[Federal Register Volume 64, Number 179 (Thursday, September 16, 1999)]
[Rules and Regulations]
[Pages 50260-50263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24176]



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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 171

[RSPA-99-6195 (Docket No. HM-206D)]
RIN 2137-AD37


Hazardous Materials: Limited Extension of Requirements for 
Labeling Materials Poisonous by Inhalation (PIH)

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

ACTION: Interim final rule.

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SUMMARY: RSPA is providing a limited exception, until October 1, 2001, 
from requirements to place the new POISON INHALATION HAZARD or POISON 
GAS labels on packages that are intended for transportation in 
international commerce. The exception applies only to Division 2.3 
materials and Division 6.1 liquids in Hazard Zone A or B that are 
loaded into a freight container or closed transport vehicle that is 
placarded and marked with the identification number, as currently 
required for those materials. This interim final rule is intended to 
prevent delays and frustrated shipments for these hazardous materials 
when transported by vessel under the provisions of the International 
Maritime Dangerous Goods Code (IMDG Code), or by motor vehicle or rail 
car to or from Canada.

DATES: Effective dates: This final rule is effective on October 1, 
1999.
    Comment date: Comments must be received November 15, 1999.

ADDRESSES: Written comments: Address written comments to the Dockets 
Management System, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW, Washington, DC 20590-0001. Comments should identify 
the docket number RSPA-99-6195 (HM-206D) and should be submitted in two 
copies. Persons wishing to receive confirmation of receipt of their 
comments should include a self-addressed stamped postcard.
    Dockets Management System is located on the Plaza Level of the 
Nassif Building at the Department of Transportation at the above 
address. Public dockets may be reviewed between the hours of 10 a.m. 
and 5 p.m., Monday through Friday, excluding Federal holidays. In 
addition, the public can review comments by accessing the Docket 
Management System through the DOT home page at http://dms.dot.gov. 
Comments may also be submitted to the docket electronically by logging 
onto the Dockets Management System website at http://dms.dot.gov. Click 
on ``Help & Information'' to obtain instructions for filing the 
document electronically. In every case, the comment should refer to the 
Docket number ``RSPA-99-6195''. Comments may also be submitted by fax 
by calling (202) 366-3012.

FOR FURTHER INFORMATION CONTACT: Helen L. Engrum, Office of Hazardous 
Materials Standards, (202) 366-8553, Research and Special Programs 
Administration, U.S. Department of Transportation, 400 Seventh Street, 
SW, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    In the final rules adopted under Docket No. HM-206, RSPA specified 
requirements for display of: (1) Identification number marking on a 
transport vehicle or freight container that is loaded at one loading 
facility with more than 1,000 kg (2,205 pounds) of materials poisonous 
by inhalation (PIH), on and after October 1, 1998; (2) new labels to be 
affixed to non-bulk packagings containing PIH materials, on and after 
October 1, 1999; and (3) new placards to be displayed on transport 
vehicles and freight containers containing PIH materials, on and after 
October 1, 2001. RSPA also provided that, if the words ``INHALATION 
HAZARD'' appear on the new PIH label or placard, those words need not 
also be marked on the package (See 49 CFR172.313). (Final rules, 62 FR 
1217 (January 8, 1997), 62 FR 39398 (July 22, 1997), 63 FR 16070 (April 
1, 1998).) These requirements were adopted in response to a mandate in 
section 25 of the Hazardous Materials Transportation Uniform Safety Act 
of 1990 (Pub. L. 101-615) that methods of improving placarding be 
considered including, inter alia, identification of appropriate 
emergency response procedures through symbols on placards and methods 
to make placards more visible.
    In adopting the PIH marking, label, and placard requirements, RSPA 
discussed the extremely hazardous nature of these materials and its 
belief that ``the existing POISON and POISON GAS label and placard are 
not adequate in communicating the inhalation hazard of these 
materials.'' 63 FR at 1218. RSPA also referred to its efforts since 
1985 ``toward enhancing safety in the transportation of PIH materials 
by establishing a complete system of transportation controls for these 
materials, including an improved communication of their presence.'' 62 
FR at 39400. As noted in the final rule, a majority of the persons 
submitting comments on this issue ``supported adoption of the 
distinctive PIH labels and placards,'' although a number of commenters 
urged RSPA to delay implementation until the United Nations Committee 
of Experts on the Transport of Dangerous Goods (UN Committee) had also 
adopted the new PIH label and placard. This matter is pending before 
the UN Committee.

II. Petition for Rulemaking

    On June 17, 1999, the Hazardous Materials Advisory Council (HMAC) 
filed a petition for rulemaking (P-1385) to delay implementation of the 
new PIH labels adopted under Docket HM-206 until the UN Committee 
recommends adoption of these requirements. HMAC suggested an 
implementation date of no sooner than October 1, 2001 to coincide with 
the effective date for PIH placards and to allow the UN Committee more 
time to discuss this issue. HMAC stated:

    By introducing PIH labels that have not been accepted by the UN 
Committee, the unintended consequence may well be to cause confusion 
with international shipments of these materials, thereby undermining 
their safe transport. Packages of PIH material being imported into 
the US and labeled in accordance with the IMDG Code by sea mode will 
not be in compliance with the new US labeling requirement. Shippers 
will be forced to re-label these packages at port areas where 
provision to accomplish this is scarce and the possibility for 
errors and mishandling increase.

    HMAC also stated there are major questions regarding the 
acceptability of the new labels in other countries. HMAC said that re-
labeling may be required to make the packages comply with other 
regional or national regulations, and that such a situation will not 
enhance safety, which is the intent of introducing the new label. 
According to HMAC, a Canadian member indicated that lack of 
international coordination may cause serious problems with compliance 
and that members outside of the U.S. have questioned the U.S. 
commitment to worldwide harmonization of dangerous goods transport 
regulation. HMAC also raised the issue of inconsistency with the intent 
of Title IV of the Trade Agreements Act of 1979.

III. RSPA Response to Petition for Rulemaking

    The HMR provide for a nationwide system of communication of the 
presence of hazardous materials which includes shipping papers, 
marking, labeling, placarding, and emergency response information. 
These requirements are designed to provide

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fire and emergency response personnel, the public, and transport 
workers with information in the event of transportation incidents 
involving hazardous materials. In responding to incidents involving 
hazardous materials, emergency response personnel must first identify 
the specific chemical hazards facing them before approaching the 
incident site and attempting remedial action. An inappropriate response 
to an incident involving inadequately identified hazardous materials 
can significantly endanger individuals, the surrounding community, and 
the environment.
    The unique design of the PIH labels and placards substantially 
improves the identification of PIH materials during transportation. It 
is important that there be distinctive warnings that will lead to 
appropriate response actions for these high risk materials. The risk 
posed by PIH materials such as acrolein (inhibited), allyl alcohol, 
methyl isocyanate, or acetone cyanohydrin (stabilized), is 
substantially greater than the risk posed by other poisonous materials 
such as benzonitrile, chloroform, ethyl bromide, or tetrachloroethane. 
Yet prior to implementation of the Docket HM-206 requirements, all of 
these materials were identified by display of the same labels and 
placards.
    RSPA understands that PIH labels and placards are not yet formally 
recognized outside the jurisdiction of the U.S., and that the UN 
Committee has yet to act upon the merits of our proposal on this 
subject. We also recognize that we should strive for harmonious hazard 
communication requirements, when appropriate. However, differences have 
been recognized as necessary and appropriate in a number of instances. 
For example, there are domestic exceptions from placarding for Class 9 
materials, and for less than 1,001 pounds of certain materials. In 
addition, the HMR provide a domestic exception which permits use of 
DANGEROUS placards in place of placards for certain classes of 
hazardous materials loaded in transport vehicles or freight containers. 
As these exceptions are recognized and accepted as being appropriate, 
RSPA is certain that the improved communication of hazard for high risk 
PIH materials also is necessary and appropriate.
    Much of the information and issues raised in HMAC's petition have 
already been considered and addressed during the rulemaking proceeding 
in Docket HM-206. RSPA believes HMAC has not presented justification 
for either its request to postpone implementation of the requirement 
for PIH labels until the UN Committee has had the opportunity to judge 
the merits of the proposal, or for its recommendations that 
implementation of the requirements be deferred until October 1, 2001 
for both domestic and international transportation. Further, RSPA does 
not agree that the requirements are inconsistent with the language and 
intent of Title IV of the Trade Agreements Act of 1979. However, RSPA 
agrees with HMAC that there is the possibility for errors and 
mishandling at port areas for shipments made in accordance with the 
IMDG Code, and there may be instances where the new labels are not 
recognized in other countries, such as shipments to or from Canada. 
RSPA believes there is a potential for delayed or frustrated shipments 
for these PIH materials when transported by vessel under the provisions 
of the IMDG Code as authorized by 49 CFR 171.12, or to or from Canada 
under the provisions of 49 CFR 171.12a. Also, the potential for 
exposure would be increased for transportation workers if they must 
further handle and re-label these extremely toxic and highly volatile 
materials. For these reasons, RSPA is granting the HMAC petition in 
part, and denies other parts of the petition.
    In order to facilitate international transportation in commerce of 
PIH materials, RSPA is providing a limited exception, until October 1, 
2001, from the requirement to display PIH labels on packages. The 
exception applies only to PIH materials in non-bulk packages in a 
closed transport vehicle or freight container that displays placards 
and identification numbers for the PIH materials in other than domestic 
transportation. Since the closed vehicles containing PIH materials in 
non-bulk packages in containerized loads moving in international 
commerce will, while in the United States, be identified as containing 
such materials by the display of identification numbers, RSPA does not 
believe that safety within the United States will be significantly 
reduced by adoption of this rule. Therefore, in this interim final 
rule, the provisions in Secs. 171.12 and 171.12a are revised to provide 
a limited exception, until October 1, 2001, from the requirement to 
display the PIH labels on packages, provided the PIH materials are in 
non-bulk packages in closed transport vehicles or freight containers 
placarded and marked with an identification number.
    Because use of the new PIH labels would otherwise be required on 
October 1, 1999, it is impossible for RSPA to publish an NPRM and 
receive comments before issuing this interim final rule or to provide 
at least 30 days before the effective date of this interim final rule. 
Delay in issuing the interim final rule would create an undue hardship 
on the international regulated community and have the potential to 
disrupt and frustrate the shipment of these high hazard materials by 
vessel, or by motor vehicle or rail car to or from Canada.
    Although an opportunity for public comment on this particular 
approach has not been provided prior to issuing this interim final 
rule, RSPA encourages interested persons to participate in this 
rulemaking by submitting comments containing information or views 
concerning this interim final rule. Commenters opposing adoption of 
this rule should provide a reason for their opposition. RSPA will 
consider all public comments.

IV. Editorial Correction

    An editorial correction is being made to remove paragraph (e) in 49 
CFR 171.14, which contains a provision postponing the compliance date 
for use of the new PIH labels an additional year, from October 1, 1998 
to October 1, 1999. Except as provided for in this rule for shipments 
by vessel in accordance with 49 CFR 171.12, or to or from Canada in 
accordance with 49 CFR 171.12a, on and after October 1, 1999, packages 
containing PIH materials must be labeled as required by the HMR. 
Therefore, paragraph (e) is obsolete and it is removed.

V. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This interim final rule is not a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. A regulatory 
evaluation prepared for the January 8, 1997 final rule is available in 
the Docket (HM-206). Implementation of this labeling exception for PIH 
materials provided by this rulemaking should not result in any 
additional costs. Any savings associated with avoiding delay or 
frustration of shipments is considered so minimal as to not warrant 
revision of the regulatory evaluation.

B. Executive Order 12612

    The final rule has been analyzed in accordance with the principles 
and criteria in Executive Order 12612 (``Federalism''). Federal 
hazardous materials transportation law, 49 U.S.C. 5101-5127 contains 
express preemption provisions at 49 U.S.C. 5125 and

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expressly preempts State, local, and Indian tribe requirements 
applicable to the transportation of hazardous materials that cover 
certain subjects and are not substantively the same as Federal 
requirements. These subjects are:
    (A) The designation, description, and classification of hazardous 
material.
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials.
    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements respecting the number, 
content, and placement of those documents.
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) The design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a package or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule preempts State, local, or Indian tribe requirements 
concerning these subjects unless the non-Federal requirements are 
``substantively the same'' (see 49 CFR 107.202(d)) as the Federal 
requirements. RSPA lacks discretion in this area, and preparation of a 
federalism assessment is not warranted.
    Federal law 49 U.S.C. 5125(b)(2) provides that if DOT issues a 
regulation concerning any of the covered subjects, DOT must determine 
and publish in the Federal Register the effective date of Federal 
preemption. The effective date may not be earlier than the 90th day 
following the date of issuance of the final rule and not later than two 
years after the date of issuance. RSPA has determined that the 
effective date of Federal preemption for these requirements will be 
December 15, 1999.

C. Executive Order 13084

    RSPA believes this change will not significantly or uniquely affect 
the communities of Indian tribal governments under the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Therefore, the funding 
and consultation requirements of this Executive Order would not apply.

D. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), RSPA 
must consider whether this interim final rule would have a significant 
economic impact on a substantial number of small entities. This rule 
provides limited relief to certain shippers and carriers of materials 
poisonous by inhalation and will have no significant economic impacts. 
I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. This rule does not contain any new information 
collection requirements.

F. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading of this document to cross-
reference this action with the Unified Agenda.

G. Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more to either State, local, or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objectives of the rule.

H. Impact on Business Processes and Computer Systems

    Many computers that use two digits to keep track of dates will, on 
January 1, 2000, recognize ``double zero'' not as 2000 but as 1900. 
This glitch, Year 2000 problem, could cause computers to stop running 
or to start generating erroneous data. The year 2000 problem poses a 
threat to the global economy in which Americans live and work. With the 
help of the President's Council on Year 2000 Conversion, Federal 
agencies are reaching out to increase awareness of the problem and to 
offer support. RSPA does not want to impose new requirements that would 
mandate business process changes when the resources necessary to 
implement those requirements would otherwise be applied to the Year 
2000 problem.
    This final rule does not contain business process changes and does 
not require modifications to computer systems for computer generated 
labels. The rule does not affect organizations' ability to respond to 
the Year 2000 problem and provides some relief to the international 
regulated community, until October 1, 2001, when mandatory compliance 
with the new PIH labeling is required.

List of Subjects in 49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 49 CFR part 171 is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR part 1.

    2. Section 171.12 is amended by adding paragraph (b)(8)(iv), and by 
revising paragraphs (b)(8)(ii) and (iii) to read as follows:


Sec. 171.12  Import and export shipments.

* * * * *
    (b) * * *
    (8) * * *
    (ii) The material must be packaged in accordance with the 
requirements of this subchapter;
    (iii) Except as provided in paragraph (b)(8)(iv) of this section, 
the package must be marked in accordance with Sec. 172.313 of this 
subchapter and labeled and placarded with ``POISON INHALATION HAZARD'' 
or ``POISON GAS'', as appropriate, in accordance with subparts E and F, 
respectively, of part 172 of this subchapter;
    (iv) Until October 1, 2001, the package may be labeled in 
accordance with the IMDG Code if transported in a closed transport 
vehicle or freight container marked with identification numbers for the 
materials in any quantity in the manner specified in paragraphs (c) and 
(c)(3) of Sec. 172.313 of this subchapter and placarded as required by 
subpart F of part 172 of this subchapter.
* * * * *
    3. Section 171.12a is amended by adding paragraph (b)(5)(iv), and 
by revising paragraphs (b)(5)(ii) and (iii) to read as follows:


Sec. 171.12a  Canadian shipments and packagings.

* * * * *
    (b) * * *
    (5) * * *
    (ii) The material must be packaged in accordance with the 
requirements of this subchapter;
    (iii) Except as provided in paragraph (b)(5)(iv) of this section 
and for a

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package containing anhydrous ammonia, the package must be marked in 
accordance with Sec. 172.313 of this subchapter and labeled and 
placarded with ``POISON INHALATION HAZARD'' or ``POISON GAS'', as 
appropriate, in accordance with subparts E and F, respectively, of part 
172 of this subchapter. For shipments of anhydrous ammonia, the 
shipping paper must contain an indication that the markings, labels and 
placards have been applied in conformance with the TDG Regulations and 
this paragraph (b)(5);
    (iv) Until October 1, 2001, the package may be labeled in 
accordance with the TDG Regulations if transported in a closed 
transport vehicle or freight container marked with identification 
numbers for the materials in any quantity in the manner specified in 
paragraphs (c) and (c)(3) of Sec. 172.313 of this subchapter and 
placarded as required by subpart F of part 172 of this subchapter.
* * * * *


Sec. 171.14  [Amended]

    4. In Sec. 171.14, paragraph (e) is removed.

    Issued in Washington, DC, on September 13, 1999, under the 
authority delegated in 49 CFR part 1.
Stephen D. Van Beek,
Deputy Administrator.
[FR Doc. 99-24176 Filed 9-15-99; 8:45 am]
BILLING CODE 4910-60-P