Q1. As prescribed in § 173.5(a), for other than a Class 2 material, the transportation of an agricultural product over local roads between fields of the same farm is excepted from the requirements of the HMR if it is transported by a farmer who is an intrastate private motor carrier and the movement of the agricultural product conforms to requirements of the State in which it is transported and is specifically authorized by a State statute or regulation in effect before October 1, 1998. Does the Ohio statute in effect prior to October 1, 1998 "specifically authorize" such movement?

A1. The answer is yes. Section 4923.02 of the Ohio statute, which was in effect prior to October 1, 1998, explicitly authorized the movement by a private motor carrier engaged in the transportation of farm supplies to the farm or farm products from farm to market.

Q2. Answer A1 in your May 27, 2016, clarification states that the current State law or regulation must have come into effect before July 1, 1998. It is our understanding that you meant October 1, 1998. In 2013, the State of Ohio adopted the HMR by reference. If you find that the 1998 Ohio statute specifically authorized the movement described in Question Q1, what impact, if any, does the revised statute have on use of the exception authorized in § 173.5(a)?

A2. The State of Ohio's adoption of the HMR by reference in a 2013 statute amendment is not relevant. Unless otherwise excepted, the HMR has been applicable to the intrastate transportation of hazardous materials since October 1, 1998. However, because the movement of the agricultural product conformed to the requirements of the State in which it was transported, and was specifically authorized by a State statute or regulation in effect before October 1, 1998, the exception in § 173.5(a) is authorized. Further, the Federal hazmat transportation law does not prohibit a State from enacting a law or regulation that would restrict or repeal the agricultural exceptions provided by § 173.5(a) of the HMR regardless of the effective date.

Q3. Answer A2 in your May 27, 2016, clarification appears to be in conflict with Answer A1. In Answer A1, you state the current State law or regulation must be in effect before July 1, 1998 (October 1, 1998). In Answer A2, you state that a State statute or regulation does not have to exist authorizing movement in accordance with § 173.5(a)(2) and that the HMR independently excepts shipments from any State law that came into effect after July 1, 1998 (October 1, 1998). Please explain.

A3. Answers A1 and A2 of this response clarify the authorization to use the exceptions provided by § 173.5(a)(2) of the HMR either before, after, or before and after October 1, 1998. However, in retrospect, it is the opinion of this Office that the four conditions prescribed in § 173.5(a) are not mutually exclusive; all four conditions must be met. Consequently, the exception from the requirements of the HMR for other than a Class 2 product must be transported by a farmer who is an intrastate private motor carrier, and the movement of the agricultural product must conform to requirements of the State in which it is transported and be specifically authorized by a State statute or regulation in effect before October 1, 1998.