98-8436. Improvements to Hazardous Materials Identification Systems; Editorial Revisions and Responses to Petitions for Reconsideration and Appeal

  • [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]
    
    
    
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    Part IX
    
    
    
    
    
    Department of Transportation
    
    
    
    
    
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    Research and Special Programs Administration
    
    
    
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    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.
    
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        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.
    
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        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
    
    
    

Document Information

Published:
04/01/1998
Department:
Research and Special Programs Administration
Entry Type:
Rule
Action:
Final rule; technical amendments and responses to petitions for reconsideration and an appeal.
Document Number:
98-8436
Pages:
16070-16076 (7 pages)
Docket Numbers:
Docket No. HM-206
RINs:
2137-AB75: Improvements to Hazardous Materials Identification Systems
RIN Links:
https://www.federalregister.gov/regulations/2137-AB75/improvements-to-hazardous-materials-identification-systems
PDF File:
98-8436.pdf
CFR: (7)
49 CFR 172.313(c)
49 CFR 172.602(c)(2)
49 CFR 172.101
49 CFR 172.301
49 CFR 172.313
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