[Federal Register Volume 62, Number 140 (Tuesday, July 22, 1997)]
[Rules and Regulations]
[Pages 39398-39409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18995]
[[Page 39397]]
_______________________________________________________________________
Part VI
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Parts 171 and 172
Improvements to Hazardous Materials Identification Systems; Corrections
and Responses to Petition for Reconsideration; Final Rule
Federal Register / Vol. 62, No. 140 / Tuesday, July 22, 1997 / Rules
and Regulations
[[Page 39398]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 and 172
[Docket No. HM-206]
RIN 2137-AB75
Improvements to Hazardous Materials Identification Systems;
Corrections and Responses to Petitions for Reconsideration
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; editorial revisions and responses to petitions for
reconsideration.
-----------------------------------------------------------------------
SUMMARY: In this rule, RSPA is making changes to a final rule published
on January 8, 1997, in which RSPA amended the Hazardous Materials
Regulations to better identify and communicate the hazards associated
with hazardous materials in transportation in commerce. This final rule
corrects errors in, and responds to petitions for reconsideration of,
the January 8, 1997 final rule. The changes in this final rule include
postponement until October 1, 1998, of the effective date of the
January 8, 1997 final rule, and October 1, 1999, of the date for
compliance with a requirement for new labels on packagings containing
materials poisonous by inhalation.
As modified by this final rule, the January 8, 1997 final rule is
intended to assist emergency response personnel in responding to and
mitigating the effects of incidents involving the transportation of
hazardous materials, and to improve safety to transportation workers
and the public.
DATES: Effective date: The effective date for the final rule published
under this docket at 62 FR 1217 on January 8, 1997, is delayed until
October 1, 1998. This final rule is effective October 1, 1998.
Compliance date: Voluntary compliance with the January 8, 1997
final rule has been authorized beginning February 11, 1997. Voluntary
compliance with this final rule is authorized beginning July 22, 1997.
FOR FURTHER INFORMATION CONTACT: Helen L. Engrum or Paul Polydores,
telephone (202) 366-8553, Office of Hazardous Materials Standards,
Research and Special Programs Administration, U.S. Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On January 8, 1997, RSPA published a final rule (62 FR 1217) in the
Federal Register under Docket HM-206 that amended the hazard
communication requirements in the Hazardous Materials Regulations
(HMR), 49 CFR Parts 171-180, to enhance the identification of hazardous
materials during their transportation in commerce. This rule was issued
in response to Section 25 of the Hazardous Materials Transportation
Uniform Safety Act of 1990 (HMTUSA) (Pub. L. 101-615), which required
the Secretary of Transportation to initiate a rulemaking to, among
other matters, determine methods of improving the existing system of
placarding vehicles transporting hazardous materials.
RSPA received more than 20 petitions for reconsideration of that
rule and other inquiries and comments identifying errors and requesting
clarification. The petitions for reconsideration requested changes to:
(1) The effective date for parts or all of the final rule, including
postponement or withdrawal of new requirements applicable to materials
poisonous by inhalation (PIH) until such time as similar requirements
are adopted as international standards; (2) the requirements to display
identification number markings on transport vehicles and freight
containers containing large quantities of hazardous materials in non-
bulk packages and on closed vehicles containing bulk packagings; (3)
the reduction from 2,268 kg (5,000 lbs.) to 1,000 kg (2,205 lbs.) of
the maximum allowable weight of a mixed load of ``Table 2'' hazardous
materials for which the alternative DANGEROUS placard may be used; and
(4) requirements for marking the transport vehicle with the carrier's
telephone number, or to have the shipping paper and emergency response
information readily available on the transport vehicle, when that
vehicle is separated from its motive power and parked at a location
other than a consignee's, consignor's, or carrier's facility.
II. Summary of Regulatory Changes
In this final rule, RSPA is postponing for one year, until October
1, 1998, the effective date of the January 8, 1997 final rule. RSPA is
also postponing for an additional year, until October 1, 1999, the
compliance date for use of the new PIH labels for gases and certain
liquids that are materials poisonous by inhalation. The compliance date
for use of the new PIH placards remains October 1, 2001. RSPA is also
making other changes in response to the petitions for reconsideration
or to correct and clarify the January 8, 1997 final rule where
appropriate. This final rule clarifies the January 8, 1997 final rule
and makes certain corrections to carry out its intent. It imposes no
significant regulatory burden and, in many cases, relaxes provisions of
the January 8, 1997 final rule.
The preamble to the January 8, 1997 final rule included a table
summarizing the amendments to the HMR in that rule and the compliance
date for each. 62 FR 1224. That table is republished and revised below
to summarize the changes made in this rulemaking, as modified by this
document. The revised form of this table below corrects a typographical
error in the January 8, 1997 final rule, where the table incorrectly
listed October 1, 2001 as the date for compliance with the changes to
Secs. 172.302 and 173.9, concerning the FUMIGANT marking. In the
following table, ``revised'' means there is a change to the rule
published on January 8, 1997 (beyond postponement of the compliance
date).
----------------------------------------------------------------------------------------------------------------
Section Action Discussion Compliance date
----------------------------------------------------------------------------------------------------------------
Sec. 172.301...................... ID No. marking on New requirement; Oct. 1, 1998.
vehicle loaded with revised.
only one hazmat in
non-bulk packages at
one originating
facility.
Sec. 172.313...................... ID No. marking on New requirement; Oct. 1, 1998.
vehicle for a single revised.
PIH material with 1,000 kg in
non-bulk packages.
Sec. 172.328...................... ID No. marking display New requirement; Oct. 1, 1998.
on closed vehicle revised.
containing cargo
tanks.
Sec. 172.331...................... ID No. marking display Expansion of current Oct. 1, 1998.
on closed vehicle requirement
containing other bulk applicable to
packagings (e.g. portable tanks.
IBCs).
Secs. 172.416 & 172.429........... PIH labels for gases Replaces POISON label Oct. 1, 1999.
and certain liquids and POISON GAS label
that are materials design; revised.
poisonous by
inhalation.
[[Page 39399]]
Sec. 172.504(b)................... Specific placard Reduction of 2,268 kg Oct. 1, 1998.
required when 1,000 kg of one which the alternate
class of Table 2 DANGEROUS placard is
hazmat on a vehicle. permitted on mixed
loads.
Sec. 172.606(a)................... Carrier must instruct New requirement....... Oct. 1, 1998.
operator of motor
vehicle to contact
the company in the
event of a hazmat
incident.
Sec. 172.606(b)................... Requiring information New requirement; Oct. 1, 1998.
with parked (dropped) revised.
motor vehicle.
Secs. 172.302 & 173.9............. FUMIGANT marking, Expansion of existing Oct. 1, 1998.
applying to all modes. requirements and
adoption of
international design.
Sec. 172.502...................... Prohibited display of Expansion of existing Oct. 1, 2001.
extraneous requirements; revised.
information on
placard and in
placard holder.
Secs. 172.540 & 172.555........... PIH placards for gases Replaces POISON and Oct. 1, 2001.
and certain liquids POISON GAS placard
that are materials design; revised.
poisonous by
inhalation.
----------------------------------------------------------------------------------------------------------------
Any petition for reconsideration that is not granted in this final
rule is denied.
III. Editorial Changes and Responses to Petitions
A. Extension of Effective Date
Approximately half of the petitions for reconsideration objected to
RSPA's issuance of new labeling and placarding requirements for PIH
materials in advance of adoption of similar requirements by the United
Nations Committee of Experts. These requirements included a revised
POISON GAS label and placard for Division 2.3 materials and a new
POISON INHALATION HAZARD label and placard for Division 6.1 materials
in Hazard Zones A or B. (Unless the context indicates otherwise, the
terms ``PIH labels'' and ``PIH placards'' refer, respectively, to the
new labels and placards for materials in both Divisions 2.3 and 6.1.)
Except for the hazard class number (and the larger size of placards),
all of these new labels and placards are identical in format including,
when text is included, the words ``Inhalation Hazard.''
The Hazardous Materials Advisory Council stated that the United
States should not require the distinctive PIH labels and placards until
an international standard is developed and adopted. Compressed Gas
Association, Inc. (CGA) and the Chlorine Institute asked that the date
for mandatory use of the PIH labels be delayed until October 1, 2001,
when the new placards are required. They stated that inspection and
emergency response personnel would be confused when the old POISON GAS
placards (all white background with optional ``Poison Gas'' wording)
were on a vehicle containing cylinders with the revised POISON GAS
labels (black background of upper diamond and optional ``Inhalation
Hazard'' wording). These petitioners also stated that additional time
was needed to obtain and affix the new labels and conduct training;
according to CGA, cylinders are often out of their owners' control for
extended periods of time.
The Vessel Operators Hazardous Materials Association, Inc. asked
that the October 1, 2001 compliance date for use of the PIH placard be
made applicable to all shipments by all modes, on the ground that this
transition period should apply to all intermodal shipments that include
transportation by vessel. The National Welding Supply Association
(NWSA) and one of its members stated that the October 1, 2001
compliance date for use of the new POISON GAS placard would not provide
any relief because placing the identification number on the placard
seemed to be the only practical way of meeting the requirement in
Sec. 172.313 for marking the identification number on vehicles
containing more than 1,000 kg. of PIH materials. These petitioners
indicated that it would be impractical to install permanently-mounted
``flip-type'' placards now and then change to a new set in 2001. The
NWSA member asked that, if RSPA decided not to change the marking and
labeling requirements for PIH materials, the compliance date for the
identification marking and new POISON GAS label be extended by two
years until October 1, 1999.
Other petitioners requested that the date for voluntary compliance
with the new requirements concerning PIH shipments be postponed to
allow additional time for training. The Los Angeles Police Department
(LAPD) stated that the January 8, 1997 final rule allowed the removal
of the ``Inhalation Hazard'' marking from a packaging of PIH materials
as soon as February 11, 1997, if the packaging had the new PIH label or
placard, which, as noted by a LAPD officer, are not required to contain
the ``Inhalation Hazard'' wording. See Secs. 172.405(a), 172.519(b)(3).
LAPD asked that shippers not be allowed to remove the ``Inhalation
Hazard'' marking until the next printing of the North American
Emergency Response Guidebook, but that a delay of 18 months was the
``absolute minimum acceptable time for national responder awareness and
training.'' CGA submitted an additional letter in which it stated that
it supports LAPD's petition to allow sufficient time for responders to
become familiar with new labels, placards, and markings.
Another petitioner focused on the lowering, from 2,268 kg (5,000
lbs.) to 1,000 kg (2,205 lbs.), of the upper weight limit for the
alternative use of the DANGEROUS placard for mixed loads of hazardous
materials listed in Table 2 of Sec. 172.504(e). It stated that, because
shippers and their employees are familiar with the English system of
measurement, they will have difficulty remembering the ``odd number''
of 2,205 lbs. as the equivalent to 1,000 kg for the threshold at which
the DANGEROUS placard may not be used. On this ground, it requested a
delay until October 1, 2001, for compliance with the lowered 1,000 kg
threshold, to allow additional time for shippers ``to convert to SI
units'' and for carriers to train their employees.
Other petitioners asked that the effective date of the entire rule
be postponed. American Trucking Associations (ATA) stated that eight
months was not sufficient for training employees in the changes in the
January 8, 1997 final rule, and it recommended that RSPA delay
compliance for one year until October 1, 1998, to provide adequate time
for training and implementation.
After carefully considering these petitions, RSPA is postponing for
one year, until October 1, 1998, the effective date of the January 8,
1997 final rule. In a new Sec. 171.14(e), RSPA is also postponing for
an additional year, until
[[Page 39400]]
October 1, 1999, the compliance date for use of the new PIH labels.
RSPA plans to issue in 1999 a new edition of the North American
Emergency Response Guidebook, which would be available when the new PIH
labels and placards will be required.
These postponements will allow sufficient additional time for
shippers, carriers, and emergency response personnel to implement the
new requirements and train their employees. The postponement of the
compliance date for use of the new PIH label will also allow time for
the U.N. Committee of Experts on the Transport of Dangerous Goods to
consider the United States' proposals for international adoption of the
PIH marking, labeling and placarding requirements adopted in the
January 8, 1997 final rule.
The one-year postponement in the effective date (until October 1,
1998) applies to the amendment of Sec. 172.504(b), concerning the upper
weight limit for use of the alternative DANGEROUS placard. Beyond that,
RSPA is not extending the date for compliance with the reduction in the
maximum allowable weight (from 2,268 kg to 1,000 kg) of a mixed load of
Table 2 hazardous materials for which the alternative DANGEROUS placard
may not be used. The International System of Units (``SI'' or metric)
has been the HMR ``regulatory standard'' since October 1, 1991 (the
effective date of the final rule in Docket No. HM-181), Sec. 171.10(a),
and the postponement of the effective date of this change (until
October 1, 1998) should be sufficient time for training.
The October 1, 2001 compliance date is retained for use of the new
placards for PIH materials, but RSPA is adding a footnote to the
Placard Substitution Table in Sec. 171.14(b) to clarify that, for PIH
materials, until October 1, 2001, shippers by all modes have the
options of using placards that meet the requirements (1) in effect
prior to October 1, 1991 (the effective date of changes made in the
rulemaking under Docket No. HM-181), (2) adopted in the final rule in
HM-181, or (3) adopted in the January 8, 1997 final rule, as modified
in this document. (As discussed in the next section, the entries for
Division 6.1 materials in the Placard Substitution Table are also being
revised.)
RSPA does not believe it is necessary or appropriate to modify the
existing voluntary compliance date. The primary concern raised in this
regard is the possible removal of the ``Inhalation Hazard'' marking
when the new PIH label or placard is used. RSPA is addressing this
concern by revising Sec. 172.313(a) to allow removal of the
``Inhalation Hazard'' marking only when those same words appear on the
label or placard, as applicable.
RSPA also believes that, with the additional year for training
before the effective date of October 1, 1998, responders will not be
confused by small differences between placards on a transport vehicle
and labels on cylinders within the vehicle, inasmuch as the words
``Inhalation Hazard'' will be required on the cylinder or other
packaging (either as a marking or on the label). Some variations have
always existed between placards and labels, particularly in light of
the transitional provisions in Sec. 171.14(b) that have applied since
1991. Moreover, by providing until October 1, 1999, before use of the
new PIH labels is required, RSPA has reduced from four years to two
years the period when the PIH label is required before the PIH placard
must be used.
B. PIH Labels, Placards, and Marking
As published in the Federal Register, the graphics of the new PIH
labels and placards shown in the January 8, 1997 rule were inaccurate.
The shape of the upper diamond (containing a skull and cross-bones on a
black background) is square-on-point. Moreover, it is necessary to
increase the distance between the lower point of the upper diamond and
the horizontal center line of the placard to allow for display of
identification numbers, under the option allowed in Sec. 172.332(a).
These errors are corrected in this document. See Secs. 172.416,
172.429, 172.540, and 172.555.
One petitioner and several persons who telephoned brought to RSPA's
attention that certain liquids in Division 6.1, Packing Group II, had
been omitted from the PIH materials referenced in the Placard
Substitution Table in Sec. 171.14(b), the Label Substitution Table in
Sec. 172.101(g), the table of label designations in Sec. 172.400(b),
and placarding Table 1 in Sec. 172.504(e). Although these materials do
not meet the classification criteria in the UN Recommendations for an
inhalation hazard, they are designated as PIH materials in the HMR
because they are poisonous by inhalation. Examples of these materials
are ``Bromoacetone, 6.1, UN 1569, PG II,'' and ``Phenyl Isocyanate,
6.1, UN 2488, PG II.''
The four tables in Secs. 171.14(b), 172.101(g), 172.400(b), and
172.504(e) are being revised to specify the POISON INHALATION HAZARD
label and placard for all materials in Division 6.1 (inhalation hazard,
Zone A or B) and to specify the POISON label and placard for materials
in Division 6.1 (PG I or II, other than Zone A or B inhalation hazard).
As already stated, Sec. 172.313(a) is being revised to specify that
the ``Inhalation Hazard'' marking may be omitted only when those words
appear on the PIH label or placard, as applicable.
RSPA is also revising Sec. 172.313(c) in response to petitions
which expressed concern about possible miscommunication of actual risk
to emergency responders resulting from too many identification numbers
because of the requirement to mark a transport vehicle or freight
container with identification numbers of PIH material in non-bulk
packagings which total more than 1,000 kg (2,205 lbs.) aggregate gross
weight. As revised in this document, Sec. 172.313(c) requires marking
the identification number on a transport vehicle or freight container
that contains more than 1,000 kg aggregate gross weight of PIH
materials in Hazard Zone A or B having the same proper shipping name
and identification number, in non-bulk packagings, that are loaded at a
single loading facility. RSPA is denying those petitions that asked for
a complete elimination of this marking requirement.
In the January 8, 1997 final rule, RSPA revised
Secs. 171.11(d)(9)(iii), 171.12(b)(8)(iii), and 171.12a(b)(5)(iii) to
replace references to the POISON label and placard with references to
the new POISON INHALATION HAZARD label and placard. However, RSPA
inadvertently failed to add a reference in Sec. 172.402(e)(1),
concerning a Class 1 material that also meets the definition for a
material poisonous by inhalation in Division 6.1. RSPA is amending
Sec. 172.402(e)(1) to add a reference to the new PIH label as a
secondary label. This is simply an editorial change and implements the
purpose of this rulemaking to replace the POISON label and placard with
the new POISON INHALATION PLACARD for Division 6.1 materials in Hazard
Zones A and B that are poisonous by inhalation.
For the reasons set forth in the preamble to the January 8, 1997
final rule, RSPA is denying petitions that opposed adoption of the PIH
labels and placards. Since 1985, RSPA has worked toward enhancing
safety in the transportation of PIH materials by establishing a
complete system of transportation controls for these materials,
including an improved communication of their presence. As a
continuation of that process, RSPA proposed in the August 15, 1994
Notice of Proposed Rulemaking (NPRM), 59 FR 41848, a distinctive label
and placard to provide a distinctive warning to
[[Page 39401]]
emergency responders of the unique hazardous (extreme toxicity, high
volatility) of PIH gases and liquids. This proposal responded to a
petition for rulemaking previously submitted by ATA and a graphic
design recommended by a LAPD officer. Earlier this year, RSPA proposed
the new PIH labels and placards to the U.N. Committee of Experts as an
international standard. See the discussion in the preamble to the
January 8, 1997 final rule, 62 FR 1219.
A majority of the commenters to the NPRM supported adoption of the
distinctive PIH labels and placards, although many also expressed
support for maintaining harmonization with the U.N. Recommendations.
Over many years, RSPA has adopted classification, hazard communication
and packaging requirements recommended by the U.N. Committee of
Experts, but RSPA believes that, in this matter, the United States
should not necessarily wait for an international standard to be
established. However, the postponement of the compliance dates until
October 1, 1999, for use of the PIH labels, and until October 1, 2001,
for use of the PIH placards, provides time for the U.N. Committee of
Experts to consider and take steps toward adoption of RSPA's proposal.
The desirable goal of international harmonization does not outweigh the
important safety benefits to be gained by adopting a distinctive label
and placard for PIH materials.
One petitioner asked RSPA to add an editorial note to revised
Sec. 177.841(e)(1) to clarify that a package bearing a POISON GAS label
may be transported in the same motor vehicle with material marked or
known to be foodstuffs, feed, or other edible material, without meeting
the additional precautions specified in (e)(1)(i) or (ii). RSPA denies
this petition because it believes that the present language of
Sec. 177.841(e)(1) is clear. As revised in the January 8, 1997 final
rule, only Division 6.1 materials labeled POISON or POISON INHALATION
HAZARD are subject to this restriction in Sec. 177.841(e)(1), while the
next paragraph, (e)(2), (which prohibits certain materials in the
driver's compartment) explicitly covers these materials and also
Division 2.3 materials required to have a POISON GAS label.
C. Other Identification Number Marking Requirements
1. Large quantities of non-bulk materials. Several petitioners
asked RSPA to eliminate or modify the identification number marking
requirement in Sec. 172.301(a)(3) for large quantities of non-bulk
packages in a transport vehicle. They expressed concern that an
increase in identification number displays will cause substantial
material and labor costs to industry and create confusion among
emergency responders. The petitioners stated that if the requirement is
retained, it should be restricted to vehicles fully loaded with a
single hazardous material. In addition, several petitioners requested
that RSPA except Class 1 materials from the requirement for the
identification number display because of safety concerns, and because
the North American Emergency Response Guidebook is not cross-referenced
by the identification number, but is designed to provide only generic
group information for explosives.
In response to these petitions, RSPA is revising Sec. 172.301(a)(3)
to apply to a transport vehicle or freight container that is loaded at
one loading facility with 4,000 kg (8,820 lbs.) or more of hazardous
materials in non-bulk packagings, when all the hazardous materials have
the same proper shipping name and identification number. Class 1 and 7
materials are excepted from this requirement. These revisions provide
greater consistency with the international standards based on the U.N.
Recommendations and the Canadian Regulations on the Transport of
Dangerous Goods, without adversely affecting safety.
By applying this identification number marking to transport
vehicles and freight containers loaded at one loading facility only
with hazardous materials having the same proper shipping name and
identification number, in non-bulk packagings, RSPA believes it has
adequately addressed the petitioners' concerns with regard to an
increase in the number of placards on any single vehicle or container.
The requirement in Sec. 172.301(a)(3) for marking the
identification number on a transport vehicle or freight container
loaded at one loading facility with more than 4,000 kg of one hazardous
material in non-bulk packagings is separate from the marking
requirement in Sec. 172.313(c) applicable to PIH materials. The
combined potential of these two requirements, as modified in this final
rule, is less than estimated by a petitioner who provided an example
involving a single load of eight different hazardous materials. The
addition of Sec. 172.313(c) will require an identification marking to
indicate the presence of more than 1,000 kg of a PIH material;
otherwise, the revisions to the HMR in this rulemaking will not require
any additional placards or markings for the particular combination of
hazardous materials in the example provided by the petitioner.
RSPA denies the petitions to totally eliminate the identification
number marking requirement for large quantities of certain hazardous
materials in non-bulk packages. Emergency responders should be provided
as much immediate specific information as practicable regarding the
contents of transport vehicles and freight containers. RSPA is also
denying ATA's petition to amend or remove Sec. 172.334(d). That section
states that a placard bearing an identification number may not be used
to satisfy the placarding requirements in subpart F of Part 172
``unless it is the correct identification number for all hazardous
materials of the same class in the transport vehicle or freight
container on which it is displayed.'' When different hazardous
materials within a hazard class are present in a transport vehicle or
freight container, and the identification number of one of the
materials must be displayed (e.g., a PIH material), the transport
vehicle must bear placards for that hazard class without an
identification number plus either (1) a separate set of placards with
the identification number or (2) the separate orange panels or white
square-on-point configurations as authorized by Sec. 172.332(a).
2. Closed transport vehicles or freight containers carrying cargo
tanks. One petitioner requested that RSPA further clarify that the
marking requirements in Secs. 172.302(a) and 172.328(a)(3) do not
require duplicative identification number markings on both the cargo
tank and the vehicle, when the markings on the cargo tank would not
normally be visible during transportation. The petitioner provided
sketches and examples of instances where, in his opinion, no additional
information would be communicated by marking the tank portion of the
cargo tank motor vehicle, such as when the cargo tank is permanently
installed on or within an enclosed vehicle, or when multiple cargo
tanks mounted on an open vehicle are so close together that it would be
difficult to see the markings on the adjacent sides of cargo tanks.
In response to this petition, RSPA is modifying Sec. 172.328(c) to
specify that when a cargo tank is permanently installed within an
enclosed cargo body of a transport vehicle or freight container, on the
outside of which identification numbers are marked, the identification
number marking required on the cargo tank by Sec. 172.302(a) need only
be displayed on each side and end of the cargo tank that is visible
when it is accessed. At this time, RSPA does not consider it feasible
to specify a
[[Page 39402]]
minimum distance between cargo tanks, when mounted on an open vehicle
and visible during transportation, that would warrant an exception from
identification number marking as also suggested by this petitioner.
3. Identification number marking for organic peroxides. In the
January 8, 1997 final rule, RSPA added materials in Division ``5.2
(Organic peroxide, Type B, liquid or solid, temperature controlled,''
to Table 1 in Sec. 172.504(e), so that placarding is required for any
amount. LAPD petitioned RSPA to also require the display of
identification numbers for these materials. It stated that the change
to the placarding table created a ``double meaning'' for the ORGANIC
PEROXIDE placard, and the emergency responder will not know whether the
organic peroxide material within a vehicle is temperature controlled or
not.
RSPA is denying LAPD's petition because this change was not
proposed in the NPRM, and it is beyond of the scope of this rulemaking.
Because this suggestion appears to have merit, RSPA will consider this
petition in a future rulemaking.
D. Other Placarding Requirements
1. DANGEROUS placard. In the January 8, 1997 final rule, RSPA
changed Sec. 172.504(b) by lowering from 2,268 kg (5,000 lbs.) to 1,000
kg (2,205 lbs.) the quantity of one class or division of a hazardous
material loaded at one facility for which a specific placard is
required. This reduced the upper weight limit for use of the DANGEROUS
placard (as an alternative to the specific hazard class placard) for a
mixed load of hazardous materials listed in Table 2 in Sec. 172.504(e).
A late-filed petition from a chemical company opposed this
reduction in the upper weight limit for use of the alternative
DANGEROUS placard. The petitioner stated that the change would result
in the use of many additional different placards and would be a
financial burden in terms of time spent by company personnel sorting
through the numerous shipping papers required on a multi-drop load to
determine what combination of placards is required on the outside of
the trailer.
For many years, emergency response organizations have expressed
concerns that the DANGEROUS placard does not provide sufficient
information to identify hazardous materials in a transport vehicle and
support elimination of this placard altogether. RSPA rejected total
elimination of the DANGEROUS placard, but lowered the upper weight
limit for use of the alternative DANGEROUS placard in order to improve
safety communication by requiring increased display of specific hazard
class and division warnings. This action is responsive to concerns
expressed in a 1993 report of the National Academy of Sciences (NAS),
under Section 25 of HMTUSA, on methods to improve the existing system
of placarding vehicles transporting hazardous materials, thereby
providing more effective information to facilitate response to
incidents involving hazardous materials in transportation in commerce.
The permitted use of the alternative DANGEROUS placard under
Sec. 172.504(b) is governed by the amount of one category of hazardous
material loaded ``at one loading facility.'' The use of different
placards for a mixed load of hazardous materials requires only that the
placard for each class of hazardous materials be removed when the last
package of that class is delivered, similar to the requirement that the
DANGEROUS placard must be removed when the last packaging of a mixed
load of hazardous materials is delivered (even if non-hazardous
materials remain to be delivered at further stops).
2. Prohibited Placarding (safety slogans). In the January 8, 1997
final rule, RSPA amended Sec. 172.502(a)(2) to prohibit any ``sign,
advertisement, slogan (such as ``Drive Safely'') or device that, by its
color, design, shape or content, could be confused with any placard * *
*'' RSPA also specified that this prohibition does not apply until
October 1, 2001, to a safety sign or slogan which was permanently
marked on a transport vehicle, bulk packaging, or freight container on
or before October 1, 1996.
RSPA is changing the latter date, in Sec. 172.502(b)(3), to August
21, 1997 to prevent the unintended effect of the final rule with
respect to a safety sign or slogan that may have been permanently
marked on a transport vehicle, bulk packaging, or freight container
between October 1, 1996 and issuance of the January 8, 1997 final rule.
Without this revision, a person who had installed a safety sign on his
or her vehicles after October 1, 1996, would be in violation on the
effective date of the January 8, 1997 final rule (now postponed until
October 1, 1998), while a person who had installed such a safety sign
before October 1, 1996 would have three additional years, until October
1, 2001, to remove it. This change will carry out RSPA's intent that
there be a reasonable cut-off date after which these slogan displays
could no longer be newly installed on vehicles.
E. Carrier Information Contact Requirements
In Sec. 172.606(b) (2) and (3), RSPA added alternative requirements
for marking the carrier's telephone number, or having the shipping
paper and emergency response information readily available, on a
highway transport vehicle that is separated from its motive power and
parked at a location other than a consignee's, consignor's, or
carrier's facility. As stated in the preamble to the January 8, 1997
final rule, these requirements are intended to enable emergency
responders to obtain more complete information about hazardous
materials on an unattended motor vehicle.
An individual petitioner asked RSPA to modify these requirements to
provide that (1) the telephone number marked on the vehicle must be
visible from 50 feet, and (2) that the shipping paper and emergency
response information must be available on the front of the transport
vehicle.
ATA and the National Tank Truck Carriers, Inc. (NTTC) petitioned
RSPA to eliminate (or not adopt) these two alternative requirements.
These petitioners stated they believed there was a risk to emergency
responders who would approach a trailer involved in a hazardous
materials incident to obtain a shipping paper and emergency response
information.
NTTC discussed application of this requirement to ``spotting''
cargo tank trailers containing a residue of a hazardous material, which
is a common occurrence at cargo tank cleaning facilities. NTTC stated
that, outside of normal working hours, it would be unlikely that an
emergency responder could reach the carrier, and that the carrier would
be unlikely to have information about the particular commodity and its
hazards. NTTC also stated that, in the event of an incident involving
an unattended vehicle carrying hazardous materials, emergency
responders should not be encouraged to approach the vehicle to look for
paperwork.
ATA also stated that if RSPA retains these alternative
requirements, an additional one year extension, until October 1, 1998,
should be provided to provide sufficient time for compliance with the
requirements of Sec. 172.606 (b)(2) and (b)(3).
As already discussed above, RSPA has extended the effective date of
this rule until October 1, 1998. RSPA is also adding a new
Sec. 172.606(c) to clarify that the requirements in paragraphs (b)(2)
and (b)(3) do not apply to an unattended motor vehicle separated from
its motive
[[Page 39403]]
power that is marked with each identification number of the hazardous
materials loaded therein, on an orange panel, a placard, or a plain
white square-on-point configuration, and the markings or placards are
visible on the outside of the motor vehicle.
RSPA is not eliminating the information requirements in
Sec. 172.606(b) for an unattended motor vehicle disconnected from its
motive power. RSPA continues to believe that there must be a method of
identifying hazardous materials in an unattended transport vehicle
disconnected from its motive power when identification number markings
are not displayed on the exterior of the motor vehicle. The presence of
a carrier's telephone number marked on a motor vehicle, or a copy of a
shipping paper and emergency response information attached to a motor
vehicle would provide access to such information. In regard to the
concerns of NTTC regarding ``spotting'' at cargo tank cleaning
facilities, the requirements prescribed in Sec. 172.606 (b)(1) and
(b)(2) are intended to apply to an unattended motor vehicle separated
from its motive power when there is no indication on the outside of the
motor vehicle as to the contents of the motor vehicle. Bulk packagings,
such as a cargo tank, containing a hazardous material or its residue
are required to be marked and placarded as prescribed under the HMR.
At this time, RSPA does not consider it necessary to specify a
minimum distance from which the carrier's telephone number in
Sec. 172.606(b)(2) must be visible, or the location for shipping papers
and emergency response information under the option in
Sec. 172.606(b)(3).
IV. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is considered a non-significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget.
The regulatory evaluation prepared for the August 15, 1994 NPRM was
examined and modified for the January 8, 1997 final rule. Both of these
documents are available for review in the public docket. This final
rule makes relatively minor, incremental changes in the regulations
concerning placarding and other means of communicating the hazards of
materials in transportation. In most cases, the changes clarify and
relax provisions of the January 8, 1997 final rule. The other changes
that carry out the intent of the January 8, 1997 final rule, such as
the inclusion of certain Division 6.1 materials within those for which
the new PIH labels and placards are required, will result in only
minimal costs to offerors of these materials for transportation in
commerce. Accordingly, no additional regulatory evaluation was
performed.
B. Executive Order 12612
The January 8, 1997, final rule and this final rule were analyzed
in accordance with the principles and criteria contained in Executive
Order 12612 (``Federalism''). The Federal law expressly preempts State,
local, and Indian tribe requirements applicable to the transportation
of hazardous material that cover certain subjects and are not
substantively the same as Federal requirements. 49 U.S.C. 5125(b)(1).
These subjects are:
(A) the designation, description, and classification of hazardous
material.
(B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(C) the preparation, execution, and use of shipping documents
related to hazardous material and requirements respecting the number,
content, and placement of those documents.
(D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
(E) the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a package or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule preempts State, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' (see 49 CFR 107.202(d)) as the Federal
requirements. RSPA lacks discretion in this area, and preparation of a
federalism assessment is not warranted.
Federal law 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 has determined that the
effective date of Federal preemption for these requirements will be
October 1, 1998.
C. Regulatory Flexibility Act
This final rule, which responds to petitions for reconsideration
and agency review, makes editorial and technical corrections, provides
clarification of the regulations, and relaxes certain requirements.
Although this final rule applies to all shippers and carriers of
hazardous materials, some of whom are small entities, the requirements
contained herein will not result in significant economic impacts.
Therefore, I certify that this final rule will not have a significant
economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
The information collection requirements in 49 CFR Parts 172 through
177 pertaining to shipping papers have been approved under OMB approval
number 2137-0035. This final rule does not increase any burden to
provide information. Under the Paperwork Reduction Act of 1995, no
person is required to respond to a collection of information unless it
displays a valid OMB control number.
The January 8, 1997 final rule amended Sec. 173.9 to require that a
shipping paper contain hazard warning information concerning the
fumigant for an international shipment. This information is a current
requirement for international shipments by vessel and insignificantly
increases the amount of burden imposed by this collection. RSPA
believes that this change in burden is not sufficient to warrant
revision of the currently approved information collection.
E. Regulation 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 172
Hazardous materials transportation, Hazardous waste, Labeling,
Marking, Packaging and containers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 49 CFR Chapter I is amended as
follows:
[[Page 39404]]
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.
2. In Sec. 171.14, the section heading and introductory text are
revised, paragraph (b) is revised, and a new paragraph (e) is added to
read as follows:
Sec. 171.14 Transitional provisions for implementing certain
requirements.
General. The purpose of the provisions of this section is to
provide an orderly transition to certain new requirements so as to
minimize any burdens associated with them.
* * * * *
(b) Transitional placarding provisions. Until October 1, 2001,
placards which conform to specifications for placards in effect on
September 30, 1991, or placards specified in the December 21, 1990
final rule may be used, for highway transportation only, in place of
the placards specified in subpart F of part 172 of this subchapter, in
accordance with the following table:
Placard Substitution Table
----------------------------------------------------------------------------------------------------------------
Hazard class or division No. Current placard name Old (Sept. 30, 1991) placard name
----------------------------------------------------------------------------------------------------------------
Division 1.1............................. Explosives 1.1.............. Explosives A.
Division 1.2............................. Explosives 1.2.............. Explosives A.
Division 1.3............................. Explosives 1.3.............. Explosives B.
Division 1.4............................. Explosives 1.4.............. Dangerous.
Division 1.5............................. Explosives 1.5.............. Blasting agents.
Division 1.6............................. Explosives 1.6.............. Dangerous.
Division 2.1............................. Flammable gas............... Flammable gas.
Division 2.2............................. Nonflammable gas............ Nonflammable gas.
Division 2.3\1\.......................... Poison gas.................. Poison gas.
Class 3.................................. Flammable................... Flammable.
Combustible liquid....................... Combustible................. Combustible.
Division 4.1............................. Flammable solid............. Flammable solid.
Division 4.2............................. Spontaneously combustible... Flammable solid.
Division 4.3............................. Dangerous when wet.......... Flammable solid W.
Division 5.1............................. Oxidizer.................... Oxidizer.
Division 5.2............................. Organic peroxide............ Organic peroxide.
Division 6.1, (inhalation hazard, Zone A Poison inhalation hazard.... Poison.
or B)\1\.
Division 6.1, PG I and II (other than Posion...................... Poison.
Zone A or B inhalation hazard).
Division 6.1, PG III..................... Keep away from food......... (none required).
Class 7.................................. Radioactive................. Radioactive.
Class 8.................................. Corrosive................... Corrosive.
Class 9.................................. Class 9..................... (none required).
----------------------------------------------------------------------------------------------------------------
\1\ For materials poisonous by inhalation, by all modes of transportation, until October 1, 2001, placards may
be used that conform to specifications for placards (1) in effect on September 30, 1991, (2) specified in the
December 21, 1990 final rule, or (3) specified in the July 22, 1997 final rule.
* * * * *
(e) Notwithstanding Secs. 172.416 and 172.429 of this subchapter
specified in the July 22, 1997 final rule, when labels are required by
subpart E of part 172 of this subchapter to be affixed to a material
poisonous by inhalation, labels that conform to the requirements of
this subchapter in effect on September 30, 1997, may be used on
packagings offered for transportation or transported until October 1,
1999.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
3. The authority citation for Part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
4. In Sec. 172.101(g), as amended at 62 FR 1227 effective October
1, 1998, the entries for label codes 6.1 in the Label Substitution
Table are revised to read as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
(g) * * *
Label Substitution Table
------------------------------------------------------------------------
Label code Label name
------------------------------------------------------------------------
* * * * *
6.1 (inhalation hazard, Zone A or B)...... Poison Inhalation Hazard.
6.1 (I or II, other than Zone A or B Poison.
inhalation hazard) \2\.
6.1 (III) \2\............................. Keep Away From Food.
* * * * *
------------------------------------------------------------------------
* * * * *
\2\ The packing group for a material is indicated in column 5 of the
table.
* * * * *
5. In Sec. 172.301, paragraph (a)(3), as added at 62 FR 1227
effective October 1, 1998, is revised to read as follows:
Sec. 172.301 General marking requirements for non-bulk packagings.
(a) * * *
(3) Large quantities of hazardous materials in non-bulk packages. A
transport vehicle or freight container that is loaded at one loading
facility with 4,000 kg (8,820 pounds) or more aggregate gross weight of
hazardous materials in non-bulk packagings, when all the hazardous
materials loaded in the transport vehicle or freight container have the
same proper shipping name and identification number, must be marked
with the identification number specified for the hazardous material in
the Sec. 172.101 Table on each side and each end as specified in
Secs. 172.332 or 172.336. The requirement in this paragraph (a)(3) does
not apply to:
(i) Class 1, Class 7, or ORM-D materials; or
[[Page 39405]]
(ii) Limited quantities or small quantities of hazardous materials
(see Sec. 173.4 of this subchapter).
* * * * *
6. Section 172.313, as added at 62 FR 1228 effective October 1,
1998, is amended by adding introductory text and by revising paragraphs
(a) and (c) to read as follows:
Sec. 172.313 Poisonous hazardous materials.
In addition to any other markings required by this subpart:
(a) A material poisonous by inhalation (see Sec. 171.8 of this
subchapter) shall be marked ``Inhalation Hazard'' in association with
the required labels or placards, as appropriate, and shipping name when
required. The marking must be on two opposing sides of a bulk
packaging. (See Sec. 172.302(b) of this subpart for size of markings on
bulk packages.) When the words ``Inhalation Hazard'' appear on the
label, as prescribed in Secs. 172.416 and 172.429, or placard, as
prescribed in Secs. 172.540 and 172.555, the ``Inhalation Hazard''
marking is not required on the package.
* * * * *
(c) A transport vehicle or freight container loaded at one loading
facility with more than 1,000 kg (2,205 pounds) aggregate gross weight
of non-bulk packages containing materials poisonous by inhalation in
Hazard Zone A and B having the same proper shipping name and
identification number shall be marked as required by Sec. 172.332 with
the identification number specified for the material, in the
Sec. 172.101 Table, on each side and each end of the transport vehicle
or freight container.
7. In Sec. 172.328, paragraph (a)(3), as added at 62 FR 1228
effective October 1, 1998, is revised to read as follows:
Sec. 172.328 Cargo tanks.
(a) * * *
(3) For a cargo tank transported on or in a transport vehicle or
freight container, if the identification number marking on the cargo
tank required by Sec. 172.302(a) would not normally be visible during
transportation--
(i) The transport vehicle or freight container must be marked as
required by Sec. 172.332 on each side and each end with the
identification number specified for the material in the Sec. 172.101
Table; and
(ii) When the cargo tank is permanently installed within an
enclosed cargo body of the transport vehicle or freight container, the
identification number marking required by Sec. 172.302(a) need only be
displayed on each side and end of a cargo tank that is visible when the
cargo tank is accessed.
* * * * *
8. In Sec. 172.400(b), the table, as revised at 62 FR 1228
effective October 1, 1998, is amended by revising the entries for
Division 6.1 materials to read as follows:
Sec. 172.400 General labeling requirements.
* * * * *
(b) * * *
------------------------------------------------------------------------
Label
design or
Hazard class or division Label name section
reference
------------------------------------------------------------------------
* * * *
* * *
6.1 (inhalation hazard, Zone A or POISON INHALATION HAZARD 172.429
B).
6.1 (PG I or II, other than Zone POISON.................. 172.430
A or B inhalation hazard).
6.1 (PG III)..................... KEEP AWAY FROM FOOD..... 172.431
* * * *
* * *
------------------------------------------------------------------------
9. In Section 172.402, paragraph (e)(1) is revised to read as
follows:
Sec. 172.402 Additional labeling requirements.
* * * * *
(e) * * *
(1) Division 6.1, Packing Groups I or II, shall be labeled POISON
or POISON INHALATION HAZARD, as appropriate.
* * * * *
10. Section 172.416 is revised to read as follows:
Sec. 172.416 POISON GAS label.
(a) Except for size and color, the POISON GAS label must be as
follows:
BILLING CODE 4910-60-P
[[Page 39406]]
[GRAPHIC] [TIFF OMITTED] TR22JY97.022
(b) In addition to complying with Sec. 172.407, the background on
the POISON GAS label and the symbol must be white. The background of
the upper diamond must be black and the lower point of the upper
diamond must be 14 mm (0.54 inches) above the horizontal center line.
11. Section 172.429, as added at 62 FR 1229 effective October 1,
1998, is revised to read as follows:
Sec. 172.429 POISON INHALATION HAZARD label.
(a) Except for size and color, the POISON INHALATION HAZARD label
must be as follows:
[[Page 39407]]
[GRAPHIC] [TIFF OMITTED] TR22JY97.023
BILLLING CODE 4910-60-C
(b) In addition to complying with Sec. 172.407, the background on
the POISON INHALATION HAZARD label and the symbol must be white. The
background of the upper diamond must be black and the lower point of
the upper diamond must be 14 mm (0.54 inches) above the horizontal
center line.
12. In Sec. 172.502, paragraph (b)(3), as added at 62 FR 1230
effective October 1, 1998, is revised to read as follows:
Sec. 172.502 Prohibited and permissive placarding.
* * * * *
(b) * * *
(3) The restrictions in paragraph (a)(2) of this section do not
apply until October 1, 2001 to a safety sign or safety slogan (e.g.,
``Drive Safely'' or ``Drive Carefully''), which was permanently marked
on a transport vehicle, bulk packaging, or freight container on or
before August 21, 1997.
* * * * *
13. In Sec. 172.504(e), as revised at 62 FR 1230 effective October
1, 1998, the entries for Division 6.1 materials in Tables 1 and 2 are
revised to read as follows:
Sec. 172.504 General placarding requirements.
* * * * *
(e) * * *
Table 1
------------------------------------------------------------------------
Placard
Category of material (Hazard design
class or division number and Placard name section
additional description, as reference
appropriate) (Sec. )
------------------------------------------------------------------------
* * * *
* * *
6.1 (inhalation hazard, Zone A or POISON INHALATION HAZARD 172.555
B).
* * * *
* * *
------------------------------------------------------------------------
* * * * *
[[Page 39408]]
Table 2
------------------------------------------------------------------------
Placard
Category of material (Hazard design
class or division number and Placard name section
additional description, as reference
appropriate) (Sec. )
------------------------------------------------------------------------
* * * *
* * *
6.1 (PG I or II, other than Zone POISON.................. 172.554
A or B inhalation hazard).
6.1 (PG III)..................... KEEP AWAY FROM FOOD..... 172.553
* * * *
* * *
------------------------------------------------------------------------
* * * * *
14. Section 172.540 is revised to read as follows:
Sec. 172.540 POISON GAS placard.
(a) Except for size and color, the POISON GAS placard must be as
follows:
BILLING CODE 4910-60-P
[GRAPHIC] [TIFF OMITTED] TR22JY97.024
(b) In addition to complying with Sec. 172.519, the background on
the POISON GAS placard and the symbol must be white. The background of
the upper diamond must be black and the lower point of the upper
diamond must be 65 mm (2\5/8\ inches) above the horizontal center line.
The text, class number, and inner border must be black.
[[Page 39409]]
15. Section 172.555, as added at 62 FR 1233 effective October 1,
1998, is revised to read as follows:
Sec. 172.555 POISON INHALATION HAZARD placard.
(a) Except for size and color, the POISON INHALATION HAZARD placard
must be as follows:
[GRAPHIC] [TIFF OMITTED] TR22JY97.025
BILLING CODE 4910-60-C
(b) In addition to complying with Sec. 172.519, the background on
the POISON INHALATION HAZARD placard and the symbol must be white. The
background of the upper diamond must be black and the lower point of
the upper diamond must be 65 mm (2\5/8\ inches) above the horizontal
center line. The text, class number, and inner border must be black.
16. In Sec. 172.606, as added at 62 FR 1234 effective October 1,
1998, paragraph (c) is added to read as follows:
Sec. 172.606 Carrier information contact.
* * * * *
(c) The requirements specified in paragraph (b) of this section do
not apply to an unattended motor vehicle separated from its motive
power when the motor vehicle is marked on an orange panel, a placard,
or a plain white square-on-point configuration with the identification
number of each hazardous material loaded therein, and the marking or
placard is visible on the outside of the motor vehicle.
Issued in Washington, DC, on July 11, 1997, under authority
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 97-18995 Filed 7-21-97; 8:45 am]
BILLING CODE 4910-60-P
