 1.2, and 1.3;
see 49 CFR 173.2, as amended):
(a) Effective on November 161993.
454 kilograms (1,000 pounds);
Ib) Effective on November 16.1994,
227 kilograms (500 pounds); and
(cl Effective on November 16,1995,
2s kilograms (55 pounds).
Extremely toxic by inhalation
matetials means those hazardous
materials transported in quantities
which excaed one liter (1.06 quarts) per
package and meet the criteria of
Division 2.3, Hazard Zone A, or
Division 6.1, Packing Group I, Hazard
Zone A (sea 49 CFR 173.115 and
173.132).

In bulk means a containment system
t-hat has a capacity in excess of 3,500
water gallons or 468 cubic feet.

1. 58, No. 115 / Thursday, June 17, 1s

I Proposed Ruies

4397.41 Appllcmlon pr0ceduns.
5 397.45 Rsvbw of safety pmntt
detwmin8Uonr
(al A motor carrier shall submit a
completed Motor Carrier Identification
In obtaining a review of a safety
Report, Form MCS-150., to~- obtain
permit determination made pursuant :o
---- a
motor carrier safety permit authorizing
5 397.43. the motor carrier shall fol!ow
the transportation of designated high
the procedures established in 5 385.15
risk hazardous materials. The Form
or 5 385.17 of this subchapter.
MCS-150 (application form) shall be
signed by an official of the motor carrier $397.47 Failure to flk npon
Failure by a motor carrier to file a
and notarized.
Motor Carrier Identification Report,
51) The MC%50 (application form)
Form MC%150, pursuant to the
shall be submitted to the Regional
provisions of 5 385.23 of this
Director, Office of Motor Carriers,
Federal Highway Administration, in the subchapter, furnishing misleading
information, or making false statements
region where the motor carrier’s
in the Form MCS-150 or any other
principal place of business is located.
document that may be required
(See 49 CFR 390.27, Locations of
pursuant to this subpart will subject the
regional motor carrier safety offices, for
motor carrier to the penalties prescribed
domestic and foreign motor carriers.)
fc) Application forms may be obtained in 49 U.S.C. 1809.
by contacting any of the Federal
$397.49 CondItIona fw ufoty permit
Highway Administration’s regional
(a) Safety pennits shall be issued for
motor carrier safety of&es.
a period of 3 years.
RI) Safety permit numbers shall be
5397.42 sehty partnit dotafInlnetioru.
clearly displayed on shipping papers or
(a) Determinations concerning the
the appropriate transportation
granting, denial, suspension, or
document which contains the
revocation of a safety permit shall be
descri tion of the designated high risk
made ursuant to the Safety Fitness
hazar8 ous materials which require a
Proce Buresof art3850fthis
safety
*
subchapter anx the provisions of this
(cl d4!iTtbr carrien must comply
subpart. A “satisfactory” safety rating is with the Federal hazardous materials
a prerequisite to the granting of a safety regulations, the Federal motor carrier
permit. A less than “satisfactory” safety safety regulations, and any applicable
rating will result in a denial of the
minimum financial responsibility laws.
permit application, or revocation or
and regulations.
zuus;sion of a safety permit previously
(d) Motor carriers must have and
maintain a “satisfactory” safety rating
51) A written notification of a
issued by the FHWA, aa prescribed in
“satisfactory” safety rating issued
part 385 of this subchapter.
pursuant to 5 385.11 of this subchapterfe) Motor carriers transporting
shall serve aa the safety permit and shall highway route controlled uantity
*
include the safety permit number
radioactive materials shall%a subject to
assigned.
the followin additional conditions:
(1) The ve tcle shall ba inspected in
(c) A temporary safety permit may be
accordance with Appendix G to
issued to an unrated motorcarrier
subchapter B of this chapter before each
pending a safety fitness determination,
provided the motor carrier has certified ki:
in the permit a plication that it is
P2) Inspections of the vehicle must be
performed by a qualified inspector who
operating in f u r1 compliance with the
meets the requirements specified in
FMCSRs or comparable State
5 396.19 of this subchapter:
regulations, including financial
(3) Written certi5catlons that each
responsibility required by part 387 of
vehicle has been inspected in
this subchapter or by State regulation,
accordance with this paragraph must be
whichever is applicable.
prepared and retained for a period of
(d) A temporary safety permit shall
one ear;
remain in effect for no more than 120
(4rThe certification statement shall
days from the date of issuance or until
include:
a safety rating is assigned, whichever
5) The vehicle identification number;
occurs 5rst. If a motor carrier is assigned
(ii) Date of inspection;
a “satisfactory” safety rating, a safety
(iii)
_. .-Certification statement;
permit shall be issued in accordance
[ivl The qualified inspector’s name;
with paragraph
(v) Signature of a motor carrier
-_ 51) of this section. If the
motor carrier fails to obtain a
official; and
“satisfactory” safety rating within 120
(5) The routing and training
days, no safety permit shall be issued
requirements of 5 177.825 of this title
until a “satisfactory” safety rating is
must be complied with by both the
assigned.
carrier and the driver.

Federal

&ter / Vol. 58. No. 115 / Thursday, JUB 17, 1993 / Proposed Rules

i fl hfotor carriers transporting
explosives for which a safety permit is
required pursuant to this subpart shall
be subject to the following conditions:
(1) The motor carrier shall comply
with the requirements of 5 397.9 of this
part concerning written route plans; and
(2) The motor carrier shall comply
with the attendance requirements of
5 397.5 of this part
9397.51 Aonw8lof8afatypwmlt
applhtlon.
(al A motor carrier shall submit a
completed motor carrier safety permit
application, Form MCS-150, Motor
Carrier Identification Report, in order to
renew a motor carrier safety permit
authorizing the transportation of
designated high risk hazardous
materials.
(II) The Form MCS-150 (application
form) used for renewal shaI.l be
submitted to the Regional Director,
Office of Motor CUTWIJ, in the region
where the motor tier’s de@namd
principal place of businasa ia located.
(See 49 CFR 390.27, Locationr of
regional motor carhr safetl, 05~98, for
domestic and foreign motor carriera.)
(cl To permit timely consideration, an
application for renewal should be
submitted at least 90 days. but not more
than 180 days. before the expiration
date of the safety permit to be renewed.
Id1 If a motor carrier files an
application for renewal in accordance
with paragraph (c) of this section which
is complete and conforms with the
requirements of this section, the existing
safety permit will not be considered to
have expired until the application for
renewal has been approved, modiff ed,
or disapproved.
(e) If a motor carrier fails to file for a
renewal of a safety permit at least 90
days prior to expiration, a temporary
loss of the permit may result
§ 397.53 Penaltloa

Violations of any of the mquimments
imposed by this subpart are subject to
penalties provided in 49 USC 1809
(1990), i.e.. civil penalties of not more
than $25,000 or leas than $250 per
violation, and criminal penaltier for
willful violations of up to $50,000 per
violation or five (5) years,
imprisonment or both
LFR Dot. N-14255 Filed 6-16-83; 8:~ au.11
e4wMo coos.eal~

33423
.