Improvements to Hazardous Materials Identification Systems; Editorial Revisions and Responses to Petitions for Reconsideration and Appeal

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

published on January 8, 1997, and modified in a July 22, 1997 final

rule, which amended the Hazardous Materials Regulations to better

identify hazardous materials in transportation. The primary changes

include: clarifying requirements for display of identification numbers

for large quantity shipments of hazardous materials; revising

requirements for display of identification numbers for non-bulk

packages of hazardous materials that are poisonous by inhalation in

Hazard Zone A or B; and providing alternative methods for marking the

carrier's telephone number on the exterior of a highway transport

vehicle containing hazardous materials that is disconnected from its

motive power and not marked with an identification number. Other minor

technical and editorial changes are also made. In making improvements

to the hazardous materials identification systems in the HMR, RSPA

intends to improve safety for transportation workers, emergency

responders, and the public.

In this final rule, RSPA is responding to four petitions for

reconsideration of the July 22, 1997 final rule and one appeal of an

RSPA denial of part of a petition for reconsideration of the January 8,

1997 final rule. Generally, this final rule clarifies and revises

certain requirements in partial response to the petitions and the

appeal and denies other parts of the petitions and the appeal.

DATES: Effective date: This final rule is effective October 1, 1998.

The effective date for the final rules published under Docket HM-206 on

January 8, 1997 (62 FR 1217) and July 22, 1997 (62 FR 39398) remains

October 1, 1998.

Compliance dates: Voluntary compliance with the January 8, 1997 and

the July 22, 1997 final rules have been authorized beginning February

11, 1997 and July 22, 1997, respectively. Voluntary compliance with

this final rule is authorized beginning May 1, 1998.

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

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

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

Transportation, 400 Seventh Street, SW., Washington, D.C. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background and Summary

On January 8, 1997, RSPA published a final rule in the Federal

Register (62 FR 1217) under Docket HM-206 that amended the hazard

communication requirements in the Hazardous Materials Regulations (HMR;

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

materials during transportation in commerce. The January 8, 1997 final

rule was issued in response to Section 25 of the Hazardous Materials

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

required the Secretary of Transportation to initiate a rulemaking to,

among other matters, determine methods of improving the existing system

of placarding vehicles transporting hazardous materials. Based on the

merit of petitions and other revisions RSPA determined to be necessary

to correct or clarify the January 8, 1997 rule, a final rule was

published in the Federal Register (62 FR 39398), on July 22, 1997,

correcting the January 8, 1997 rule and responding to petitions for

reconsideration.

Following publication of the July 22, 1997 amended final rule, RSPA

received four petitions for reconsideration, an appeal under 49 CFR

106.38 of RSPA's denial of part of a petition for reconsideration of

the January 8, 1997 final rule, and a separate inquiry identifying an

error in the January 8, 1997 final rule that was not corrected in the

July 22, 1997 final rule. In response to these, RSPA is revising four

sections of the HMR as follows:

(1) In Sec. 172.301(a)(3), concerning large quantities of hazardous

materials in non-bulk packages, a revision is made to further clarify

that a vehicle or container containing only a single hazardous material

and no other material, hazardous or otherwise, in non-bulk packages

loaded at one loading facility must be marked with the identification

number.

(2) In Sec. 172.313(c), concerning identification number marking of

a material poisonous by inhalation (PIH) in Hazard Zone A or B in non-

bulk packages, the phrase ``with more than 1,000 kg (2,205 lbs.)'' is

changed to ``with 1,000 kg (2,205 lbs.) or more'' for consistency in

approach with Sec. 172.301(a)(3); the words ``Hazard Zone A and B'' are

changed to ``Hazard Zone A or B''; and a provision is added clarifying

the requirement for identification number marking display for different

PIH materials in a vehicle or container.

(3) In Sec. 172.504, Footnote 1 to placarding table 1 is revised to

correctly state requirements applicable to exclusive use shipments of

low specific activity and surface contaminated radioactive materials

transported in accordance with Sec. 173.427(b)(3) and (c).

(4) Section 172.606(b)(2) is revised to clarify methods for marking

the carrier's telephone number on a highway transport vehicle

containing hazardous materials that is disconnected from its motive

power and not marked with an identification number.

In all other respects, RSPA is denying the petitions for

reconsideration of the July 22, 1997 final rule and the appeal of

RSPA's prior denial of a petition for reconsideration of the January 8,

1997 final rule. Denied are requests to: (1) increase from 1,000 kg to

4,000 kg the threshold quantity for identification number marking of

PIH materials; (2) adopt additional provisions concerning

responsibility for providing, affixing and maintaining identification

number markings; (3) except placarded transport vehicles (without

identification number markings) from carrier information contact

requirements applicable to unattended motor vehicles; and (4) allow

slogans or other similar communications (e.g., ``Drive Safely'') to

remain on placard-type displays or in placard holders until they wear

out and are replaced.

II. Discussion of Editorial Changes and Responses to Petitions for

Reconsideration and an Appeal Under 49 CFR 106.38

A. Identification Number Marking Display for Large Quantities of

Hazardous Materials in Non-bulk Packages

In the January 8, 1997 final rule, a new requirement was adopted

requiring display of identification numbers for large quantities of

hazardous materials in non-bulk packages having a single identification

number and having an aggregate gross weight of 4,000 kg or more in a

transport vehicle or freight container. In the final rule, RSPA decided

to avoid use of the economic

[[Page 16071]]

terms ``truckload'' and ``carload'' for the application of the

identification number marking requirements to large quantities of

hazardous materials in non-bulk packages in a vehicle or container. In

addition, RSPA chose the 4,000 kg threshold to preclude application of

the requirement to small vehicles, such as pick-up trucks and small

vans. In the July 22, 1997 final rule, RSPA revised Sec. 172.301(a)(3)

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

one loading facility with 4,000 kg or more of hazardous materials in

non-bulk packages, when all the hazardous materials have the same

proper shipping name and identification number.

The Hazardous Materials Advisory Council (HMAC) and Roadway

Express, Inc., petitioned RSPA for further clarification on how the

requirement is to be applied, particularly during pick-up and delivery

of less-than-truckload (LTL) freight, and asked for guidance in this

area. They also recommended that RSPA amend the regulations to address

responsibility for providing, affixing, and maintaining the

identification number marking displays. The petitioners believe

responsibility should be separately set forth in Sec. 172.301 in order

to eliminate confusion or misunderstanding between persons who offer

hazardous materials for transportation and carriers when the situation

demands that a transport vehicle be properly marked for transportation.

The petitioners said that the assignment of responsibility is obscured

in a paragraph on general applicability (Sec. 172.300) rather than as

clearly stated in a similar requirement in Sec. 172.506 dealing with

providing placards.

The petitioners also asked for guidance on the applicability of the

identification number marking requirements for non-bulk packages in a

transport vehicle or freight container carrying LTL freight. They

indicated that different conclusions might be reached, depending on

whether there were different hazardous materials that meet or exceed

the threshold quantity (4,000 kg) loaded in the vehicle or container at

the same or subsequent loading point.

RSPA believes the changes in the requirements for identification

number marking made in the July 22,1997 final rule responded to many of

the problems identified by the petitioners. RSPA modified the rule to

apply only when all the hazardous materials loaded at one loading

facility have the same proper shipping name and identification number.

However, RSPA is revising Sec. 172.301(a)(3) to further clarify that

the requirement applies only when a vehicle contains a single hazardous

material loaded at one facility, and no other materials, hazardous or

otherwise. This clarification makes the requirement more consistent

with provisions in the UN Recommendations for placing identification

numbers on ``packaged dangerous goods of a single commodity which

constitute a full load for the transport unit.''

In an effort to provide guidance and facilitate further

clarification and understanding of this requirement, the following

examples indicate whether identification numbers are required for

shipments of non-bulk packages at one loading facility:

(No--Means no identification number required.)

Examples

(1) 4000 kg of ``Acetone, UN 1090'' and no other material (hazardous

or non-hazardous)--Yes

(2) Less than 4000 kg of only a single HAZMAT--No

(3) 3,000 kg of ``Acetone, UN 1090'' and 2,000 kg of ``Paint, UN

1263''--No

(4) 5,000 kg of ``Acetone, UN 1090,'' 5,000 kg of ``Paint, UN 1263''

and 5,000 kg of ``Ethanol, UN 1170''--No

(5) 5,000 kg or more of ``Acetone, UN 1090'' and 1,000 kg of Paint, UN

1263'' in Limited Quantities, Small Quantities, or Consumer

Commodities--No

(6) 5,000 kg or more of ``Acetone, UN 1090'' and 10,000 kg of

automobile parts--No

RSPA believes that the requirements in Sec. 172.300 adequately

prescribe applicability and responsibility for the marking requirements

in the HMR. That is, each person who offers a hazardous material for

transportation must mark each package, freight container or transport

vehicle containing the hazardous material as required in Subpart D of

Part 172. When assigned the function to display the identification

number marking, as in a situation which comes under carrier control

(e.g., when a LTL freight carrier consolidates at one loading facility

non-bulk packages of hazardous materials requiring identification

number marking), the carrier bears responsibility for providing and

affixing the identification number marking. For these reasons, RSPA is

denying the petitions for an additional section that would essentially

duplicate the requirements already set forth in Sec. 172.300.

B. Identification Number Marking Display for Certain Quantities of

Packaged PIH Materials

In the January 8, 1997 final rule, RSPA specified 1,000 kg as the

threshold quantity for display of identification number markings for a

PIH material in non-bulk packages in a transport vehicle or freight

container. In the July 22, 1997 final rule corrections and responses to

petitions for reconsideration, RSPA revised the identification number

marking requirement to limit it to PIH materials in Hazard Zone A or B

having the same proper shipping name and identification number. RSPA

also included an exception from the currently required ``Inhalation

Hazard'' marking provision when the words ``Inhalation Hazard'' appear

on the PIH label or placard.

In their petitions, the Association of Waste Hazardous Materials

Transporters (AWHMT), HMAC, and Roadway Express recommended that RSPA

clarify, for consistency, the phrases ``more than'' as used in

Sec. 172.313(c) and ``or more'' as used in Sec. 172.301(a)(3), that

triggers compliance when the threshold quantity is met or exceeded for

display of identification number markings. HMAC and Roadway Express

recommended both sections read ``more than,'' while AWHMT took no

position on which phrase would be more appropriate.

The Compressed Gas Association (CGA) submitted an appeal of RSPA's

denial of their petition in the July 22, 1997 final rule, under the

provisions of 49 CFR 106.38, and expressed its concern regarding

multiple markings. CGA said:

RSPA did respond to our previous comment on potentially

misinterpreting markings for different hazard zone markings by

restricting this to only Hazard Zone A and B. However, RSPA did not

address CGA's concern about multiple markings for poisonous by

inhalation materials causing confusion among the emergency

responders.

CGA suggested that its concern be addressed by revising

Sec. 172.313(c) to be consistent with the wording in Sec. 172.301(a)(3)

that an identification number would be required only when all the

Hazard Zone A or B materials in non-bulk packages loaded in the vehicle

or container have the same proper shipping name and identification

number. CGA indicated, by limiting application of the identification

number marking for certain materials poisonous by inhalation, that such

a revision would address their concerns relative to multiple markings

causing confusion among emergency responders.

[[Page 16072]]

HMAC petitioned RSPA to revise Sec. 172.313(c) and recommended that

the identification number marking threshold, 1,000 kg for PIH materials

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

identification number in non-bulk packages, be raised to 4,000 kg, the

same threshold for non-PIH hazardous materials in non-bulk packages.

HMAC indicated that a different threshold for PIH materials would

impose additional training problems for persons offering or

transporting these materials.

CGA also had concerns regarding voluntary compliance. It said

voluntary compliance as authorized in HM-206 creates three points of

confusion, that is: (1) Emergency responders are unfamiliar with the

new PIH label; (2) potentially, several different identification

numbers create confusion about which hazardous material might be

causing an emergency situation; and (3) because the transition

provisions in Sec. 171.14 allow labels and placards to be used

interchangeably, the labels and placards may not be the same. CGA

believes the issue of voluntary compliance is still a safety issue

which needs to be addressed, and because of the possibility of

confusion suggested that early training, before compliance enforcement,

is necessary in this case.

CGA and ECOLAB Center generally expressed their concerns for

continued harmonization with international standards, as it relates to

the improvements to the hazardous materials identification system (HM-

206). CGA stated that while they believe RSPA recognizes the importance

of harmonization, as indicated by the statements in the preamble

referring to the UN Committee of Experts, it is not clear to them what

recourse it will have in the event RSPA's recommendations are not

acceptable to the UN. It said, ``* * * it appears we will require two

sets of placarding and labeling.'' The ECOLAB Center had similar

concerns and stated:

* * * From the perspective of a multinational company, every

divergence of hazmat regulations between the U.S. and the rest of

the world causes confusion and possibility of errors. For several

years, harmonization has been the aim and has been used to justify

hazmat labeling, packaging, and labeling [sic] changes that have

caused us significant expense. Now it appears that the U.S. will

make its own choice and hope the rest of the world follows. If this

is the beginning of a trend for the U.S., we request that you

reconsider this policy, and remain open to voluntarily extending or

eliminating the compliance date for these changes as the situation

develops.

RSPA agrees with the petitioners that the threshold quantities in

Sec. 172.313(c) and Sec. 172.301(a)(3) should be phrased in a

consistent manner. The intent is to trigger compliance with the

threshold quantity for identification number marking display under both

provisions at the levels specified for each ``or more.'' Therefore, a

revision is made in, Sec. 172.313(c) to replace the phrase ``more

than'' with ``or more'' for materials poisonous by inhalation. An

editorial revision is also made in Sec. 172.313, in paragraph (c), to

change the phrase ``Hazard Zone A and B'' to correctly read ``Hazard

Zone A or B.''

To reduce the burden of the identification number marking

requirement and in response to CGA's concerns that problems may still

exist for emergency responders in determining appropriate protective

actions to be taken when multiple identification number markings are

displayed for PIH materials, RSPA is revising Sec. 172.313(c) to

specify when a vehicle or freight container is carrying different PIH

materials for which identification number marking is required, display

of the identification number is only required for the PIH material in

the hazard zone posing the greatest risk (i.e., Zone A takes precedence

over Zone B), or if all the same hazard zone, the identification number

must be displayed for the PIH material having the greatest aggregate

gross weight. The following examples indicate whether the

identification number is required for shipments of PIH materials in

non-bulk packages at one loading facility:

Examples

(No--means no identification number required.)

Examples

(1) Less than 1,000 kg of PIH material in Hazard Zone A--No

(2) 1,000 kg of ``Methyl isocyanate, UN 2480, Zone A'' and 4,000 kg of

``Acetone, UN 1090''--Yes, for Methyl isocyanate, UN 2480, because it

is a PIH material in Zone A

(3) 1,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' 1,000 kg of

``Allyl alcohol, UN 1098, Zone B,'' and 1,000 kg of ``Methyl mercaptan,

UN 1064, Zone C''--Yes, for Methyl isocyanate, UN 2480, because it is

the PIH material with the highest hazard zone

(4) 2,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' and 1,000 kg

of ``Acrolein, inhibited, UN 1092, Zone A''--Yes, for Methyl

isocyanate, UN 2480, because it is the PIH material in the greatest

quantity

(5) 3,000 kg of ``Methyl isocyanate, UN 2480, Zone A,'' 2,000 kg of

``Acrolein, inhibited, UN 1092, Zone A,'' and 1,000 kg of ``Allyl

alcohol, UN 1098, Zone B''--Yes, for Methyl isocyanate, UN 2480,

because it is the PIH material both in the highest hazard zone and in

the greatest quantity

RSPA believes that along with the effectiveness of the new PIH

labels and placards (required for even small amounts of a PIH

material), identification numbers ensure quick recognition of certain

types and quantities of a PIH material in non-bulk packages in a

vehicle or container. Emergency responders with immediate access

(through the use of the DOT Emergency Response Guidebook or other

emergency response information carried during transportation) to

information on the potential hazards and health and safety risks

associated with PIH materials will be better able to determine

protective and mitigation actions at incidents involving these high

risk materials.

RSPA does not agree with HMAC that the threshold for PIH (1,000 kg

or more) and non-PIH materials (4,000 kg or more) should be the same.

RSPA set the threshold quantity lower for PIH materials because of the

significantly greater risk associated with these materials as opposed

to most other hazardous materials. Because of the toxicity and

volatility of a PIH material, a release would be immediately life

threatening over a large area. The choice of protective options for a

given situation depends on many factors. Whereas evacuation may be the

best option (in some cases), in-place protection may be the best course

in others. RSPA enhanced the regulations because they were inadequate

in providing vital information to communicate the presence of a PIH

material in non-bulk packages in a vehicle or container that, if

released, may potentially pose severe and immediate risks to the

public, transportation workers, and emergency response personnel.

RSPA agrees with HMAC that the new requirements may necessitate

additional training for persons offering or transporting hazardous

materials, particularly relative to the new requirements addressing

poisonous materials which pose an acute inhalation toxicity. For

compliance purposes, persons offering or transporting hazardous

materials need to continually update their training to include the new

requirements.

[[Page 16073]]

In regard to CGA's safety concerns on the issue of voluntary

compliance, RSPA believes that voluntary compliance periods have

historically helped industry in achieving compliance without

compromising the safety of emergency responders. RSPA routinely

provides voluntary or permissive compliance time frames, such as those

provided for in Sec. 171.14, before mandatory compliance is necessary.

In fact, RSPA is often requested to extend mandatory compliance dates

and various transitional provisions, while continuing to allow for

permissive voluntary compliance, such as provided for in Docket HM-181

addressing changes to hazard communication requirements, such as

marking, labeling, and placarding. The process of providing for

voluntary compliance prior to mandatory compliance has worked well and

allows industry to incrementally phase-in new requirements in an

orderly manner so that new requirements are not implemented on a

specific date without adequate time to implement new procedures or

training programs.

RSPA also acknowledges that additional training is necessary to

implement and understand the new requirements, particularly during the

transition period. RSPA also recognizes the need to help emergency

responders to more quickly recognize and identify the specific hazards

of these types of materials. RSPA has taken steps to promote better

understanding of the new requirements. For example, information is

available on the new requirements through the RSPA Internet Web site

(http://hazmat.dot.gov). Also, RSPA is revising current training

materials, such as the widely distributed DOT ``Chart 10,'' a guide to

help industry and emergency responders comprehend and apply the

requirements for marking, labeling, placarding and emergency response

information. Informational brochures are being developed to address the

new requirements for improving the system of identifying and

communicating the hazards associated with hazardous materials in

transportation.

RSPA is aware of the concerns of petitioners regarding continued

harmonization of the domestic regulations with the international

standards, and harmonization has been one of our objectives for many

years. RSPA evaluated the petitions to the January 8, 1997 and the July

22, 1997 final rules which requested that RSPA eliminate the new PIH

label and placard, or not adopt them domestically until the labels and

placards had been adopted for use in the international community. The

petitions were denied. To date, no new information has been submitted

to RSPA that would warrant reconsideration of the denial of the

petitions on this issue. To allow the affected parties more time to

come into compliance and to give the U.N. Committee of Experts more

time to consider adoption of the new PIH labels and placards, in the

July 22, 1997 final rule, RSPA changed the effective date for this

portion of the rule from October 1, 1997 to October 1, 1998. Also,

mandatory use of the new PIH labels and placards in domestic

transportation is not required until October 1, 1999 for labels and

October 1, 2001 for placards.

Over the years, RSPA has adopted classification, hazard

communication and packaging requirements recommended by the U.N.

Committee of Experts in order to facilitate international commerce.

However, in the past, RSPA has not waited for development of an

international standard before addressing pressing safety concerns such

as establishing criteria for defining and classifying materials that

are poisonous by inhalation, such as Acrolein, Methyl Isocyanate, and

Allyl Alcohol. (Final Rule under Docket HM-196; 50 FR 41092; October,

8, 1985) Similarly, RSPA does not intend to wait for development of an

international standard to gain the safety benefits deriving from a

distinctive label and placard for PIH materials that may pose a

substantial risk if released during transportation.

Harmonization does not always mean exact adoption of international

standards without any deviation. In some instances, deviations from

international standards are necessary to meet legislated requirements,

such as the domestic regulatory requirements for hazardous wastes and

hazardous substances. In other instances, the industry has often asked

for and been provided with exceptions applicable to domestic

transportation. The HMR often contains domestic exceptions that are

supported by industry. For example, RSPA has provided certain domestic

placarding exceptions that are not provided for by international

standards, such as: 1) use of a DANGEROUS placard for mixed loads of

Table 2 materials; 2) a domestic exception for the mandatory use of the

Class 9 placard; and 3) exception from placarding small loads of Table

2 materials in non-bulk packagings (i.e., 1,001 pounds or less does not

require placarding). RSPA will continue to work toward harmonization;

however, as in the past, RSPA will continue to provide domestic

exceptions when warranted and specify additional requirements when

warranted.

C. RADIOACTIVE PLACARD Footnote to Placarding Table 1

RSPA received an inquiry regarding the footnote in Sec. 172.504(e),

placarding Table 1. In the January 8, 1997 final rule, footnote ``1''

regarding placarding for exclusive use shipments of low specific

activity radioactive materials contains an incorrect section reference.

In this final rule, footnote ``1'' is revised to read: ``1 RADIOACTIVE

placard also is required for exclusive use shipments of low specific

activity material and surface contaminated objects transported in

accordance with Sec. 173.427(b)(3) or (c).''

D. Carrier Emergency Information Contact Number for an Unattended Motor

Vehicle Disconnected From Its Motive Power

In the January 8, 1997 final rule, RSPA added alternatives for

compliance with the carrier emergency information contact number

requirements for an unattended motor vehicle disconnected from its

motive power and parked at a location other than a consignee's,

consignor's, or carrier's facility. In that situation, the carrier must

mark its telephone number on the motor vehicle, place shipping papers

and emergency response information on the vehicle or have the shipping

paper and emergency response information available as required in

Sec. 172.602(c)(2). In the July 22, 1997 final rule, RSPA provided an

exception from requirements when the motor vehicle is marked with the

identification number of each hazardous material loaded inside the

vehicle, and the identification number marking is visible on the

outside of the motor vehicle.

Roadway Express had concerns with the methods available for marking

a carrier's telephone number on a vehicle disconnected from its motive

power when motor carriers use rental and ``pool'' equipment for varying

periods of time in order to meet the demands of each person who offers

a hazardous material for transportation. It stated that it is

impractical to expect carriers to mark a telephone number on a piece of

equipment that may be in the carrier's control for only a few days, and

suggests revising the requirements in Sec. 172.606(b)(2) to allow

affixing or attaching a device, such as a plastic tag, directly to the

brake hose or ``gladhand'' connection.

HMAC and Roadway Express petitioned RSPA to expand this exception

for a marked vehicle to

[[Page 16074]]

include ``all placarded or marked trailers, semi-trailers, or freight

containers.'' Roadway Express stated that on the average, LTL carriers

consolidate 30 individual shipments on a transport vehicle and that

when non-bulk packages of hazardous materials comprise even a small

percentage of the total load, the variety of materials contained in one

consignment may make marking individual identification numbers

burdensome and impractical. HMAC stated:

While documentation on trailers or freight containers that are not

otherwise placarded or marked may be required, those which already

display placards or identification number markings shouldn't also be

required to have telephone numbers or shipping papers. Therefore,

HMAC recommends that the exception granted in Sec. 172.606(c) be

expanded to include ``all placarded or marked trailers, semi-

trailers, or freight containers.''

HMAC believes that the regulations for display of a carrier's

telephone number or the availability of shipping papers on certain

trailers and freight containers removed from motive power are not

responsive to the problems encountered by the LTL segment of the

transportation industry. HMAC stated that the new requirements will

make it more difficult for motor carriers to use rental trailers to

conduct business. It said, for example, one particular motor carrier

used nearly 6,000 rental trailers in one month in order to accommodate

the demands of each person who offers a hazardous material for

transportation, and thus display of the motor carrier's telephone

number is not possible on such trailers, and rental trailers normally

do not have a pouch or pocket to store shipping papers.

Roadway Express also said that because shipping papers and

emergency response information documents are also a means of complying

with Sec. 172.606(b)(2) and must be readily available on the transport

vehicle, document maintenance and security provisions, as it relates to

proprietary information (such as the name and address of both the

persons who offer a hazardous material for transportation and the

carrier's customer), should be considered.

In this final rule, RSPA is editorially revising the introductory

text of Sec. 172.606 and paragraph (a) and is revising paragraph (b)

for clarity and in response to petitioners. RSPA notes that the

provision adopted in Sec. 172.606(b)(2) in the January 8, 1997 final

rule, allows a carrier to display only the carrier's telephone number

and does not require disclosure of information which the carrier may

consider proprietary. The carrier information contact requirement

applies to a trailer or freight container-on-chassis dropped at a

public place such as a truck stop or motel, but does not apply when a

vehicle is dropped at a facility covered by the provisions of

Sec. 172.602(c)(2), such as a carrier's facility or a marine terminal.

RSPA notes under Sec. 172.602(c)(2), a facility may be operated by

someone other than a carrier, consignor, or consignee. In this final

rule, RSPA is revising the introductory language in paragraph (b) of

Sec. 172.606 to clarify this. RSPA is removing the provision in

paragraph (b)(1) because that requirement already applies to facilities

under Sec. 172.602(c)(2) and is not applicable outside such a facility.

Also, in response to these petitions, RSPA is revising Sec. 172.606(b),

to clarify that the carrier's telephone number may be marked on the

exterior of the vehicle, or attached to the vehicle on a label, tag or

sign at the brake hose or electrical connection.

RSPA reminds motor carriers of the requirement in the Federal Motor

Carrier Safety Regulations, 49 CFR 397.5, which requires, with limited

exceptions, that a motor vehicle required to be placarded must be

attended by its driver at all times when the motor vehicle is located

on a public street or shoulder of a public highway. Based on this

requirement, and taking into account longstanding provisions which

apply to facilities under Sec. 172.602(c)(2), RSPA believes the carrier

information contact requirement will not pose an unreasonable burden on

motor carriers.

RSPA does not agree with the petitioners in regard to expanding the

exception in Sec. 172.606(c) to include any placarded motor vehicle

disconnected from its motive power. A placard (e.g., FLAMMABLE, POISON)

provides basic identification regarding the hazard of a material, but

it does not communicate specific information regarding the contents of

a vehicle as do shipping papers or identification number markings. The

methods currently prescribed in Sec. 172.606(b) facilitate access to

more detailed response, information for the hazardous material in such

a vehicle.

RSPA acknowledges Roadway Express' concern relative to security

provisions as it relates to information on shipping papers that a

carrier considers ``proprietary,'' such as the name and address of its

customers. RSPA provided a number of options for compliance, as

follows: (1) A carrier's telephone number marked or attached to a motor

vehicle, (2) a copy of a shipping paper and emergency response

information attached to a motor vehicle, or (3) an identification

number marking displayed on the exterior of a motor vehicle. None of

these options require disclosure of the name and address of consignors

or consignees. RSPA encourages the trucking industry to develop uniform

methods for displaying information required by Sec. 172.606.

E. Prohibited Placarding (Slogans)

In the January 8, 1997 final rule, RSPA revised Sec. 172.502 to

prohibit extraneous information (e.g., ``Drive Safely'') on placard-

type displays or in placard holders. As modified in the July 22, 1997

final rule, RSPA has specified that this prohibition does not apply

until October 1, 2001, to a slogan which was permanently marked on a

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

August 21, 1997. This should provide sufficient notice and prevent the

unintended application of an immediate prohibition to a slogan that may

have been permanently marked on a transport vehicle, bulk packaging or

freight container between October 1, 1996 and issuance of the January

8, 1997 final rule.

ECOLAB Center petitioned RSPA to allow an indefinite period until

placards must be replaced in order to remove extraneous information or

slogans (e.g., ``Drive Safely''). ECOLAB believes that prohibiting such

slogans on placards and in placard holders is not an enhancement of

safety, and said:

Due to the lowering of the weight for which a class placard is

required, and the requirement to placard for a large quantity of

non-bulk materials, the number of occasions when a safety slogan

placard may be displayed will be dramatically reduced. Would not a

reasonable compromise be to let existing placard sets be used until

retirement or replacement?

RSPA denies the petition. RSPA believes it has provided a

reasonable period for industry to comply with the requirement to

remove, cover, or obliterate slogans or other similar communications on

placard-type displays or in placard holders on transport vehicles and

freight containers. With the extension of the overall effective date of

the rule, October 1, 1998, and the compliance date for mandatory

removal of these signs, October 1, 2001, affected businesses are

provided sufficient time to make conversion.

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is considered a non-significant regulatory action

under section 3(f) of Executive Order 12866

[[Page 16075]]

and, therefore, was not reviewed by the Office of Management and

Budget.

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

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

documents are available for review in the public docket. The July 22,

1997, final rule made relatively minor, incremental changes in the

regulations concerning placarding and other means of communicating the

hazards of materials in transportation, and in most cases clarifies and

relaxes provisions of the January 8, 1997 final rule. This final rule

denies an appeal under 49 CFR 106.38, and several petitions for

reconsideration of certain aspects of the July 22, 1997 final rule, and

makes several editorial revisions. Accordingly, no additional

regulatory evaluation was performed.

B. Executive Order 12612

The January 8, 1997 and the July 22, 1997 final rules and this

final rule were analyzed in accordance with the principles and criteria

contained in Executive Order 12612 (``Federalism''). The Federal law

expressly preempts State, local, and Indian tribe requirements

applicable to the transportation of hazardous material that cover

certain subjects and are not substantively the same as Federal

requirements. 49 U.S.C. 5125(b)(1). These subjects are:

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

material.

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

placarding of hazardous material.

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

related to hazardous material and requirements respecting the number,

content, and placement of those documents.

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

unintentional release in transportation of hazardous material.

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

reconditioning, repairing, or testing of a package or container

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

transporting hazardous material.

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

concerning these subjects unless the non-Federal requirements are

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

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

federalism assessment is not warranted.

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

regulation concerning any of the covered subjects, DOT must determine

and publish in the Federal Register the effective date of Federal

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

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

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

effective date of Federal preemption for these requirements will be

October 1, 1998.

C. Regulatory Flexibility Act

This final rule, which responds to petitions for reconsideration

and an appeal under 49 CFR 106.38, makes several editorial revisions

for clarification of the regulations. Although this final rule applies

to each person who offers a hazardous material for transportation and

all carriers of hazardous materials, some of whom are small entities,

the requirements contained herein will not result in significant

economic impacts. Therefore, I certify that this final rule will not

have a significant economic impact on a substantial number of small

entities.

D. Paperwork Reduction Act

The information collection requirements in 49 CFR Parts 172 through

177 pertaining to shipping papers have been approved under OMB approval

number 2137-0034. This final rule makes only editorial corrections and

does not increase any burden to provide information. Under the

Paperwork Reduction Act of 1995, no person is required to respond to a

collection of information unless it displays a valid OMB control

number.

E. Regulation Identifier Number (RIN)

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

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

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

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

Unified Agenda.

List of Subjects in 49 CFR Part 172

Education, Hazardous materials transportation, Hazardous waste,

Labeling, Marking, Packaging and containers, Reporting and

recordkeeping requirements.

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

follows:

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

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

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

follows:

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

2. In Sec. 172.301, as amended at 62 FR 39404, effective October 1,

1998, paragraph (a)(3) is revised to read as follows:

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

(a) * * *

(3) Large quantities of a single hazardous material in non-bulk

packages. A transport vehicle or freight container containing only a

single hazardous material in non-bulk packages must be marked, on each

side and each end as specified in the Secs. 172.332 or 172.336, with

the identification number specified for the hazardous material in the

Sec. 172.101 Table, subject to the following provisions and

limitations:

(i) Each package is marked with the same proper shipping name and

identification number;

(ii) The aggregate gross weight of the hazardous material is 4,000

kg (8,820 pounds) or more;

(iii) All of the hazardous material is loaded at one loading

facility;

(iv) The transport vehicle or freight container contains no other

material, hazardous or otherwise; and

(v) The identification number marking requirement of this paragraph

(a)(3) does not apply to Class 1, Class 7, or to non-bulk packagings

for which identification numbers are not required.

* * * * *

3. In Sec. 172.313, as amended at 62 FR 39405, effective October 1,

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

Sec. 172.313 Poisonous hazardous materials.

* * * * *

(c) A transport vehicle or freight container containing a material

poisonous by inhalation in non-bulk packages shall be marked, on each

side and each end as specified in Sec. 172.332 or Sec. 172.336, with

the identification number specified for the hazardous material in the

Sec. 172.101 Table, subject to the following provisions and

limitations:

(1) The material is in Hazard Zone A or B;

(2) The transport vehicle or freight container is loaded at one

facility with

[[Page 16076]]

1,000 kg (2,205 pounds) or more aggregate gross weight of the material

in non-bulk packages marked with the same proper shipping name and

identification number; and

(3) If the transport vehicle or freight container contains more

than one material meeting the provisions of this paragraph (c), it

shall be marked with the identification number for one material,

determined as follows:

(i) For different materials in the same hazard zone, with the

identification number of the material having the greatest aggregate

gross weight; and

(ii) For different materials in both Hazard Zones A and B, with the

identification number for the Hazard Zone A material.

Sec. 172.504 [Amended]

4. In Sec. 172.504(e), as amended at 62 FR 39407, effective October

1, 1998, footnote 1 in Table 1 is amended to read as follows:

``\1\RADIOACTIVE placard also required for exclusive use shipments

of low specific activity material and surface contaminated objects

transported in accordance with Sec. 173.427(b)(3) or (c) of this

subchapter.''

5. In Sec. 172.606, as added at 52 FR 1234 and amended at 62 FR

39409, effective October 1, 1998, the introductory text is removed, and

paragraphs (a) and (b) are revised to read as follows:

Sec. 172.606 Carrier information contact.

(a) Each carrier who transports or accepts for transportation a

hazardous material for which a shipping paper is required shall

instruct the operator of a motor vehicle, train, aircraft, or vessel to

contact the carrier (e.g., by telephone or mobile radio) in the event

of an incident involving the hazardous material.

(b) For transportation by highway, if a transport vehicle, (e.g., a

semi-trailer or freight container-on-chassis) contains hazardous

material for which a shipping paper is required and the vehicle is

separated from its motive power and parked at a location other than a

facility operated by the consignor or consignee or a facility (e.g., a

carrier's terminal or a marine terminal) subject to the provisions of

Sec. 172.602(c)(2), the carrier shall--

(1) Mark the transport vehicle with the telephone number of the

motor carrier on the front exterior near the brake hose and electrical

connections or on a label, tag, or sign attached to the vehicle at the

brake hose or electrical connection; or

(2) Have the shipping paper and emergency response information

readily available on the transport vehicle.

* * * * *

Issued in Washington, D.C. on March 26, 1998 under authority

delegated in 49 CFR Part 1.

Kelley S. Coyner,

Acting Administrator.

[FR Doc. 98-8436 Filed 3-31-98; 8:45 am]

BILLING CODE 4910-60-P