Improvements to Hazardous Materials Identification Systems; Corrections and Responses to Petitions for Reconsideration

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171 and 172

[Docket No. HM-206]

RIN 2137-AB75

Improvements to Hazardous Materials Identification Systems;

Corrections and Responses to Petitions for Reconsideration

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule; editorial revisions and responses to petitions for

reconsideration.

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SUMMARY: In this rule, RSPA is making changes to a final rule published

on January 8, 1997, in which RSPA amended the Hazardous Materials

Regulations to better identify and communicate the hazards associated

with hazardous materials in transportation in commerce. This final rule

corrects errors in, and responds to petitions for reconsideration of,

the January 8, 1997 final rule. The changes in this final rule include

postponement until October 1, 1998, of the effective date of the

January 8, 1997 final rule, and October 1, 1999, of the date for

compliance with a requirement for new labels on packagings containing

materials poisonous by inhalation.

As modified by this final rule, the January 8, 1997 final rule is

intended to assist emergency response personnel in responding to and

mitigating the effects of incidents involving the transportation of

hazardous materials, and to improve safety to transportation workers

and the public.

DATES: Effective date: The effective date for the final rule published

under this docket at 62 FR 1217 on January 8, 1997, is delayed until

October 1, 1998. This final rule is effective October 1, 1998.

Compliance date: Voluntary compliance with the January 8, 1997

final rule has been authorized beginning February 11, 1997. Voluntary

compliance with this final rule is authorized beginning July 22, 1997.

FOR FURTHER INFORMATION CONTACT: Helen L. Engrum or Paul Polydores,

telephone (202) 366-8553, Office of Hazardous Materials Standards,

Research and Special Programs Administration, U.S. Department of

Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On January 8, 1997, RSPA published a final rule (62 FR 1217) in the

Federal Register under Docket HM-206 that amended the hazard

communication requirements in the Hazardous Materials Regulations

(HMR), 49 CFR Parts 171-180, to enhance the identification of hazardous

materials during their transportation in commerce. This rule was issued

in response to Section 25 of the Hazardous Materials Transportation

Uniform Safety Act of 1990 (HMTUSA) (Pub. L. 101-615), which required

the Secretary of Transportation to initiate a rulemaking to, among

other matters, determine methods of improving the existing system of

placarding vehicles transporting hazardous materials.

RSPA received more than 20 petitions for reconsideration of that

rule and other inquiries and comments identifying errors and requesting

clarification. The petitions for reconsideration requested changes to:

(1) The effective date for parts or all of the final rule, including

postponement or withdrawal of new requirements applicable to materials

poisonous by inhalation (PIH) until such time as similar requirements

are adopted as international standards; (2) the requirements to display

identification number markings on transport vehicles and freight

containers containing large quantities of hazardous materials in non-

bulk packages and on closed vehicles containing bulk packagings; (3)

the reduction from 2,268 kg (5,000 lbs.) to 1,000 kg (2,205 lbs.) of

the maximum allowable weight of a mixed load of ``Table 2'' hazardous

materials for which the alternative DANGEROUS placard may be used; and

(4) requirements for marking the transport vehicle with the carrier's

telephone number, or to have the shipping paper and emergency response

information readily available on the transport vehicle, when that

vehicle is separated from its motive power and parked at a location

other than a consignee's, consignor's, or carrier's facility.

II. Summary of Regulatory Changes

In this final rule, RSPA is postponing for one year, until October

1, 1998, the effective date of the January 8, 1997 final rule. RSPA is

also postponing for an additional year, until October 1, 1999, the

compliance date for use of the new PIH labels for gases and certain

liquids that are materials poisonous by inhalation. The compliance date

for use of the new PIH placards remains October 1, 2001. RSPA is also

making other changes in response to the petitions for reconsideration

or to correct and clarify the January 8, 1997 final rule where

appropriate. This final rule clarifies the January 8, 1997 final rule

and makes certain corrections to carry out its intent. It imposes no

significant regulatory burden and, in many cases, relaxes provisions of

the January 8, 1997 final rule.

The preamble to the January 8, 1997 final rule included a table

summarizing the amendments to the HMR in that rule and the compliance

date for each. 62 FR 1224. That table is republished and revised below

to summarize the changes made in this rulemaking, as modified by this

document. The revised form of this table below corrects a typographical

error in the January 8, 1997 final rule, where the table incorrectly

listed October 1, 2001 as the date for compliance with the changes to

Secs. 172.302 and 173.9, concerning the FUMIGANT marking. In the

following table, ``revised'' means there is a change to the rule

published on January 8, 1997 (beyond postponement of the compliance

date).

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Section Action Discussion Compliance date

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Sec. 172.301...................... ID No. marking on New requirement; Oct. 1, 1998.

vehicle loaded with revised.

only one hazmat in

non-bulk packages at

one originating

facility.

Sec. 172.313...................... ID No. marking on New requirement; Oct. 1, 1998.

vehicle for a single revised.

PIH material with 1,000 kg in

non-bulk packages.

Sec. 172.328...................... ID No. marking display New requirement; Oct. 1, 1998.

on closed vehicle revised.

containing cargo

tanks.

Sec. 172.331...................... ID No. marking display Expansion of current Oct. 1, 1998.

on closed vehicle requirement

containing other bulk applicable to

packagings (e.g. portable tanks.

IBCs).

Secs. 172.416 & 172.429........... PIH labels for gases Replaces POISON label Oct. 1, 1999.

and certain liquids and POISON GAS label

that are materials design; revised.

poisonous by

inhalation.

[[Page 39399]]

Sec. 172.504(b)................... Specific placard Reduction of 2,268 kg Oct. 1, 1998.

required when 1,000 kg of one which the alternate

class of Table 2 DANGEROUS placard is

hazmat on a vehicle. permitted on mixed

loads.

Sec. 172.606(a)................... Carrier must instruct New requirement....... Oct. 1, 1998.

operator of motor

vehicle to contact

the company in the

event of a hazmat

incident.

Sec. 172.606(b)................... Requiring information New requirement; Oct. 1, 1998.

with parked (dropped) revised.

motor vehicle.

Secs. 172.302 & 173.9............. FUMIGANT marking, Expansion of existing Oct. 1, 1998.

applying to all modes. requirements and

adoption of

international design.

Sec. 172.502...................... Prohibited display of Expansion of existing Oct. 1, 2001.

extraneous requirements; revised.

information on

placard and in

placard holder.

Secs. 172.540 & 172.555........... PIH placards for gases Replaces POISON and Oct. 1, 2001.

and certain liquids POISON GAS placard

that are materials design; revised.

poisonous by

inhalation.

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Any petition for reconsideration that is not granted in this final

rule is denied.

III. Editorial Changes and Responses to Petitions

A. Extension of Effective Date

Approximately half of the petitions for reconsideration objected to

RSPA's issuance of new labeling and placarding requirements for PIH

materials in advance of adoption of similar requirements by the United

Nations Committee of Experts. These requirements included a revised

POISON GAS label and placard for Division 2.3 materials and a new

POISON INHALATION HAZARD label and placard for Division 6.1 materials

in Hazard Zones A or B. (Unless the context indicates otherwise, the

terms ``PIH labels'' and ``PIH placards'' refer, respectively, to the

new labels and placards for materials in both Divisions 2.3 and 6.1.)

Except for the hazard class number (and the larger size of placards),

all of these new labels and placards are identical in format including,

when text is included, the words ``Inhalation Hazard.''

The Hazardous Materials Advisory Council stated that the United

States should not require the distinctive PIH labels and placards until

an international standard is developed and adopted. Compressed Gas

Association, Inc. (CGA) and the Chlorine Institute asked that the date

for mandatory use of the PIH labels be delayed until October 1, 2001,

when the new placards are required. They stated that inspection and

emergency response personnel would be confused when the old POISON GAS

placards (all white background with optional ``Poison Gas'' wording)

were on a vehicle containing cylinders with the revised POISON GAS

labels (black background of upper diamond and optional ``Inhalation

Hazard'' wording). These petitioners also stated that additional time

was needed to obtain and affix the new labels and conduct training;

according to CGA, cylinders are often out of their owners' control for

extended periods of time.

The Vessel Operators Hazardous Materials Association, Inc. asked

that the October 1, 2001 compliance date for use of the PIH placard be

made applicable to all shipments by all modes, on the ground that this

transition period should apply to all intermodal shipments that include

transportation by vessel. The National Welding Supply Association

(NWSA) and one of its members stated that the October 1, 2001

compliance date for use of the new POISON GAS placard would not provide

any relief because placing the identification number on the placard

seemed to be the only practical way of meeting the requirement in

Sec. 172.313 for marking the identification number on vehicles

containing more than 1,000 kg. of PIH materials. These petitioners

indicated that it would be impractical to install permanently-mounted

``flip-type'' placards now and then change to a new set in 2001. The

NWSA member asked that, if RSPA decided not to change the marking and

labeling requirements for PIH materials, the compliance date for the

identification marking and new POISON GAS label be extended by two

years until October 1, 1999.

Other petitioners requested that the date for voluntary compliance

with the new requirements concerning PIH shipments be postponed to

allow additional time for training. The Los Angeles Police Department

(LAPD) stated that the January 8, 1997 final rule allowed the removal

of the ``Inhalation Hazard'' marking from a packaging of PIH materials

as soon as February 11, 1997, if the packaging had the new PIH label or

placard, which, as noted by a LAPD officer, are not required to contain

the ``Inhalation Hazard'' wording. See Secs. 172.405(a), 172.519(b)(3).

LAPD asked that shippers not be allowed to remove the ``Inhalation

Hazard'' marking until the next printing of the North American

Emergency Response Guidebook, but that a delay of 18 months was the

``absolute minimum acceptable time for national responder awareness and

training.'' CGA submitted an additional letter in which it stated that

it supports LAPD's petition to allow sufficient time for responders to

become familiar with new labels, placards, and markings.

Another petitioner focused on the lowering, from 2,268 kg (5,000

lbs.) to 1,000 kg (2,205 lbs.), of the upper weight limit for the

alternative use of the DANGEROUS placard for mixed loads of hazardous

materials listed in Table 2 of Sec. 172.504(e). It stated that, because

shippers and their employees are familiar with the English system of

measurement, they will have difficulty remembering the ``odd number''

of 2,205 lbs. as the equivalent to 1,000 kg for the threshold at which

the DANGEROUS placard may not be used. On this ground, it requested a

delay until October 1, 2001, for compliance with the lowered 1,000 kg

threshold, to allow additional time for shippers ``to convert to SI

units'' and for carriers to train their employees.

Other petitioners asked that the effective date of the entire rule

be postponed. American Trucking Associations (ATA) stated that eight

months was not sufficient for training employees in the changes in the

January 8, 1997 final rule, and it recommended that RSPA delay

compliance for one year until October 1, 1998, to provide adequate time

for training and implementation.

After carefully considering these petitions, RSPA is postponing for

one year, until October 1, 1998, the effective date of the January 8,

1997 final rule. In a new Sec. 171.14(e), RSPA is also postponing for

an additional year, until

[[Page 39400]]

October 1, 1999, the compliance date for use of the new PIH labels.

RSPA plans to issue in 1999 a new edition of the North American

Emergency Response Guidebook, which would be available when the new PIH

labels and placards will be required.

These postponements will allow sufficient additional time for

shippers, carriers, and emergency response personnel to implement the

new requirements and train their employees. The postponement of the

compliance date for use of the new PIH label will also allow time for

the U.N. Committee of Experts on the Transport of Dangerous Goods to

consider the United States' proposals for international adoption of the

PIH marking, labeling and placarding requirements adopted in the

January 8, 1997 final rule.

The one-year postponement in the effective date (until October 1,

1998) applies to the amendment of Sec. 172.504(b), concerning the upper

weight limit for use of the alternative DANGEROUS placard. Beyond that,

RSPA is not extending the date for compliance with the reduction in the

maximum allowable weight (from 2,268 kg to 1,000 kg) of a mixed load of

Table 2 hazardous materials for which the alternative DANGEROUS placard

may not be used. The International System of Units (``SI'' or metric)

has been the HMR ``regulatory standard'' since October 1, 1991 (the

effective date of the final rule in Docket No. HM-181), Sec. 171.10(a),

and the postponement of the effective date of this change (until

October 1, 1998) should be sufficient time for training.

The October 1, 2001 compliance date is retained for use of the new

placards for PIH materials, but RSPA is adding a footnote to the

Placard Substitution Table in Sec. 171.14(b) to clarify that, for PIH

materials, until October 1, 2001, shippers by all modes have the

options of using placards that meet the requirements (1) in effect

prior to October 1, 1991 (the effective date of changes made in the

rulemaking under Docket No. HM-181), (2) adopted in the final rule in

HM-181, or (3) adopted in the January 8, 1997 final rule, as modified

in this document. (As discussed in the next section, the entries for

Division 6.1 materials in the Placard Substitution Table are also being

revised.)

RSPA does not believe it is necessary or appropriate to modify the

existing voluntary compliance date. The primary concern raised in this

regard is the possible removal of the ``Inhalation Hazard'' marking

when the new PIH label or placard is used. RSPA is addressing this

concern by revising Sec. 172.313(a) to allow removal of the

``Inhalation Hazard'' marking only when those same words appear on the

label or placard, as applicable.

RSPA also believes that, with the additional year for training

before the effective date of October 1, 1998, responders will not be

confused by small differences between placards on a transport vehicle

and labels on cylinders within the vehicle, inasmuch as the words

``Inhalation Hazard'' will be required on the cylinder or other

packaging (either as a marking or on the label). Some variations have

always existed between placards and labels, particularly in light of

the transitional provisions in Sec. 171.14(b) that have applied since

1991. Moreover, by providing until October 1, 1999, before use of the

new PIH labels is required, RSPA has reduced from four years to two

years the period when the PIH label is required before the PIH placard

must be used.

B. PIH Labels, Placards, and Marking

As published in the Federal Register, the graphics of the new PIH

labels and placards shown in the January 8, 1997 rule were inaccurate.

The shape of the upper diamond (containing a skull and cross-bones on a

black background) is square-on-point. Moreover, it is necessary to

increase the distance between the lower point of the upper diamond and

the horizontal center line of the placard to allow for display of

identification numbers, under the option allowed in Sec. 172.332(a).

These errors are corrected in this document. See Secs. 172.416,

172.429, 172.540, and 172.555.

One petitioner and several persons who telephoned brought to RSPA's

attention that certain liquids in Division 6.1, Packing Group II, had

been omitted from the PIH materials referenced in the Placard

Substitution Table in Sec. 171.14(b), the Label Substitution Table in

Sec. 172.101(g), the table of label designations in Sec. 172.400(b),

and placarding Table 1 in Sec. 172.504(e). Although these materials do

not meet the classification criteria in the UN Recommendations for an

inhalation hazard, they are designated as PIH materials in the HMR

because they are poisonous by inhalation. Examples of these materials

are ``Bromoacetone, 6.1, UN 1569, PG II,'' and ``Phenyl Isocyanate,

6.1, UN 2488, PG II.''

The four tables in Secs. 171.14(b), 172.101(g), 172.400(b), and

172.504(e) are being revised to specify the POISON INHALATION HAZARD

label and placard for all materials in Division 6.1 (inhalation hazard,

Zone A or B) and to specify the POISON label and placard for materials

in Division 6.1 (PG I or II, other than Zone A or B inhalation hazard).

As already stated, Sec. 172.313(a) is being revised to specify that

the ``Inhalation Hazard'' marking may be omitted only when those words

appear on the PIH label or placard, as applicable.

RSPA is also revising Sec. 172.313(c) in response to petitions

which expressed concern about possible miscommunication of actual risk

to emergency responders resulting from too many identification numbers

because of the requirement to mark a transport vehicle or freight

container with identification numbers of PIH material in non-bulk

packagings which total more than 1,000 kg (2,205 lbs.) aggregate gross

weight. As revised in this document, Sec. 172.313(c) requires marking

the identification number on a transport vehicle or freight container

that contains more than 1,000 kg aggregate gross weight of PIH

materials in Hazard Zone A or B having the same proper shipping name

and identification number, in non-bulk packagings, that are loaded at a

single loading facility. RSPA is denying those petitions that asked for

a complete elimination of this marking requirement.

In the January 8, 1997 final rule, RSPA revised

Secs. 171.11(d)(9)(iii), 171.12(b)(8)(iii), and 171.12a(b)(5)(iii) to

replace references to the POISON label and placard with references to

the new POISON INHALATION HAZARD label and placard. However, RSPA

inadvertently failed to add a reference in Sec. 172.402(e)(1),

concerning a Class 1 material that also meets the definition for a

material poisonous by inhalation in Division 6.1. RSPA is amending

Sec. 172.402(e)(1) to add a reference to the new PIH label as a

secondary label. This is simply an editorial change and implements the

purpose of this rulemaking to replace the POISON label and placard with

the new POISON INHALATION PLACARD for Division 6.1 materials in Hazard

Zones A and B that are poisonous by inhalation.

For the reasons set forth in the preamble to the January 8, 1997

final rule, RSPA is denying petitions that opposed adoption of the PIH

labels and placards. Since 1985, RSPA has worked toward enhancing

safety in the transportation of PIH materials by establishing a

complete system of transportation controls for these materials,

including an improved communication of their presence. As a

continuation of that process, RSPA proposed in the August 15, 1994

Notice of Proposed Rulemaking (NPRM), 59 FR 41848, a distinctive label

and placard to provide a distinctive warning to

[[Page 39401]]

emergency responders of the unique hazardous (extreme toxicity, high

volatility) of PIH gases and liquids. This proposal responded to a

petition for rulemaking previously submitted by ATA and a graphic

design recommended by a LAPD officer. Earlier this year, RSPA proposed

the new PIH labels and placards to the U.N. Committee of Experts as an

international standard. See the discussion in the preamble to the

January 8, 1997 final rule, 62 FR 1219.

A majority of the commenters to the NPRM supported adoption of the

distinctive PIH labels and placards, although many also expressed

support for maintaining harmonization with the U.N. Recommendations.

Over many years, RSPA has adopted classification, hazard communication

and packaging requirements recommended by the U.N. Committee of

Experts, but RSPA believes that, in this matter, the United States

should not necessarily wait for an international standard to be

established. However, the postponement of the compliance dates until

October 1, 1999, for use of the PIH labels, and until October 1, 2001,

for use of the PIH placards, provides time for the U.N. Committee of

Experts to consider and take steps toward adoption of RSPA's proposal.

The desirable goal of international harmonization does not outweigh the

important safety benefits to be gained by adopting a distinctive label

and placard for PIH materials.

One petitioner asked RSPA to add an editorial note to revised

Sec. 177.841(e)(1) to clarify that a package bearing a POISON GAS label

may be transported in the same motor vehicle with material marked or

known to be foodstuffs, feed, or other edible material, without meeting

the additional precautions specified in (e)(1)(i) or (ii). RSPA denies

this petition because it believes that the present language of

Sec. 177.841(e)(1) is clear. As revised in the January 8, 1997 final

rule, only Division 6.1 materials labeled POISON or POISON INHALATION

HAZARD are subject to this restriction in Sec. 177.841(e)(1), while the

next paragraph, (e)(2), (which prohibits certain materials in the

driver's compartment) explicitly covers these materials and also

Division 2.3 materials required to have a POISON GAS label.

C. Other Identification Number Marking Requirements

1. Large quantities of non-bulk materials. Several petitioners

asked RSPA to eliminate or modify the identification number marking

requirement in Sec. 172.301(a)(3) for large quantities of non-bulk

packages in a transport vehicle. They expressed concern that an

increase in identification number displays will cause substantial

material and labor costs to industry and create confusion among

emergency responders. The petitioners stated that if the requirement is

retained, it should be restricted to vehicles fully loaded with a

single hazardous material. In addition, several petitioners requested

that RSPA except Class 1 materials from the requirement for the

identification number display because of safety concerns, and because

the North American Emergency Response Guidebook is not cross-referenced

by the identification number, but is designed to provide only generic

group information for explosives.

In response to these petitions, RSPA is revising Sec. 172.301(a)(3)

to apply to a transport vehicle or freight container that is loaded at

one loading facility with 4,000 kg (8,820 lbs.) or more of hazardous

materials in non-bulk packagings, when all the hazardous materials have

the same proper shipping name and identification number. Class 1 and 7

materials are excepted from this requirement. These revisions provide

greater consistency with the international standards based on the U.N.

Recommendations and the Canadian Regulations on the Transport of

Dangerous Goods, without adversely affecting safety.

By applying this identification number marking to transport

vehicles and freight containers loaded at one loading facility only

with hazardous materials having the same proper shipping name and

identification number, in non-bulk packagings, RSPA believes it has

adequately addressed the petitioners' concerns with regard to an

increase in the number of placards on any single vehicle or container.

The requirement in Sec. 172.301(a)(3) for marking the

identification number on a transport vehicle or freight container

loaded at one loading facility with more than 4,000 kg of one hazardous

material in non-bulk packagings is separate from the marking

requirement in Sec. 172.313(c) applicable to PIH materials. The

combined potential of these two requirements, as modified in this final

rule, is less than estimated by a petitioner who provided an example

involving a single load of eight different hazardous materials. The

addition of Sec. 172.313(c) will require an identification marking to

indicate the presence of more than 1,000 kg of a PIH material;

otherwise, the revisions to the HMR in this rulemaking will not require

any additional placards or markings for the particular combination of

hazardous materials in the example provided by the petitioner.

RSPA denies the petitions to totally eliminate the identification

number marking requirement for large quantities of certain hazardous

materials in non-bulk packages. Emergency responders should be provided

as much immediate specific information as practicable regarding the

contents of transport vehicles and freight containers. RSPA is also

denying ATA's petition to amend or remove Sec. 172.334(d). That section

states that a placard bearing an identification number may not be used

to satisfy the placarding requirements in subpart F of Part 172

``unless it is the correct identification number for all hazardous

materials of the same class in the transport vehicle or freight

container on which it is displayed.'' When different hazardous

materials within a hazard class are present in a transport vehicle or

freight container, and the identification number of one of the

materials must be displayed (e.g., a PIH material), the transport

vehicle must bear placards for that hazard class without an

identification number plus either (1) a separate set of placards with

the identification number or (2) the separate orange panels or white

square-on-point configurations as authorized by Sec. 172.332(a).

2. Closed transport vehicles or freight containers carrying cargo

tanks. One petitioner requested that RSPA further clarify that the

marking requirements in Secs. 172.302(a) and 172.328(a)(3) do not

require duplicative identification number markings on both the cargo

tank and the vehicle, when the markings on the cargo tank would not

normally be visible during transportation. The petitioner provided

sketches and examples of instances where, in his opinion, no additional

information would be communicated by marking the tank portion of the

cargo tank motor vehicle, such as when the cargo tank is permanently

installed on or within an enclosed vehicle, or when multiple cargo

tanks mounted on an open vehicle are so close together that it would be

difficult to see the markings on the adjacent sides of cargo tanks.

In response to this petition, RSPA is modifying Sec. 172.328(c) to

specify that when a cargo tank is permanently installed within an

enclosed cargo body of a transport vehicle or freight container, on the

outside of which identification numbers are marked, the identification

number marking required on the cargo tank by Sec. 172.302(a) need only

be displayed on each side and end of the cargo tank that is visible

when it is accessed. At this time, RSPA does not consider it feasible

to specify a

[[Page 39402]]

minimum distance between cargo tanks, when mounted on an open vehicle

and visible during transportation, that would warrant an exception from

identification number marking as also suggested by this petitioner.

3. Identification number marking for organic peroxides. In the

January 8, 1997 final rule, RSPA added materials in Division ``5.2

(Organic peroxide, Type B, liquid or solid, temperature controlled,''

to Table 1 in Sec. 172.504(e), so that placarding is required for any

amount. LAPD petitioned RSPA to also require the display of

identification numbers for these materials. It stated that the change

to the placarding table created a ``double meaning'' for the ORGANIC

PEROXIDE placard, and the emergency responder will not know whether the

organic peroxide material within a vehicle is temperature controlled or

not.

RSPA is denying LAPD's petition because this change was not

proposed in the NPRM, and it is beyond of the scope of this rulemaking.

Because this suggestion appears to have merit, RSPA will consider this

petition in a future rulemaking.

D. Other Placarding Requirements

1. DANGEROUS placard. In the January 8, 1997 final rule, RSPA

changed Sec. 172.504(b) by lowering from 2,268 kg (5,000 lbs.) to 1,000

kg (2,205 lbs.) the quantity of one class or division of a hazardous

material loaded at one facility for which a specific placard is

required. This reduced the upper weight limit for use of the DANGEROUS

placard (as an alternative to the specific hazard class placard) for a

mixed load of hazardous materials listed in Table 2 in Sec. 172.504(e).

A late-filed petition from a chemical company opposed this

reduction in the upper weight limit for use of the alternative

DANGEROUS placard. The petitioner stated that the change would result

in the use of many additional different placards and would be a

financial burden in terms of time spent by company personnel sorting

through the numerous shipping papers required on a multi-drop load to

determine what combination of placards is required on the outside of

the trailer.

For many years, emergency response organizations have expressed

concerns that the DANGEROUS placard does not provide sufficient

information to identify hazardous materials in a transport vehicle and

support elimination of this placard altogether. RSPA rejected total

elimination of the DANGEROUS placard, but lowered the upper weight

limit for use of the alternative DANGEROUS placard in order to improve

safety communication by requiring increased display of specific hazard

class and division warnings. This action is responsive to concerns

expressed in a 1993 report of the National Academy of Sciences (NAS),

under Section 25 of HMTUSA, on methods to improve the existing system

of placarding vehicles transporting hazardous materials, thereby

providing more effective information to facilitate response to

incidents involving hazardous materials in transportation in commerce.

The permitted use of the alternative DANGEROUS placard under

Sec. 172.504(b) is governed by the amount of one category of hazardous

material loaded ``at one loading facility.'' The use of different

placards for a mixed load of hazardous materials requires only that the

placard for each class of hazardous materials be removed when the last

package of that class is delivered, similar to the requirement that the

DANGEROUS placard must be removed when the last packaging of a mixed

load of hazardous materials is delivered (even if non-hazardous

materials remain to be delivered at further stops).

2. Prohibited Placarding (safety slogans). In the January 8, 1997

final rule, RSPA amended Sec. 172.502(a)(2) to prohibit any ``sign,

advertisement, slogan (such as ``Drive Safely'') or device that, by its

color, design, shape or content, could be confused with any placard * *

*'' RSPA also specified that this prohibition does not apply until

October 1, 2001, to a safety sign or slogan which was permanently

marked on a transport vehicle, bulk packaging, or freight container on

or before October 1, 1996.

RSPA is changing the latter date, in Sec. 172.502(b)(3), to August

21, 1997 to prevent the unintended effect of the final rule with

respect to a safety sign or slogan that may have been permanently

marked on a transport vehicle, bulk packaging, or freight container

between October 1, 1996 and issuance of the January 8, 1997 final rule.

Without this revision, a person who had installed a safety sign on his

or her vehicles after October 1, 1996, would be in violation on the

effective date of the January 8, 1997 final rule (now postponed until

October 1, 1998), while a person who had installed such a safety sign

before October 1, 1996 would have three additional years, until October

1, 2001, to remove it. This change will carry out RSPA's intent that

there be a reasonable cut-off date after which these slogan displays

could no longer be newly installed on vehicles.

E. Carrier Information Contact Requirements

In Sec. 172.606(b) (2) and (3), RSPA added alternative requirements

for marking the carrier's telephone number, or having the shipping

paper and emergency response information readily available, on a

highway transport vehicle that is separated from its motive power and

parked at a location other than a consignee's, consignor's, or

carrier's facility. As stated in the preamble to the January 8, 1997

final rule, these requirements are intended to enable emergency

responders to obtain more complete information about hazardous

materials on an unattended motor vehicle.

An individual petitioner asked RSPA to modify these requirements to

provide that (1) the telephone number marked on the vehicle must be

visible from 50 feet, and (2) that the shipping paper and emergency

response information must be available on the front of the transport

vehicle.

ATA and the National Tank Truck Carriers, Inc. (NTTC) petitioned

RSPA to eliminate (or not adopt) these two alternative requirements.

These petitioners stated they believed there was a risk to emergency

responders who would approach a trailer involved in a hazardous

materials incident to obtain a shipping paper and emergency response

information.

NTTC discussed application of this requirement to ``spotting''

cargo tank trailers containing a residue of a hazardous material, which

is a common occurrence at cargo tank cleaning facilities. NTTC stated

that, outside of normal working hours, it would be unlikely that an

emergency responder could reach the carrier, and that the carrier would

be unlikely to have information about the particular commodity and its

hazards. NTTC also stated that, in the event of an incident involving

an unattended vehicle carrying hazardous materials, emergency

responders should not be encouraged to approach the vehicle to look for

paperwork.

ATA also stated that if RSPA retains these alternative

requirements, an additional one year extension, until October 1, 1998,

should be provided to provide sufficient time for compliance with the

requirements of Sec. 172.606 (b)(2) and (b)(3).

As already discussed above, RSPA has extended the effective date of

this rule until October 1, 1998. RSPA is also adding a new

Sec. 172.606(c) to clarify that the requirements in paragraphs (b)(2)

and (b)(3) do not apply to an unattended motor vehicle separated from

its motive

[[Page 39403]]

power that is marked with each identification number of the hazardous

materials loaded therein, on an orange panel, a placard, or a plain

white square-on-point configuration, and the markings or placards are

visible on the outside of the motor vehicle.

RSPA is not eliminating the information requirements in

Sec. 172.606(b) for an unattended motor vehicle disconnected from its

motive power. RSPA continues to believe that there must be a method of

identifying hazardous materials in an unattended transport vehicle

disconnected from its motive power when identification number markings

are not displayed on the exterior of the motor vehicle. The presence of

a carrier's telephone number marked on a motor vehicle, or a copy of a

shipping paper and emergency response information attached to a motor

vehicle would provide access to such information. In regard to the

concerns of NTTC regarding ``spotting'' at cargo tank cleaning

facilities, the requirements prescribed in Sec. 172.606 (b)(1) and

(b)(2) are intended to apply to an unattended motor vehicle separated

from its motive power when there is no indication on the outside of the

motor vehicle as to the contents of the motor vehicle. Bulk packagings,

such as a cargo tank, containing a hazardous material or its residue

are required to be marked and placarded as prescribed under the HMR.

At this time, RSPA does not consider it necessary to specify a

minimum distance from which the carrier's telephone number in

Sec. 172.606(b)(2) must be visible, or the location for shipping papers

and emergency response information under the option in

Sec. 172.606(b)(3).

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a non-significant regulatory action

under section 3(f) of Executive Order 12866 and, therefore, was not

reviewed by the Office of Management and Budget.

The regulatory evaluation prepared for the August 15, 1994 NPRM was

examined and modified for the January 8, 1997 final rule. Both of these

documents are available for review in the public docket. This final

rule makes relatively minor, incremental changes in the regulations

concerning placarding and other means of communicating the hazards of

materials in transportation. In most cases, the changes clarify and

relax provisions of the January 8, 1997 final rule. The other changes

that carry out the intent of the January 8, 1997 final rule, such as

the inclusion of certain Division 6.1 materials within those for which

the new PIH labels and placards are required, will result in only

minimal costs to offerors of these materials for transportation in

commerce. Accordingly, no additional regulatory evaluation was

performed.

B. Executive Order 12612

The January 8, 1997, final rule and this final rule were analyzed

in accordance with the principles and criteria contained in Executive

Order 12612 (``Federalism''). The Federal law expressly preempts State,

local, and Indian tribe requirements applicable to the transportation

of hazardous material that cover certain subjects and are not

substantively the same as Federal requirements. 49 U.S.C. 5125(b)(1).

These subjects are:

(A) the designation, description, and classification of hazardous

material.

(B) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material.

(C) the preparation, execution, and use of shipping documents

related to hazardous material and requirements respecting the number,

content, and placement of those documents.

(D) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material.

(E) the design, manufacturing, fabricating, marking, maintenance,

reconditioning, repairing, or testing of a package or container

represented, marked, certified, or sold as qualified for use in

transporting hazardous material.

This final rule preempts State, local, or Indian tribe requirements

concerning these subjects unless the non-Federal requirements are

``substantively the same'' (see 49 CFR 107.202(d)) as the Federal

requirements. RSPA lacks discretion in this area, and preparation of a

federalism assessment is not warranted.

Federal law 49 U.S.C. 5125(b)(2) provides that if DOT issues a

regulation concerning any of the covered subjects, DOT must determine

and publish in the Federal Register the effective date of Federal

preemption. That effective date may not be earlier than the 90th day

following the date of issuance of the final rule and not later than two

years after the date of issuance. RSPA has determined that the

effective date of Federal preemption for these requirements will be

October 1, 1998.

C. Regulatory Flexibility Act

This final rule, which responds to petitions for reconsideration

and agency review, makes editorial and technical corrections, provides

clarification of the regulations, and relaxes certain requirements.

Although this final rule applies to all shippers and carriers of

hazardous materials, some of whom are small entities, the requirements

contained herein will not result in significant economic impacts.

Therefore, I certify that this final rule will not have a significant

economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

The information collection requirements in 49 CFR Parts 172 through

177 pertaining to shipping papers have been approved under OMB approval

number 2137-0035. This final rule does not increase any burden to

provide information. Under the Paperwork Reduction Act of 1995, no

person is required to respond to a collection of information unless it

displays a valid OMB control number.

The January 8, 1997 final rule amended Sec. 173.9 to require that a

shipping paper contain hazard warning information concerning the

fumigant for an international shipment. This information is a current

requirement for international shipments by vessel and insignificantly

increases the amount of burden imposed by this collection. RSPA

believes that this change in burden is not sufficient to warrant

revision of the currently approved information collection.

E. Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,

Imports, Reporting and recordkeeping requirements.

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labeling,

Marking, Packaging and containers, Reporting and recordkeeping

requirements.

In consideration of the foregoing, 49 CFR Chapter I is amended as

follows:

[[Page 39404]]

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for Part 171 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

2. In Sec. 171.14, the section heading and introductory text are

revised, paragraph (b) is revised, and a new paragraph (e) is added to

read as follows:

Sec. 171.14 Transitional provisions for implementing certain

requirements.

General. The purpose of the provisions of this section is to

provide an orderly transition to certain new requirements so as to

minimize any burdens associated with them.

* * * * *

(b) Transitional placarding provisions. Until October 1, 2001,

placards which conform to specifications for placards in effect on

September 30, 1991, or placards specified in the December 21, 1990

final rule may be used, for highway transportation only, in place of

the placards specified in subpart F of part 172 of this subchapter, in

accordance with the following table:

Placard Substitution Table

----------------------------------------------------------------------------------------------------------------

Hazard class or division No. Current placard name Old (Sept. 30, 1991) placard name

----------------------------------------------------------------------------------------------------------------

Division 1.1............................. Explosives 1.1.............. Explosives A.

Division 1.2............................. Explosives 1.2.............. Explosives A.

Division 1.3............................. Explosives 1.3.............. Explosives B.

Division 1.4............................. Explosives 1.4.............. Dangerous.

Division 1.5............................. Explosives 1.5.............. Blasting agents.

Division 1.6............................. Explosives 1.6.............. Dangerous.

Division 2.1............................. Flammable gas............... Flammable gas.

Division 2.2............................. Nonflammable gas............ Nonflammable gas.

Division 2.3\1\.......................... Poison gas.................. Poison gas.

Class 3.................................. Flammable................... Flammable.

Combustible liquid....................... Combustible................. Combustible.

Division 4.1............................. Flammable solid............. Flammable solid.

Division 4.2............................. Spontaneously combustible... Flammable solid.

Division 4.3............................. Dangerous when wet.......... Flammable solid W.

Division 5.1............................. Oxidizer.................... Oxidizer.

Division 5.2............................. Organic peroxide............ Organic peroxide.

Division 6.1, (inhalation hazard, Zone A Poison inhalation hazard.... Poison.

or B)\1\.

Division 6.1, PG I and II (other than Posion...................... Poison.

Zone A or B inhalation hazard).

Division 6.1, PG III..................... Keep away from food......... (none required).

Class 7.................................. Radioactive................. Radioactive.

Class 8.................................. Corrosive................... Corrosive.

Class 9.................................. Class 9..................... (none required).

----------------------------------------------------------------------------------------------------------------

\1\ For materials poisonous by inhalation, by all modes of transportation, until October 1, 2001, placards may

be used that conform to specifications for placards (1) in effect on September 30, 1991, (2) specified in the

December 21, 1990 final rule, or (3) specified in the July 22, 1997 final rule.

* * * * *

(e) Notwithstanding Secs. 172.416 and 172.429 of this subchapter

specified in the July 22, 1997 final rule, when labels are required by

subpart E of part 172 of this subchapter to be affixed to a material

poisonous by inhalation, labels that conform to the requirements of

this subchapter in effect on September 30, 1997, may be used on

packagings offered for transportation or transported until October 1,

1999.

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

3. The authority citation for Part 172 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

4. In Sec. 172.101(g), as amended at 62 FR 1227 effective October

1, 1998, the entries for label codes 6.1 in the Label Substitution

Table are revised to read as follows:

Sec. 172.101 Purpose and use of hazardous materials table.

* * * * *

(g) * * *

Label Substitution Table

------------------------------------------------------------------------

Label code Label name

------------------------------------------------------------------------

* * * * *

6.1 (inhalation hazard, Zone A or B)...... Poison Inhalation Hazard.

6.1 (I or II, other than Zone A or B Poison.

inhalation hazard) \2\.

6.1 (III) \2\............................. Keep Away From Food.

* * * * *

------------------------------------------------------------------------

* * * * *

\2\ The packing group for a material is indicated in column 5 of the

table.

* * * * *

5. In Sec. 172.301, paragraph (a)(3), as added at 62 FR 1227

effective October 1, 1998, is revised to read as follows:

Sec. 172.301 General marking requirements for non-bulk packagings.

(a) * * *

(3) Large quantities of hazardous materials in non-bulk packages. A

transport vehicle or freight container that is loaded at one loading

facility with 4,000 kg (8,820 pounds) or more aggregate gross weight of

hazardous materials in non-bulk packagings, when all the hazardous

materials loaded in the transport vehicle or freight container have the

same proper shipping name and identification number, must be marked

with the identification number specified for the hazardous material in

the Sec. 172.101 Table on each side and each end as specified in

Secs. 172.332 or 172.336. The requirement in this paragraph (a)(3) does

not apply to:

(i) Class 1, Class 7, or ORM-D materials; or

[[Page 39405]]

(ii) Limited quantities or small quantities of hazardous materials

(see Sec. 173.4 of this subchapter).

* * * * *

6. Section 172.313, as added at 62 FR 1228 effective October 1,

1998, is amended by adding introductory text and by revising paragraphs

(a) and (c) to read as follows:

Sec. 172.313 Poisonous hazardous materials.

In addition to any other markings required by this subpart:

(a) A material poisonous by inhalation (see Sec. 171.8 of this

subchapter) shall be marked ``Inhalation Hazard'' in association with

the required labels or placards, as appropriate, and shipping name when

required. The marking must be on two opposing sides of a bulk

packaging. (See Sec. 172.302(b) of this subpart for size of markings on

bulk packages.) When the words ``Inhalation Hazard'' appear on the

label, as prescribed in Secs. 172.416 and 172.429, or placard, as

prescribed in Secs. 172.540 and 172.555, the ``Inhalation Hazard''

marking is not required on the package.

* * * * *

(c) A transport vehicle or freight container loaded at one loading

facility with more than 1,000 kg (2,205 pounds) aggregate gross weight

of non-bulk packages containing materials poisonous by inhalation in

Hazard Zone A and B having the same proper shipping name and

identification number shall be marked as required by Sec. 172.332 with

the identification number specified for the material, in the

Sec. 172.101 Table, on each side and each end of the transport vehicle

or freight container.

7. In Sec. 172.328, paragraph (a)(3), as added at 62 FR 1228

effective October 1, 1998, is revised to read as follows:

Sec. 172.328 Cargo tanks.

(a) * * *

(3) For a cargo tank transported on or in a transport vehicle or

freight container, if the identification number marking on the cargo

tank required by Sec. 172.302(a) would not normally be visible during

transportation--

(i) The transport vehicle or freight container must be marked as

required by Sec. 172.332 on each side and each end with the

identification number specified for the material in the Sec. 172.101

Table; and

(ii) When the cargo tank is permanently installed within an

enclosed cargo body of the transport vehicle or freight container, the

identification number marking required by Sec. 172.302(a) need only be

displayed on each side and end of a cargo tank that is visible when the

cargo tank is accessed.

* * * * *

8. In Sec. 172.400(b), the table, as revised at 62 FR 1228

effective October 1, 1998, is amended by revising the entries for

Division 6.1 materials to read as follows:

Sec. 172.400 General labeling requirements.

* * * * *

(b) * * *

------------------------------------------------------------------------

Label

design or

Hazard class or division Label name section

reference

------------------------------------------------------------------------

* * * *

* * *

6.1 (inhalation hazard, Zone A or POISON INHALATION HAZARD 172.429

B).

6.1 (PG I or II, other than Zone POISON.................. 172.430

A or B inhalation hazard).

6.1 (PG III)..................... KEEP AWAY FROM FOOD..... 172.431

* * * *

* * *

------------------------------------------------------------------------

9. In Section 172.402, paragraph (e)(1) is revised to read as

follows:

Sec. 172.402 Additional labeling requirements.

* * * * *

(e) * * *

(1) Division 6.1, Packing Groups I or II, shall be labeled POISON

or POISON INHALATION HAZARD, as appropriate.

* * * * *

10. Section 172.416 is revised to read as follows:

Sec. 172.416 POISON GAS label.

(a) Except for size and color, the POISON GAS label must be as

follows:

BILLING CODE 4910-60-P

[[Page 39406]]

[GRAPHIC] [TIFF OMITTED] TR22JY97.022

(b) In addition to complying with Sec. 172.407, the background on

the POISON GAS label and the symbol must be white. The background of

the upper diamond must be black and the lower point of the upper

diamond must be 14 mm (0.54 inches) above the horizontal center line.

11. Section 172.429, as added at 62 FR 1229 effective October 1,

1998, is revised to read as follows:

Sec. 172.429 POISON INHALATION HAZARD label.

(a) Except for size and color, the POISON INHALATION HAZARD label

must be as follows:

[[Page 39407]]

[GRAPHIC] [TIFF OMITTED] TR22JY97.023

BILLLING CODE 4910-60-C

(b) In addition to complying with Sec. 172.407, the background on

the POISON INHALATION HAZARD label and the symbol must be white. The

background of the upper diamond must be black and the lower point of

the upper diamond must be 14 mm (0.54 inches) above the horizontal

center line.

12. In Sec. 172.502, paragraph (b)(3), as added at 62 FR 1230

effective October 1, 1998, is revised to read as follows:

Sec. 172.502 Prohibited and permissive placarding.

* * * * *

(b) * * *

(3) The restrictions in paragraph (a)(2) of this section do not

apply until October 1, 2001 to a safety sign or safety slogan (e.g.,

``Drive Safely'' or ``Drive Carefully''), which was permanently marked

on a transport vehicle, bulk packaging, or freight container on or

before August 21, 1997.

* * * * *

13. In Sec. 172.504(e), as revised at 62 FR 1230 effective October

1, 1998, the entries for Division 6.1 materials in Tables 1 and 2 are

revised to read as follows:

Sec. 172.504 General placarding requirements.

* * * * *

(e) * * *

Table 1

------------------------------------------------------------------------

Placard

Category of material (Hazard design

class or division number and Placard name section

additional description, as reference

appropriate) (Sec. )

------------------------------------------------------------------------

* * * *

* * *

6.1 (inhalation hazard, Zone A or POISON INHALATION HAZARD 172.555

B).

* * * *

* * *

------------------------------------------------------------------------

* * * * *

[[Page 39408]]

Table 2

------------------------------------------------------------------------

Placard

Category of material (Hazard design

class or division number and Placard name section

additional description, as reference

appropriate) (Sec. )

------------------------------------------------------------------------

* * * *

* * *

6.1 (PG I or II, other than Zone POISON.................. 172.554

A or B inhalation hazard).

6.1 (PG III)..................... KEEP AWAY FROM FOOD..... 172.553

* * * *

* * *

------------------------------------------------------------------------

* * * * *

14. Section 172.540 is revised to read as follows:

Sec. 172.540 POISON GAS placard.

(a) Except for size and color, the POISON GAS placard must be as

follows:

BILLING CODE 4910-60-P

[GRAPHIC] [TIFF OMITTED] TR22JY97.024

(b) In addition to complying with Sec. 172.519, the background on

the POISON GAS placard and the symbol must be white. The background of

the upper diamond must be black and the lower point of the upper

diamond must be 65 mm (2\5/8\ inches) above the horizontal center line.

The text, class number, and inner border must be black.

[[Page 39409]]

15. Section 172.555, as added at 62 FR 1233 effective October 1,

1998, is revised to read as follows:

Sec. 172.555 POISON INHALATION HAZARD placard.

(a) Except for size and color, the POISON INHALATION HAZARD placard

must be as follows:

[GRAPHIC] [TIFF OMITTED] TR22JY97.025

BILLING CODE 4910-60-C

(b) In addition to complying with Sec. 172.519, the background on

the POISON INHALATION HAZARD placard and the symbol must be white. The

background of the upper diamond must be black and the lower point of

the upper diamond must be 65 mm (2\5/8\ inches) above the horizontal

center line. The text, class number, and inner border must be black.

16. In Sec. 172.606, as added at 62 FR 1234 effective October 1,

1998, paragraph (c) is added to read as follows:

Sec. 172.606 Carrier information contact.

* * * * *

(c) The requirements specified in paragraph (b) of this section do

not apply to an unattended motor vehicle separated from its motive

power when the motor vehicle is marked on an orange panel, a placard,

or a plain white square-on-point configuration with the identification

number of each hazardous material loaded therein, and the marking or

placard is visible on the outside of the motor vehicle.

Issued in Washington, DC, on July 11, 1997, under authority

delegated in 49 CFR Part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 97-18995 Filed 7-21-97; 8:45 am]

BILLING CODE 4910-60-P