Title of Regulation: 9VAC20-110. Regulations Governing the Transportation of Hazardous Materials (amending 9VAC20-110-110).

Statutory Authority: § 10.1-1450 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: November 18, 2015.

Effective Date: December 3, 2015.

Agency Contact: Debra Harris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4209, FAX (804) 698-4346, or email debra.harris@deq.virginia.gov.

Basis: This regulation is promulgated under the authorities of § 10.1-1450 of the Code of Virginia, which requires the Virginia Waste Management Board to promulgate regulations designating the manner and method by which hazardous materials shall be loaded, unloaded, packed, identified, marked, placarded, stored, and transported. Additionally, the board's overall authority is provided in § 10.1-1402 of the Virginia Waste Management Act, Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia, which authorizes the Virginia Waste Management Board to promulgate and enforce regulations necessary to carry out its powers and duties and the intent of the chapter and federal law.

Purpose: The Virginia State Police is provided grant funds through the federal government's Motor Carrier Safety Assistance Program (MCSAP) for its hazardous materials program. A program audit by the U.S. Department of Transportation's Federal Motor Carrier Safety Administration noted that 9VAC20-110 did not include the requirements of Subpart F of 49 CFR Part 107, which is a condition for the grant. Therefore, an amendment to 9VAC20-110-110 to add Subpart F to the list of federal regulations incorporated by reference is necessary. This amendment will provide the Virginia State Police with the ability to ensure cargo tanks used to transport hazardous material are properly registered in accordance with federal requirements and will also meet the conditions for the MCSAP grant and will provide a beneficial impact for the public's safety.

Rationale for Using Fast-Track Process: This amendment is not expected to be controversial as it is necessary to revise the regulation to meet the MCSAP grant conditions and provide the Virginia State Police with the ability to ensure hazardous material transport cargo tanks' registration, and records are in accordance with federal requirements.

Substance: The changes to the regulations have been made to include the requirements of Subpart F of 49 CFR Part 107.

Issues: There are no advantages or disadvantages to the public. The advantage to the Commonwealth is that this amendment will provide the Virginia State Police with the ability to ensure cargo tanks used to transport hazardous material are properly registered in accordance with federal requirements and will also meet the conditions for their MCSAP grant.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Waste Management Board (Board) proposes to amend its Regulations Governing the Transportation of Hazardous Materials to incorporate by reference 49 CFR 107 Subpart F (which is a federal regulation that includes registration and recordkeeping requirements for people who manufacture, assemble, inspect or repair certain cargo tank motor vehicles).

Result of Analysis. Benefits likely outweigh costs for this proposed regulatory change.

Estimated Economic Impact. The Board's Regulations Governing the Transportation of Hazardous Materials set rules for (and incorporate federal regulations that affect) the State Police's enforcement of safe hazardous materials transportation. The State Police are able to get grants to defray the cost of enforcement through the federal government's Motor Carrier Safety Assistance Program (MCSAP) so long as this regulation includes all applicable federal rules. A recent audit by the U.S. Department of Transportation, however, noted that the Board's Regulations did not include the requirements contained in 49 CFR 107 Subpart F. In order for the State Police to continue to be eligible to apply for MCSAP grants, the Board now proposes to incorporate 49 CFR 107 Subpart F by reference.

No affected entity is likely to incur any costs on account of this regulatory change because all regulated entities already have to follow all applicable federal laws and regulations. This proposed regulatory change will benefit regulated entities as it will give them a more complete picture of the rules that they must comply to. The State Police will also benefit from this change as it will allow them to continue getting federal grant money to defray the costs of this enforcement program.

Businesses and Entities Affected. All individuals or entities that haul hazardous materials, as well as the State Police that enforce hazardous waste transportation laws and regulations, will be affected by this regulatory change. Board staff reports that approximately 33,000 cargo tank trucks hauling hazardous materials are inspected by the State Police each year.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulation is unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. This proposed regulation is unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any costs on account of the proposed regulation.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any costs on account of the proposed regulation.

Real Estate Development Costs. This proposed regulation is unlikely to affect real estate development costs.

Legal Mandate.

General: The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order Number 17 (2014). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation.

Additionally, pursuant to § 2.2-4007.1, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The amendments incorporate by reference 49 CFR Part 107 Subpart F, a federal regulation that includes registration and recordkeeping requirements for people who manufacture, assemble, inspect, or repair certain cargo tank motor vehicles.

Part III
Compliance with Federal Regulations

9VAC20-110-110. Compliance.

Every person who transports or offers for transportation hazardous materials within or through the Commonwealth of Virginia shall comply with the federal regulations governing the transportation of hazardous materials promulgated by the United States Secretary of Transportation with amendments promulgated as of October 1, 2014, pursuant to the Hazardous Materials Transportation Act, and located at Title 49 of the Code of Federal Regulations as set forth below and which are incorporated in these regulations by reference:

1. Special Permits. 49 CFR Part 107, Subpart B.

2. Registration of Cargo Tank and Cargo Tank Motor Vehicle Manufacturers, Assemblers, Repairers, Inspectors, Testers, and Design Certifying Engineers in 49 CFR Part 107, Subpart F.

2. 3. Registration of Persons Who Offer or Transport Hazardous Materials in 49 CFR Part 107, Subpart G.

3. 4. Hazardous Materials Regulations in 49 CFR Parts 171 through 177.

4. 5. Specifications for Packagings in 49 CFR Part 178.

5. 6. Specifications for Tank Cars in 49 CFR Part 179.

6. 7. Continuing Qualification and Maintenance of Packagings in 49 CFR Part 180.

7. 8. Motor Carrier Safety Regulations in 49 CFR Parts 390 through 397.