[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Rules and Regulations]
[Pages 16070-16076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8436]
[[Page 16069]]
_______________________________________________________________________
Part IX
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 172
Improvements to Hazardous Materials Identification Systems; Editorial
Revisions and Responses to Petitions for Reconsideration and Appeal;
Final Rule
Federal Register/Vol. 63, No. 62/Wednesday, April 1, 1998/Rules and
Regulations
[[Page 16070]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 172
[Docket No. HM-206]
RIN 2137-AB75
Improvements to Hazardous Materials Identification Systems;
Editorial Revisions and Responses to Petitions for Reconsideration and
Appeal
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule; technical amendments and responses to petitions for
reconsideration and an appeal.
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SUMMARY: In this final rule, RSPA is making changes to a final rule
published on January 8, 1997, and modified in a July 22, 1997 final
rule, which amended the Hazardous Materials Regulations to better
identify hazardous materials in transportation. The primary changes
include: clarifying requirements for display of identification numbers
for large quantity shipments of hazardous materials; revising
requirements for display of identification numbers for non-bulk
packages of hazardous materials that are poisonous by inhalation in
Hazard Zone A or B; and providing alternative methods for marking the
carrier's telephone number on the exterior of a highway transport
vehicle containing hazardous materials that is disconnected from its
motive power and not marked with an identification number. Other minor
technical and editorial changes are also made. In making improvements
to the hazardous materials identification systems in the HMR, RSPA
intends to improve safety for transportation workers, emergency
responders, and the public.
In this final rule, RSPA is responding to four petitions for
reconsideration of the July 22, 1997 final rule and one appeal of an
RSPA denial of part of a petition for reconsideration of the January 8,
1997 final rule. Generally, this final rule clarifies and revises
certain requirements in partial response to the petitions and the
appeal and denies other parts of the petitions and the appeal.
DATES: Effective date: This final rule is effective October 1, 1998.
The effective date for the final rules published under Docket HM-206 on
January 8, 1997 (62 FR 1217) and July 22, 1997 (62 FR 39398) remains
October 1, 1998.
Compliance dates: Voluntary compliance with the January 8, 1997 and
the July 22, 1997 final rules have been authorized beginning February
11, 1997 and July 22, 1997, respectively. Voluntary compliance with
this final rule is authorized beginning May 1, 1998.
FOR FURTHER INFORMATION CONTACT: Helen L. Engrum or Paul L. 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, D.C. 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background and Summary
On January 8, 1997, RSPA published a final rule in the Federal
Register (62 FR 1217) 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 transportation in commerce. The January 8, 1997 final
rule was issued in response to Section 25 of the Hazardous Materials
Transportation Uniform Safety Act of 1990 (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. Based on the
merit of petitions and other revisions RSPA determined to be necessary
to correct or clarify the January 8, 1997 rule, a final rule was
published in the Federal Register (62 FR 39398), on July 22, 1997,
correcting the January 8, 1997 rule and responding to petitions for
reconsideration.
Following publication of the July 22, 1997 amended final rule, RSPA
received four petitions for reconsideration, an appeal under 49 CFR
106.38 of RSPA's denial of part of a petition for reconsideration of
the January 8, 1997 final rule, and a separate inquiry identifying an
error in the January 8, 1997 final rule that was not corrected in the
July 22, 1997 final rule. In response to these, RSPA is revising four
sections of the HMR as follows:
(1) In Sec. 172.301(a)(3), concerning large quantities of hazardous
materials in non-bulk packages, a revision is made to further clarify
that a vehicle or container containing only a single hazardous material
and no other material, hazardous or otherwise, in non-bulk packages
loaded at one loading facility must be marked with the identification
number.
(2) In Sec. 172.313(c), concerning identification number marking of
a material poisonous by inhalation (PIH) in Hazard Zone A or B in non-
bulk packages, the phrase ``with more than 1,000 kg (2,205 lbs.)'' is
changed to ``with 1,000 kg (2,205 lbs.) or more'' for consistency in
approach with Sec. 172.301(a)(3); the words ``Hazard Zone A and B'' are
changed to ``Hazard Zone A or B''; and a provision is added clarifying
the requirement for identification number marking display for different
PIH materials in a vehicle or container.
(3) In Sec. 172.504, Footnote 1 to placarding table 1 is revised to
correctly state requirements applicable to exclusive use shipments of
low specific activity and surface contaminated radioactive materials
transported in accordance with Sec. 173.427(b)(3) and (c).
(4) Section 172.606(b)(2) is revised to clarify methods for marking
the carrier's telephone number on a highway transport vehicle
containing hazardous materials that is disconnected from its motive
power and not marked with an identification number.
In all other respects, RSPA is denying the petitions for
reconsideration of the July 22, 1997 final rule and the appeal of
RSPA's prior denial of a petition for reconsideration of the January 8,
1997 final rule. Denied are requests to: (1) increase from 1,000 kg to
4,000 kg the threshold quantity for identification number marking of
PIH materials; (2) adopt additional provisions concerning
responsibility for providing, affixing and maintaining identification
number markings; (3) except placarded transport vehicles (without
identification number markings) from carrier information contact
requirements applicable to unattended motor vehicles; and (4) allow
slogans or other similar communications (e.g., ``Drive Safely'') to
remain on placard-type displays or in placard holders until they wear
out and are replaced.
II. Discussion of Editorial Changes and Responses to Petitions for
Reconsideration and an Appeal Under 49 CFR 106.38
A. Identification Number Marking Display for Large Quantities of
Hazardous Materials in Non-bulk Packages
In the January 8, 1997 final rule, a new requirement was adopted
requiring display of identification numbers for large quantities of
hazardous materials in non-bulk packages having a single identification
number and having an aggregate gross weight of 4,000 kg or more in a
transport vehicle or freight container. In the final rule, RSPA decided
to avoid use of the economic
[[Page 16071]]
terms ``truckload'' and ``carload'' for the application of the
identification number marking requirements to large quantities of
hazardous materials in non-bulk packages in a vehicle or container. In
addition, RSPA chose the 4,000 kg threshold to preclude application of
the requirement to small vehicles, such as pick-up trucks and small
vans. In the July 22, 1997 final rule, RSPA revised 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 or more of hazardous materials in
non-bulk packages, when all the hazardous materials have the same
proper shipping name and identification number.
The Hazardous Materials Advisory Council (HMAC) and Roadway
Express, Inc., petitioned RSPA for further clarification on how the
requirement is to be applied, particularly during pick-up and delivery
of less-than-truckload (LTL) freight, and asked for guidance in this
area. They also recommended that RSPA amend the regulations to address
responsibility for providing, affixing, and maintaining the
identification number marking displays. The petitioners believe
responsibility should be separately set forth in Sec. 172.301 in order
to eliminate confusion or misunderstanding between persons who offer
hazardous materials for transportation and carriers when the situation
demands that a transport vehicle be properly marked for transportation.
The petitioners said that the assignment of responsibility is obscured
in a paragraph on general applicability (Sec. 172.300) rather than as
clearly stated in a similar requirement in Sec. 172.506 dealing with
providing placards.
The petitioners also asked for guidance on the applicability of the
identification number marking requirements for non-bulk packages in a
transport vehicle or freight container carrying LTL freight. They
indicated that different conclusions might be reached, depending on
whether there were different hazardous materials that meet or exceed
the threshold quantity (4,000 kg) loaded in the vehicle or container at
the same or subsequent loading point.
RSPA believes the changes in the requirements for identification
number marking made in the July 22,1997 final rule responded to many of
the problems identified by the petitioners. RSPA modified the rule to
apply only when all the hazardous materials loaded at one loading
facility have the same proper shipping name and identification number.
However, RSPA is revising Sec. 172.301(a)(3) to further clarify that
the requirement applies only when a vehicle contains a single hazardous
material loaded at one facility, and no other materials, hazardous or
otherwise. This clarification makes the requirement more consistent
with provisions in the UN Recommendations for placing identification
numbers on ``packaged dangerous goods of a single commodity which
constitute a full load for the transport unit.''
In an effort to provide guidance and facilitate further
clarification and understanding of this requirement, the following
examples indicate whether identification numbers are required for
shipments of non-bulk packages at one loading facility:
(No--Means no identification number required.)
Examples
(1) 4000 kg of ``Acetone, UN 1090'' and no other material (hazardous
or non-hazardous)--Yes
(2) Less than 4000 kg of only a single HAZMAT--No
(3) 3,000 kg of ``Acetone, UN 1090'' and 2,000 kg of ``Paint, UN
1263''--No
(4) 5,000 kg of ``Acetone, UN 1090,'' 5,000 kg of ``Paint, UN 1263''
and 5,000 kg of ``Ethanol, UN 1170''--No
(5) 5,000 kg or more of ``Acetone, UN 1090'' and 1,000 kg of Paint, UN
1263'' in Limited Quantities, Small Quantities, or Consumer
Commodities--No
(6) 5,000 kg or more of ``Acetone, UN 1090'' and 10,000 kg of
automobile parts--No
RSPA believes that the requirements in Sec. 172.300 adequately
prescribe applicability and responsibility for the marking requirements
in the HMR. That is, each person who offers a hazardous material for
transportation must mark each package, freight container or transport
vehicle containing the hazardous material as required in Subpart D of
Part 172. When assigned the function to display the identification
number marking, as in a situation which comes under carrier control
(e.g., when a LTL freight carrier consolidates at one loading facility
non-bulk packages of hazardous materials requiring identification
number marking), the carrier bears responsibility for providing and
affixing the identification number marking. For these reasons, RSPA is
denying the petitions for an additional section that would essentially
duplicate the requirements already set forth in Sec. 172.300.
B. Identification Number Marking Display for Certain Quantities of
Packaged PIH Materials
In the January 8, 1997 final rule, RSPA specified 1,000 kg as the
threshold quantity for display of identification number markings for a
PIH material in non-bulk packages in a transport vehicle or freight
container. In the July 22, 1997 final rule corrections and responses to
petitions for reconsideration, RSPA revised the identification number
marking requirement to limit it to PIH materials in Hazard Zone A or B
having the same proper shipping name and identification number. RSPA
also included an exception from the currently required ``Inhalation
Hazard'' marking provision when the words ``Inhalation Hazard'' appear
on the PIH label or placard.
In their petitions, the Association of Waste Hazardous Materials
Transporters (AWHMT), HMAC, and Roadway Express recommended that RSPA
clarify, for consistency, the phrases ``more than'' as used in
Sec. 172.313(c) and ``or more'' as used in Sec. 172.301(a)(3), that
triggers compliance when the threshold quantity is met or exceeded for
display of identification number markings. HMAC and Roadway Express
recommended both sections read ``more than,'' while AWHMT took no
position on which phrase would be more appropriate.
The Compressed Gas Association (CGA) submitted an appeal of RSPA's
denial of their petition in the July 22, 1997 final rule, under the
provisions of 49 CFR 106.38, and expressed its concern regarding
multiple markings. CGA said:
RSPA did respond to our previous comment on potentially
misinterpreting markings for different hazard zone markings by
restricting this to only Hazard Zone A and B. However, RSPA did not
address CGA's concern about multiple markings for poisonous by
inhalation materials causing confusion among the emergency
responders.
CGA suggested that its concern be addressed by revising
Sec. 172.313(c) to be consistent with the wording in Sec. 172.301(a)(3)
that an identification number would be required only when all the
Hazard Zone A or B materials in non-bulk packages loaded in the vehicle
or container have the same proper shipping name and identification
number. CGA indicated, by limiting application of the identification
number marking for certain materials poisonous by inhalation, that such
a revision would address their concerns relative to multiple markings
causing confusion among emergency responders.
[[Page 16072]]
HMAC petitioned RSPA to revise Sec. 172.313(c) and recommended that
the identification number marking threshold, 1,000 kg for PIH materials
in Hazard Zone A or B having the same proper shipping name and
identification number in non-bulk packages, be raised to 4,000 kg, the
same threshold for non-PIH hazardous materials in non-bulk packages.
HMAC indicated that a different threshold for PIH materials would
impose additional training problems for persons offering or
transporting these materials.
CGA also had concerns regarding voluntary compliance. It said
voluntary compliance as authorized in HM-206 creates three points of
confusion, that is: (1) Emergency responders are unfamiliar with the
new PIH label; (2) potentially, several different identification
numbers create confusion about which hazardous material might be
causing an emergency situation; and (3) because the transition
provisions in Sec. 171.14 allow labels and placards to be used
interchangeably, the labels and placards may not be the same. CGA
believes the issue of voluntary compliance is still a safety issue
which needs to be addressed, and because of the possibility of
confusion suggested that early training, before compliance enforcement,
is necessary in this case.
CGA and ECOLAB Center generally expressed their concerns for
continued harmonization with international standards, as it relates to
the improvements to the hazardous materials identification system (HM-
206). CGA stated that while they believe RSPA recognizes the importance
of harmonization, as indicated by the statements in the preamble
referring to the UN Committee of Experts, it is not clear to them what
recourse it will have in the event RSPA's recommendations are not
acceptable to the UN. It said, ``* * * it appears we will require two
sets of placarding and labeling.'' The ECOLAB Center had similar
concerns and stated:
* * * From the perspective of a multinational company, every
divergence of hazmat regulations between the U.S. and the rest of
the world causes confusion and possibility of errors. For several
years, harmonization has been the aim and has been used to justify
hazmat labeling, packaging, and labeling [sic] changes that have
caused us significant expense. Now it appears that the U.S. will
make its own choice and hope the rest of the world follows. If this
is the beginning of a trend for the U.S., we request that you
reconsider this policy, and remain open to voluntarily extending or
eliminating the compliance date for these changes as the situation
develops.
RSPA agrees with the petitioners that the threshold quantities in
Sec. 172.313(c) and Sec. 172.301(a)(3) should be phrased in a
consistent manner. The intent is to trigger compliance with the
threshold quantity for identification number marking display under both
provisions at the levels specified for each ``or more.'' Therefore, a
revision is made in, Sec. 172.313(c) to replace the phrase ``more
than'' with ``or more'' for materials poisonous by inhalation. An
editorial revision is also made in Sec. 172.313, in paragraph (c), to
change the phrase ``Hazard Zone A and B'' to correctly read ``Hazard
Zone A or B.''
To reduce the burden of the identification number marking
requirement and in response to CGA's concerns that problems may still
exist for emergency responders in determining appropriate protective
actions to be taken when multiple identification number markings are
displayed for PIH materials, RSPA is revising Sec. 172.313(c) to
specify when a vehicle or freight container is carrying different PIH
materials for which identification number marking is required, display
of the identification number is only required for the PIH material in
the hazard zone posing the greatest risk (i.e., Zone A takes precedence
over Zone B), or if all the same hazard zone, the identification number
must be displayed for the PIH material having the greatest aggregate
gross weight. The following examples indicate whether the
identification number is required for shipments of PIH materials in
non-bulk packages at one loading facility:
Examples
(No--means no identification number required.)
Examples
(1) Less than 1,000 kg of PIH material in Hazard Zone A--No
(2) 1,000 kg of ``Methyl isocyanate, UN 2480, Zone A'' and 4,000 kg of
``Acetone, UN 1090''--Yes, for Methyl isocyanate, UN 2480, because it
is a PIH material in Zone A
(3) 1,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' 1,000 kg of
``Allyl alcohol, UN 1098, Zone B,'' and 1,000 kg of ``Methyl mercaptan,
UN 1064, Zone C''--Yes, for Methyl isocyanate, UN 2480, because it is
the PIH material with the highest hazard zone
(4) 2,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' and 1,000 kg
of ``Acrolein, inhibited, UN 1092, Zone A''--Yes, for Methyl
isocyanate, UN 2480, because it is the PIH material in the greatest
quantity
(5) 3,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' 2,000 kg of
``Acrolein, inhibited, UN 1092, Zone A,'' and 1,000 kg of ``Allyl
alcohol, UN 1098, Zone B''--Yes, for Methyl isocyanate, UN 2480,
because it is the PIH material both in the highest hazard zone and in
the greatest quantity
RSPA believes that along with the effectiveness of the new PIH
labels and placards (required for even small amounts of a PIH
material), identification numbers ensure quick recognition of certain
types and quantities of a PIH material in non-bulk packages in a
vehicle or container. Emergency responders with immediate access
(through the use of the DOT Emergency Response Guidebook or other
emergency response information carried during transportation) to
information on the potential hazards and health and safety risks
associated with PIH materials will be better able to determine
protective and mitigation actions at incidents involving these high
risk materials.
RSPA does not agree with HMAC that the threshold for PIH (1,000 kg
or more) and non-PIH materials (4,000 kg or more) should be the same.
RSPA set the threshold quantity lower for PIH materials because of the
significantly greater risk associated with these materials as opposed
to most other hazardous materials. Because of the toxicity and
volatility of a PIH material, a release would be immediately life
threatening over a large area. The choice of protective options for a
given situation depends on many factors. Whereas evacuation may be the
best option (in some cases), in-place protection may be the best course
in others. RSPA enhanced the regulations because they were inadequate
in providing vital information to communicate the presence of a PIH
material in non-bulk packages in a vehicle or container that, if
released, may potentially pose severe and immediate risks to the
public, transportation workers, and emergency response personnel.
RSPA agrees with HMAC that the new requirements may necessitate
additional training for persons offering or transporting hazardous
materials, particularly relative to the new requirements addressing
poisonous materials which pose an acute inhalation toxicity. For
compliance purposes, persons offering or transporting hazardous
materials need to continually update their training to include the new
requirements.
[[Page 16073]]
In regard to CGA's safety concerns on the issue of voluntary
compliance, RSPA believes that voluntary compliance periods have
historically helped industry in achieving compliance without
compromising the safety of emergency responders. RSPA routinely
provides voluntary or permissive compliance time frames, such as those
provided for in Sec. 171.14, before mandatory compliance is necessary.
In fact, RSPA is often requested to extend mandatory compliance dates
and various transitional provisions, while continuing to allow for
permissive voluntary compliance, such as provided for in Docket HM-181
addressing changes to hazard communication requirements, such as
marking, labeling, and placarding. The process of providing for
voluntary compliance prior to mandatory compliance has worked well and
allows industry to incrementally phase-in new requirements in an
orderly manner so that new requirements are not implemented on a
specific date without adequate time to implement new procedures or
training programs.
RSPA also acknowledges that additional training is necessary to
implement and understand the new requirements, particularly during the
transition period. RSPA also recognizes the need to help emergency
responders to more quickly recognize and identify the specific hazards
of these types of materials. RSPA has taken steps to promote better
understanding of the new requirements. For example, information is
available on the new requirements through the RSPA Internet Web site
(http://hazmat.dot.gov). Also, RSPA is revising current training
materials, such as the widely distributed DOT ``Chart 10,'' a guide to
help industry and emergency responders comprehend and apply the
requirements for marking, labeling, placarding and emergency response
information. Informational brochures are being developed to address the
new requirements for improving the system of identifying and
communicating the hazards associated with hazardous materials in
transportation.
RSPA is aware of the concerns of petitioners regarding continued
harmonization of the domestic regulations with the international
standards, and harmonization has been one of our objectives for many
years. RSPA evaluated the petitions to the January 8, 1997 and the July
22, 1997 final rules which requested that RSPA eliminate the new PIH
label and placard, or not adopt them domestically until the labels and
placards had been adopted for use in the international community. The
petitions were denied. To date, no new information has been submitted
to RSPA that would warrant reconsideration of the denial of the
petitions on this issue. To allow the affected parties more time to
come into compliance and to give the U.N. Committee of Experts more
time to consider adoption of the new PIH labels and placards, in the
July 22, 1997 final rule, RSPA changed the effective date for this
portion of the rule from October 1, 1997 to October 1, 1998. Also,
mandatory use of the new PIH labels and placards in domestic
transportation is not required until October 1, 1999 for labels and
October 1, 2001 for placards.
Over the years, RSPA has adopted classification, hazard
communication and packaging requirements recommended by the U.N.
Committee of Experts in order to facilitate international commerce.
However, in the past, RSPA has not waited for development of an
international standard before addressing pressing safety concerns such
as establishing criteria for defining and classifying materials that
are poisonous by inhalation, such as Acrolein, Methyl Isocyanate, and
Allyl Alcohol. (Final Rule under Docket HM-196; 50 FR 41092; October,
8, 1985) Similarly, RSPA does not intend to wait for development of an
international standard to gain the safety benefits deriving from a
distinctive label and placard for PIH materials that may pose a
substantial risk if released during transportation.
Harmonization does not always mean exact adoption of international
standards without any deviation. In some instances, deviations from
international standards are necessary to meet legislated requirements,
such as the domestic regulatory requirements for hazardous wastes and
hazardous substances. In other instances, the industry has often asked
for and been provided with exceptions applicable to domestic
transportation. The HMR often contains domestic exceptions that are
supported by industry. For example, RSPA has provided certain domestic
placarding exceptions that are not provided for by international
standards, such as: 1) use of a DANGEROUS placard for mixed loads of
Table 2 materials; 2) a domestic exception for the mandatory use of the
Class 9 placard; and 3) exception from placarding small loads of Table
2 materials in non-bulk packagings (i.e., 1,001 pounds or less does not
require placarding). RSPA will continue to work toward harmonization;
however, as in the past, RSPA will continue to provide domestic
exceptions when warranted and specify additional requirements when
warranted.
C. RADIOACTIVE PLACARD Footnote to Placarding Table 1
RSPA received an inquiry regarding the footnote in Sec. 172.504(e),
placarding Table 1. In the January 8, 1997 final rule, footnote ``1''
regarding placarding for exclusive use shipments of low specific
activity radioactive materials contains an incorrect section reference.
In this final rule, footnote ``1'' is revised to read: ``1 RADIOACTIVE
placard also is required for exclusive use shipments of low specific
activity material and surface contaminated objects transported in
accordance with Sec. 173.427(b)(3) or (c).''
D. Carrier Emergency Information Contact Number for an Unattended Motor
Vehicle Disconnected From Its Motive Power
In the January 8, 1997 final rule, RSPA added alternatives for
compliance with the carrier emergency information contact number
requirements for an unattended motor vehicle disconnected from its
motive power and parked at a location other than a consignee's,
consignor's, or carrier's facility. In that situation, the carrier must
mark its telephone number on the motor vehicle, place shipping papers
and emergency response information on the vehicle or have the shipping
paper and emergency response information available as required in
Sec. 172.602(c)(2). In the July 22, 1997 final rule, RSPA provided an
exception from requirements when the motor vehicle is marked with the
identification number of each hazardous material loaded inside the
vehicle, and the identification number marking is visible on the
outside of the motor vehicle.
Roadway Express had concerns with the methods available for marking
a carrier's telephone number on a vehicle disconnected from its motive
power when motor carriers use rental and ``pool'' equipment for varying
periods of time in order to meet the demands of each person who offers
a hazardous material for transportation. It stated that it is
impractical to expect carriers to mark a telephone number on a piece of
equipment that may be in the carrier's control for only a few days, and
suggests revising the requirements in Sec. 172.606(b)(2) to allow
affixing or attaching a device, such as a plastic tag, directly to the
brake hose or ``gladhand'' connection.
HMAC and Roadway Express petitioned RSPA to expand this exception
for a marked vehicle to
[[Page 16074]]
include ``all placarded or marked trailers, semi-trailers, or freight
containers.'' Roadway Express stated that on the average, LTL carriers
consolidate 30 individual shipments on a transport vehicle and that
when non-bulk packages of hazardous materials comprise even a small
percentage of the total load, the variety of materials contained in one
consignment may make marking individual identification numbers
burdensome and impractical. HMAC stated:
While documentation on trailers or freight containers that are not
otherwise placarded or marked may be required, those which already
display placards or identification number markings shouldn't also be
required to have telephone numbers or shipping papers. Therefore,
HMAC recommends that the exception granted in Sec. 172.606(c) be
expanded to include ``all placarded or marked trailers, semi-
trailers, or freight containers.''
HMAC believes that the regulations for display of a carrier's
telephone number or the availability of shipping papers on certain
trailers and freight containers removed from motive power are not
responsive to the problems encountered by the LTL segment of the
transportation industry. HMAC stated that the new requirements will
make it more difficult for motor carriers to use rental trailers to
conduct business. It said, for example, one particular motor carrier
used nearly 6,000 rental trailers in one month in order to accommodate
the demands of each person who offers a hazardous material for
transportation, and thus display of the motor carrier's telephone
number is not possible on such trailers, and rental trailers normally
do not have a pouch or pocket to store shipping papers.
Roadway Express also said that because shipping papers and
emergency response information documents are also a means of complying
with Sec. 172.606(b)(2) and must be readily available on the transport
vehicle, document maintenance and security provisions, as it relates to
proprietary information (such as the name and address of both the
persons who offer a hazardous material for transportation and the
carrier's customer), should be considered.
In this final rule, RSPA is editorially revising the introductory
text of Sec. 172.606 and paragraph (a) and is revising paragraph (b)
for clarity and in response to petitioners. RSPA notes that the
provision adopted in Sec. 172.606(b)(2) in the January 8, 1997 final
rule, allows a carrier to display only the carrier's telephone number
and does not require disclosure of information which the carrier may
consider proprietary. The carrier information contact requirement
applies to a trailer or freight container-on-chassis dropped at a
public place such as a truck stop or motel, but does not apply when a
vehicle is dropped at a facility covered by the provisions of
Sec. 172.602(c)(2), such as a carrier's facility or a marine terminal.
RSPA notes under Sec. 172.602(c)(2), a facility may be operated by
someone other than a carrier, consignor, or consignee. In this final
rule, RSPA is revising the introductory language in paragraph (b) of
Sec. 172.606 to clarify this. RSPA is removing the provision in
paragraph (b)(1) because that requirement already applies to facilities
under Sec. 172.602(c)(2) and is not applicable outside such a facility.
Also, in response to these petitions, RSPA is revising Sec. 172.606(b),
to clarify that the carrier's telephone number may be marked on the
exterior of the vehicle, or attached to the vehicle on a label, tag or
sign at the brake hose or electrical connection.
RSPA reminds motor carriers of the requirement in the Federal Motor
Carrier Safety Regulations, 49 CFR 397.5, which requires, with limited
exceptions, that a motor vehicle required to be placarded must be
attended by its driver at all times when the motor vehicle is located
on a public street or shoulder of a public highway. Based on this
requirement, and taking into account longstanding provisions which
apply to facilities under Sec. 172.602(c)(2), RSPA believes the carrier
information contact requirement will not pose an unreasonable burden on
motor carriers.
RSPA does not agree with the petitioners in regard to expanding the
exception in Sec. 172.606(c) to include any placarded motor vehicle
disconnected from its motive power. A placard (e.g., FLAMMABLE, POISON)
provides basic identification regarding the hazard of a material, but
it does not communicate specific information regarding the contents of
a vehicle as do shipping papers or identification number markings. The
methods currently prescribed in Sec. 172.606(b) facilitate access to
more detailed response, information for the hazardous material in such
a vehicle.
RSPA acknowledges Roadway Express' concern relative to security
provisions as it relates to information on shipping papers that a
carrier considers ``proprietary,'' such as the name and address of its
customers. RSPA provided a number of options for compliance, as
follows: (1) A carrier's telephone number marked or attached to a motor
vehicle, (2) a copy of a shipping paper and emergency response
information attached to a motor vehicle, or (3) an identification
number marking displayed on the exterior of a motor vehicle. None of
these options require disclosure of the name and address of consignors
or consignees. RSPA encourages the trucking industry to develop uniform
methods for displaying information required by Sec. 172.606.
E. Prohibited Placarding (Slogans)
In the January 8, 1997 final rule, RSPA revised Sec. 172.502 to
prohibit extraneous information (e.g., ``Drive Safely'') on placard-
type displays or in placard holders. As modified in the July 22, 1997
final rule, RSPA has specified that this prohibition does not apply
until October 1, 2001, to a slogan which was permanently marked on a
transport vehicle, bulk packaging, or freight container on or before
August 21, 1997. This should provide sufficient notice and prevent the
unintended application of an immediate prohibition to a 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.
ECOLAB Center petitioned RSPA to allow an indefinite period until
placards must be replaced in order to remove extraneous information or
slogans (e.g., ``Drive Safely''). ECOLAB believes that prohibiting such
slogans on placards and in placard holders is not an enhancement of
safety, and said:
Due to the lowering of the weight for which a class placard is
required, and the requirement to placard for a large quantity of
non-bulk materials, the number of occasions when a safety slogan
placard may be displayed will be dramatically reduced. Would not a
reasonable compromise be to let existing placard sets be used until
retirement or replacement?
RSPA denies the petition. RSPA believes it has provided a
reasonable period for industry to comply with the requirement to
remove, cover, or obliterate slogans or other similar communications on
placard-type displays or in placard holders on transport vehicles and
freight containers. With the extension of the overall effective date of
the rule, October 1, 1998, and the compliance date for mandatory
removal of these signs, October 1, 2001, affected businesses are
provided sufficient time to make conversion.
III. 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
[[Page 16075]]
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. The July 22,
1997, final rule made relatively minor, incremental changes in the
regulations concerning placarding and other means of communicating the
hazards of materials in transportation, and in most cases clarifies and
relaxes provisions of the January 8, 1997 final rule. This final rule
denies an appeal under 49 CFR 106.38, and several petitions for
reconsideration of certain aspects of the July 22, 1997 final rule, and
makes several editorial revisions. Accordingly, no additional
regulatory evaluation was performed.
B. Executive Order 12612
The January 8, 1997 and the July 22, 1997 final rules 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 an appeal under 49 CFR 106.38, makes several editorial revisions
for clarification of the regulations. Although this final rule applies
to each person who offers a hazardous material for transportation and
all 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 2137-0034. This final rule makes only editorial corrections and
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.
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 in 49 CFR Part 172
Education, 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:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for Part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 172.301, as amended at 62 FR 39404, effective October 1,
1998, paragraph (a)(3) is revised to read as follows:
Sec. 172.301 General marking requirements for non-bulk packages.
(a) * * *
(3) Large quantities of a single hazardous material in non-bulk
packages. A transport vehicle or freight container containing only a
single hazardous material in non-bulk packages must be marked, on each
side and each end as specified in the Secs. 172.332 or 172.336, with
the identification number specified for the hazardous material in the
Sec. 172.101 Table, subject to the following provisions and
limitations:
(i) Each package is marked with the same proper shipping name and
identification number;
(ii) The aggregate gross weight of the hazardous material is 4,000
kg (8,820 pounds) or more;
(iii) All of the hazardous material is loaded at one loading
facility;
(iv) The transport vehicle or freight container contains no other
material, hazardous or otherwise; and
(v) The identification number marking requirement of this paragraph
(a)(3) does not apply to Class 1, Class 7, or to non-bulk packagings
for which identification numbers are not required.
* * * * *
3. In Sec. 172.313, as amended at 62 FR 39405, effective October 1,
1998, paragraph (c) is revised to read as follows:
Sec. 172.313 Poisonous hazardous materials.
* * * * *
(c) A transport vehicle or freight container containing a material
poisonous by inhalation in non-bulk packages shall be marked, on each
side and each end as specified in Sec. 172.332 or Sec. 172.336, with
the identification number specified for the hazardous material in the
Sec. 172.101 Table, subject to the following provisions and
limitations:
(1) The material is in Hazard Zone A or B;
(2) The transport vehicle or freight container is loaded at one
facility with
[[Page 16076]]
1,000 kg (2,205 pounds) or more aggregate gross weight of the material
in non-bulk packages marked with the same proper shipping name and
identification number; and
(3) If the transport vehicle or freight container contains more
than one material meeting the provisions of this paragraph (c), it
shall be marked with the identification number for one material,
determined as follows:
(i) For different materials in the same hazard zone, with the
identification number of the material having the greatest aggregate
gross weight; and
(ii) For different materials in both Hazard Zones A and B, with the
identification number for the Hazard Zone A material.
Sec. 172.504 [Amended]
4. In Sec. 172.504(e), as amended at 62 FR 39407, effective October
1, 1998, footnote 1 in Table 1 is amended to read as follows:
``\1\RADIOACTIVE placard also required for exclusive use shipments
of low specific activity material and surface contaminated objects
transported in accordance with Sec. 173.427(b)(3) or (c) of this
subchapter.''
5. In Sec. 172.606, as added at 52 FR 1234 and amended at 62 FR
39409, effective October 1, 1998, the introductory text is removed, and
paragraphs (a) and (b) are revised to read as follows:
Sec. 172.606 Carrier information contact.
(a) Each carrier who transports or accepts for transportation a
hazardous material for which a shipping paper is required shall
instruct the operator of a motor vehicle, train, aircraft, or vessel to
contact the carrier (e.g., by telephone or mobile radio) in the event
of an incident involving the hazardous material.
(b) For transportation by highway, if a transport vehicle, (e.g., a
semi-trailer or freight container-on-chassis) contains hazardous
material for which a shipping paper is required and the vehicle is
separated from its motive power and parked at a location other than a
facility operated by the consignor or consignee or a facility (e.g., a
carrier's terminal or a marine terminal) subject to the provisions of
Sec. 172.602(c)(2), the carrier shall--
(1) Mark the transport vehicle with the telephone number of the
motor carrier on the front exterior near the brake hose and electrical
connections or on a label, tag, or sign attached to the vehicle at the
brake hose or electrical connection; or
(2) Have the shipping paper and emergency response information
readily available on the transport vehicle.
* * * * *
Issued in Washington, D.C. on March 26, 1998 under authority
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Acting Administrator.
[FR Doc. 98-8436 Filed 3-31-98; 8:45 am]
BILLING CODE 4910-60-P
