[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Rules and Regulations]
[Pages 16070-16076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8436]



[[Page 16069]]

_______________________________________________________________________

Part IX





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



_______________________________________________________________________



49 CFR Part 172



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

  Federal Register/Vol. 63, No. 62/Wednesday, April 1, 1998/Rules and 
Regulations  

[[Page 16070]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 172

[Docket No. HM-206]
RIN 2137-AB75


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

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

ACTION: Final rule; technical amendments and responses to petitions for 
reconsideration and an appeal.

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

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