[Federal Register Volume 64, Number 179 (Thursday, September 16, 1999)]
[Rules and Regulations]
[Pages 50260-50263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24176]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 171
[RSPA-99-6195 (Docket No. HM-206D)]
RIN 2137-AD37
Hazardous Materials: Limited Extension of Requirements for
Labeling Materials Poisonous by Inhalation (PIH)
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Interim final rule.
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SUMMARY: RSPA is providing a limited exception, until October 1, 2001,
from requirements to place the new POISON INHALATION HAZARD or POISON
GAS labels on packages that are intended for transportation in
international commerce. The exception applies only to Division 2.3
materials and Division 6.1 liquids in Hazard Zone A or B that are
loaded into a freight container or closed transport vehicle that is
placarded and marked with the identification number, as currently
required for those materials. This interim final rule is intended to
prevent delays and frustrated shipments for these hazardous materials
when transported by vessel under the provisions of the International
Maritime Dangerous Goods Code (IMDG Code), or by motor vehicle or rail
car to or from Canada.
DATES: Effective dates: This final rule is effective on October 1,
1999.
Comment date: Comments must be received November 15, 1999.
ADDRESSES: Written comments: Address written comments to the Dockets
Management System, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW, Washington, DC 20590-0001. Comments should identify
the docket number RSPA-99-6195 (HM-206D) and should be submitted in two
copies. Persons wishing to receive confirmation of receipt of their
comments should include a self-addressed stamped postcard.
Dockets Management System is located on the Plaza Level of the
Nassif Building at the Department of Transportation at the above
address. Public dockets may be reviewed between the hours of 10 a.m.
and 5 p.m., Monday through Friday, excluding Federal holidays. In
addition, the public can review comments by accessing the Docket
Management System through the DOT home page at http://dms.dot.gov.
Comments may also be submitted to the docket electronically by logging
onto the Dockets Management System website at http://dms.dot.gov. Click
on ``Help & Information'' to obtain instructions for filing the
document electronically. In every case, the comment should refer to the
Docket number ``RSPA-99-6195''. Comments may also be submitted by fax
by calling (202) 366-3012.
FOR FURTHER INFORMATION CONTACT: Helen L. Engrum, Office of Hazardous
Materials Standards, (202) 366-8553, Research and Special Programs
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
In the final rules adopted under Docket No. HM-206, RSPA specified
requirements for display of: (1) Identification number marking on a
transport vehicle or freight container that is loaded at one loading
facility with more than 1,000 kg (2,205 pounds) of materials poisonous
by inhalation (PIH), on and after October 1, 1998; (2) new labels to be
affixed to non-bulk packagings containing PIH materials, on and after
October 1, 1999; and (3) new placards to be displayed on transport
vehicles and freight containers containing PIH materials, on and after
October 1, 2001. RSPA also provided that, if the words ``INHALATION
HAZARD'' appear on the new PIH label or placard, those words need not
also be marked on the package (See 49 CFR172.313). (Final rules, 62 FR
1217 (January 8, 1997), 62 FR 39398 (July 22, 1997), 63 FR 16070 (April
1, 1998).) These requirements were adopted in response to a mandate in
section 25 of the Hazardous Materials Transportation Uniform Safety Act
of 1990 (Pub. L. 101-615) that methods of improving placarding be
considered including, inter alia, identification of appropriate
emergency response procedures through symbols on placards and methods
to make placards more visible.
In adopting the PIH marking, label, and placard requirements, RSPA
discussed the extremely hazardous nature of these materials and its
belief that ``the existing POISON and POISON GAS label and placard are
not adequate in communicating the inhalation hazard of these
materials.'' 63 FR at 1218. RSPA also referred to its efforts since
1985 ``toward enhancing safety in the transportation of PIH materials
by establishing a complete system of transportation controls for these
materials, including an improved communication of their presence.'' 62
FR at 39400. As noted in the final rule, a majority of the persons
submitting comments on this issue ``supported adoption of the
distinctive PIH labels and placards,'' although a number of commenters
urged RSPA to delay implementation until the United Nations Committee
of Experts on the Transport of Dangerous Goods (UN Committee) had also
adopted the new PIH label and placard. This matter is pending before
the UN Committee.
II. Petition for Rulemaking
On June 17, 1999, the Hazardous Materials Advisory Council (HMAC)
filed a petition for rulemaking (P-1385) to delay implementation of the
new PIH labels adopted under Docket HM-206 until the UN Committee
recommends adoption of these requirements. HMAC suggested an
implementation date of no sooner than October 1, 2001 to coincide with
the effective date for PIH placards and to allow the UN Committee more
time to discuss this issue. HMAC stated:
By introducing PIH labels that have not been accepted by the UN
Committee, the unintended consequence may well be to cause confusion
with international shipments of these materials, thereby undermining
their safe transport. Packages of PIH material being imported into
the US and labeled in accordance with the IMDG Code by sea mode will
not be in compliance with the new US labeling requirement. Shippers
will be forced to re-label these packages at port areas where
provision to accomplish this is scarce and the possibility for
errors and mishandling increase.
HMAC also stated there are major questions regarding the
acceptability of the new labels in other countries. HMAC said that re-
labeling may be required to make the packages comply with other
regional or national regulations, and that such a situation will not
enhance safety, which is the intent of introducing the new label.
According to HMAC, a Canadian member indicated that lack of
international coordination may cause serious problems with compliance
and that members outside of the U.S. have questioned the U.S.
commitment to worldwide harmonization of dangerous goods transport
regulation. HMAC also raised the issue of inconsistency with the intent
of Title IV of the Trade Agreements Act of 1979.
III. RSPA Response to Petition for Rulemaking
The HMR provide for a nationwide system of communication of the
presence of hazardous materials which includes shipping papers,
marking, labeling, placarding, and emergency response information.
These requirements are designed to provide
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fire and emergency response personnel, the public, and transport
workers with information in the event of transportation incidents
involving hazardous materials. In responding to incidents involving
hazardous materials, emergency response personnel must first identify
the specific chemical hazards facing them before approaching the
incident site and attempting remedial action. An inappropriate response
to an incident involving inadequately identified hazardous materials
can significantly endanger individuals, the surrounding community, and
the environment.
The unique design of the PIH labels and placards substantially
improves the identification of PIH materials during transportation. It
is important that there be distinctive warnings that will lead to
appropriate response actions for these high risk materials. The risk
posed by PIH materials such as acrolein (inhibited), allyl alcohol,
methyl isocyanate, or acetone cyanohydrin (stabilized), is
substantially greater than the risk posed by other poisonous materials
such as benzonitrile, chloroform, ethyl bromide, or tetrachloroethane.
Yet prior to implementation of the Docket HM-206 requirements, all of
these materials were identified by display of the same labels and
placards.
RSPA understands that PIH labels and placards are not yet formally
recognized outside the jurisdiction of the U.S., and that the UN
Committee has yet to act upon the merits of our proposal on this
subject. We also recognize that we should strive for harmonious hazard
communication requirements, when appropriate. However, differences have
been recognized as necessary and appropriate in a number of instances.
For example, there are domestic exceptions from placarding for Class 9
materials, and for less than 1,001 pounds of certain materials. In
addition, the HMR provide a domestic exception which permits use of
DANGEROUS placards in place of placards for certain classes of
hazardous materials loaded in transport vehicles or freight containers.
As these exceptions are recognized and accepted as being appropriate,
RSPA is certain that the improved communication of hazard for high risk
PIH materials also is necessary and appropriate.
Much of the information and issues raised in HMAC's petition have
already been considered and addressed during the rulemaking proceeding
in Docket HM-206. RSPA believes HMAC has not presented justification
for either its request to postpone implementation of the requirement
for PIH labels until the UN Committee has had the opportunity to judge
the merits of the proposal, or for its recommendations that
implementation of the requirements be deferred until October 1, 2001
for both domestic and international transportation. Further, RSPA does
not agree that the requirements are inconsistent with the language and
intent of Title IV of the Trade Agreements Act of 1979. However, RSPA
agrees with HMAC that there is the possibility for errors and
mishandling at port areas for shipments made in accordance with the
IMDG Code, and there may be instances where the new labels are not
recognized in other countries, such as shipments to or from Canada.
RSPA believes there is a potential for delayed or frustrated shipments
for these PIH materials when transported by vessel under the provisions
of the IMDG Code as authorized by 49 CFR 171.12, or to or from Canada
under the provisions of 49 CFR 171.12a. Also, the potential for
exposure would be increased for transportation workers if they must
further handle and re-label these extremely toxic and highly volatile
materials. For these reasons, RSPA is granting the HMAC petition in
part, and denies other parts of the petition.
In order to facilitate international transportation in commerce of
PIH materials, RSPA is providing a limited exception, until October 1,
2001, from the requirement to display PIH labels on packages. The
exception applies only to PIH materials in non-bulk packages in a
closed transport vehicle or freight container that displays placards
and identification numbers for the PIH materials in other than domestic
transportation. Since the closed vehicles containing PIH materials in
non-bulk packages in containerized loads moving in international
commerce will, while in the United States, be identified as containing
such materials by the display of identification numbers, RSPA does not
believe that safety within the United States will be significantly
reduced by adoption of this rule. Therefore, in this interim final
rule, the provisions in Secs. 171.12 and 171.12a are revised to provide
a limited exception, until October 1, 2001, from the requirement to
display the PIH labels on packages, provided the PIH materials are in
non-bulk packages in closed transport vehicles or freight containers
placarded and marked with an identification number.
Because use of the new PIH labels would otherwise be required on
October 1, 1999, it is impossible for RSPA to publish an NPRM and
receive comments before issuing this interim final rule or to provide
at least 30 days before the effective date of this interim final rule.
Delay in issuing the interim final rule would create an undue hardship
on the international regulated community and have the potential to
disrupt and frustrate the shipment of these high hazard materials by
vessel, or by motor vehicle or rail car to or from Canada.
Although an opportunity for public comment on this particular
approach has not been provided prior to issuing this interim final
rule, RSPA encourages interested persons to participate in this
rulemaking by submitting comments containing information or views
concerning this interim final rule. Commenters opposing adoption of
this rule should provide a reason for their opposition. RSPA will
consider all public comments.
IV. Editorial Correction
An editorial correction is being made to remove paragraph (e) in 49
CFR 171.14, which contains a provision postponing the compliance date
for use of the new PIH labels an additional year, from October 1, 1998
to October 1, 1999. Except as provided for in this rule for shipments
by vessel in accordance with 49 CFR 171.12, or to or from Canada in
accordance with 49 CFR 171.12a, on and after October 1, 1999, packages
containing PIH materials must be labeled as required by the HMR.
Therefore, paragraph (e) is obsolete and it is removed.
V. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This interim final rule is not a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. A regulatory
evaluation prepared for the January 8, 1997 final rule is available in
the Docket (HM-206). Implementation of this labeling exception for PIH
materials provided by this rulemaking should not result in any
additional costs. Any savings associated with avoiding delay or
frustration of shipments is considered so minimal as to not warrant
revision of the regulatory evaluation.
B. Executive Order 12612
The final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism''). Federal
hazardous materials transportation law, 49 U.S.C. 5101-5127 contains
express preemption provisions at 49 U.S.C. 5125 and
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expressly preempts State, local, and Indian tribe requirements
applicable to the transportation of hazardous materials that cover
certain subjects and are not substantively the same as Federal
requirements. These subjects are:
(A) The designation, description, and classification of hazardous
material.
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials.
(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. The 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
December 15, 1999.
C. Executive Order 13084
RSPA believes this change will not significantly or uniquely affect
the communities of Indian tribal governments under the principles and
criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Therefore, the funding
and consultation requirements of this Executive Order would not apply.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), RSPA
must consider whether this interim final rule would have a significant
economic impact on a substantial number of small entities. This rule
provides limited relief to certain shippers and carriers of materials
poisonous by inhalation and will have no significant economic impacts.
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities.
E. Paperwork Reduction Act
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. This rule does not contain any new information
collection requirements.
F. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) 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. You may
use the RIN contained in the heading of this document to cross-
reference this action with the Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to either State, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objectives of the rule.
H. Impact on Business Processes and Computer Systems
Many computers that use two digits to keep track of dates will, on
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900.
This glitch, Year 2000 problem, could cause computers to stop running
or to start generating erroneous data. The year 2000 problem poses a
threat to the global economy in which Americans live and work. With the
help of the President's Council on Year 2000 Conversion, Federal
agencies are reaching out to increase awareness of the problem and to
offer support. RSPA does not want to impose new requirements that would
mandate business process changes when the resources necessary to
implement those requirements would otherwise be applied to the Year
2000 problem.
This final rule does not contain business process changes and does
not require modifications to computer systems for computer generated
labels. The rule does not affect organizations' ability to respond to
the Year 2000 problem and provides some relief to the international
regulated community, until October 1, 2001, when mandatory compliance
with the new PIH labeling is required.
List of Subjects in 49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 171 is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR part 1.
2. Section 171.12 is amended by adding paragraph (b)(8)(iv), and by
revising paragraphs (b)(8)(ii) and (iii) to read as follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) * * *
(8) * * *
(ii) The material must be packaged in accordance with the
requirements of this subchapter;
(iii) Except as provided in paragraph (b)(8)(iv) of this section,
the package must be marked in accordance with Sec. 172.313 of this
subchapter and labeled and placarded with ``POISON INHALATION HAZARD''
or ``POISON GAS'', as appropriate, in accordance with subparts E and F,
respectively, of part 172 of this subchapter;
(iv) Until October 1, 2001, the package may be labeled in
accordance with the IMDG Code if transported in a closed transport
vehicle or freight container marked with identification numbers for the
materials in any quantity in the manner specified in paragraphs (c) and
(c)(3) of Sec. 172.313 of this subchapter and placarded as required by
subpart F of part 172 of this subchapter.
* * * * *
3. Section 171.12a is amended by adding paragraph (b)(5)(iv), and
by revising paragraphs (b)(5)(ii) and (iii) to read as follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(5) * * *
(ii) The material must be packaged in accordance with the
requirements of this subchapter;
(iii) Except as provided in paragraph (b)(5)(iv) of this section
and for a
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package containing anhydrous ammonia, the package must be marked in
accordance with Sec. 172.313 of this subchapter and labeled and
placarded with ``POISON INHALATION HAZARD'' or ``POISON GAS'', as
appropriate, in accordance with subparts E and F, respectively, of part
172 of this subchapter. For shipments of anhydrous ammonia, the
shipping paper must contain an indication that the markings, labels and
placards have been applied in conformance with the TDG Regulations and
this paragraph (b)(5);
(iv) Until October 1, 2001, the package may be labeled in
accordance with the TDG Regulations if transported in a closed
transport vehicle or freight container marked with identification
numbers for the materials in any quantity in the manner specified in
paragraphs (c) and (c)(3) of Sec. 172.313 of this subchapter and
placarded as required by subpart F of part 172 of this subchapter.
* * * * *
Sec. 171.14 [Amended]
4. In Sec. 171.14, paragraph (e) is removed.
Issued in Washington, DC, on September 13, 1999, under the
authority delegated in 49 CFR part 1.
Stephen D. Van Beek,
Deputy Administrator.
[FR Doc. 99-24176 Filed 9-15-99; 8:45 am]
BILLING CODE 4910-60-P
