[Federal Register Volume 66, Number 163 (Wednesday, August 22, 2001)]
[Rules and Regulations]
[Pages 44252-44256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21002]
[[Page 44251]]
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Part III
Department of Transportation
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Research and Special Programs Administration
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49 CFR Parts 171 and 172
Hazardous Materials: Exceptions From Labeling and Placarding Materials
Poisonous by Inhalation (PIH); Final Rule
Federal Register / Vol. 66, No. 163 / Wednesday, August 22, 2001 /
Rules and Regulations
[[Page 44252]]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171 and 172
[RSPA-99-6195 (Docket No. HM-206D)]
RIN 2137-AD37
Hazardous Materials: Exceptions From Labeling and Placarding
Materials Poisonous by Inhalation (PIH)
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: In an interim final rule published on September 16, 1999, and
amended on September 24, 1999, RSPA provided a limited exception, until
October 1, 2001, from requirements to place new POISON INHALATION
HAZARD or POISON GAS labels on packages of PIH materials to facilitate
international transportation. This final rule responds to two comments
received on the interim final rule, extends the provisions of the
interim final rule, and provides additional exceptions from
requirements to place new POISON INHALATION HAZARD or POISON GAS labels
and placards on certain packages and transport vehicles in
international transportation.
DATES: This final rule is effective on October 1, 2001. However,
compliance with the regulations is authorized immediately.
FOR FURTHER INFORMATION CONTACT: Helen L. Engrum, Office of Hazardous
Materials Standards, Research and Special Programs Administration, U.S.
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590-0001, (202) 366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
On January 8, 1997, the Research and Special Programs
Administration (RSPA, we) published a final rule in the Federal
Register (62 FR 1217) under Docket HM-206 amending the hazard
communication requirements in the Hazardous Materials Regulations (HMR;
49 CFR parts 171-180) to enhance the identification of hazardous
materials transported in commerce. Provisions of the final rule
included two new placards and two new labels for materials poisonous
(toxic) by inhalation (PIH), one label and placard for Division 2.3
gases, and one label and placard for Division 6.1 liquids. We issued
the final rule in response to Section 25 of the Hazardous Materials
Transportation Uniform Safety Act of 1990 (Public Law 101-615), which
required the Secretary of Transportation to initiate a rulemaking to
determine methods to improve hazard communication, including the
existing system of placarding vehicles transporting hazardous
materials. We amended the final rule on July 22, 1997 (62 FR 39398) and
on April 1, 1998 (63 FR 16070), to make editorial corrections and
technical amendments and to respond to petitions for reconsideration
and an appeal under 49 CFR 106.38. The rule became effective October 1,
1998 and specified the following mandatory compliance dates: October
1,1999 for use of the new PIH labels and October 1, 2001 for use of the
new PIH placards.
The United Nations Committee of Experts on the Transport of
Dangerous Goods has not yet endorsed adoption of the PIH labels and
placards. Further, neither the International Maritime Dangerous Goods
Code (IMDG Code) nor the Canadian Transport of Dangerous Goods
Regulations (TDGR) incorporate the PIH labels and placards. Therefore,
to facilitate international transportation of PIH materials, we
published an interim final rule (IFR) on September 16, 1999 (64 FR
50260) to provide a limited exception until October 1, 2001, from the
requirement to display PIH labels on packages. The exception permits
non-bulk packages of PIH materials in a closed transport vehicle or
freight container to be labeled in accordance with the IMDG Code or
with the TDGR provided the transport vehicle or freight container is
placarded and marked with the identification number for the PIH
material in accordance with requirements in the HMR. This exception was
intended to facilitate international transportation of PIH materials
when transported by vessel under the provisions of the IMDG Code or by
motor vehicle or rail car to or from Canada. We issued the IFR to
minimize delays and frustrated shipments based on concern that
shipments of PIH materials could encounter some difficulty,
particularly in certain foreign ports.
On September 24, 1999 (64 FR 51719), the IFR was amended to correct
an inadvertent error in Sec. 171.12a regarding Canadian shipments of
PIH materials. The September 24, 1999 corrections provided for the
transportation of packages containing PIH materials between the United
States and Canada in conformance with the labeling requirements in the
TDGR.
Because the new PIH labels would otherwise have been required on
October 1, 1999, it was not feasible for us to publish an NPRM
proposing the limited exception and receive comments before issuing the
IFR, or to provide at least 30 days before the effective date of the
IFR. Delay in issuing the IFR would have potentially frustrated the
shipment of these high hazard materials by vessel, or by motor vehicle
or rail car to or from Canada. However, we encouraged interested
parties to participate in this rulemaking by submitting comments on the
IFR. We received two comments--from the Hazardous Materials Advisory
Council (HMAC) and Elf Atochem North America, Inc. (Elf Atochem).
In response to the two comments and to facilitate international
transportation of PIH materials, in this final rule we are providing
the following provisions and exceptions for international shipments:
(1) An exception from PIH labeling requirements for certain non-bulk
and bulk packagings in closed transport vehicles or freight containers
transported by vessel or by motor vehicle or rail car to or from
Canada; (2) an exception from PIH labeling requirements for certain
non-bulk and bulk packagings in closed transport vehicles or freight
containers transported by vessel or by motor vehicle or rail car to or
from Mexico; and (3) an exception from PIH placarding requirements on a
transport vehicle or freight container carrying PIH materials within a
single port area. PIH placards are required on a packaging, transport
vehicle, or freight container carrying PIH materials in the United
States.
II. Provisions in This Final Rule
A. Extension of Exceptions From PIH Labeling and Placarding
Requirements
We adopted the new PIH labeling and placarding requirements because
of the extreme risks associated with transportation of PIH materials
and our belief that the old POISON and POISON GAS labels and placards
are not adequate to communicate the inhalation hazard of these
materials. We are continuing to work for international recognition of
the PIH labels and placards. However, the United Nations Committee of
Experts on the Transport of Dangerous Goods has not yet adopted the PIH
labels and placards nor are they permitted under the IMDG Code and the
TDGR. We continue to believe that the PIH labels and placards
facilitate rapid and accurate identification of these extremely toxic
materials by emergency responders and transportation workers and, thus,
enhance the safe transportation of these materials.
However, in the absence of similar labeling and placarding
provisions in the UN Recommendations and other
[[Page 44253]]
international standards based on those recommendations, the potential
for delayed or frustrated international shipments, due to confusion
over labeling and placarding differences or the need to remove and
replace labels, will exist on October 1, 2001. On September 30, 1999,
the limited exception from PIH labeling of international shipments
provided by the September 16, 1999 IFR expires, and mandatory
compliance for use of the PIH placard takes effect.
We are issuing this final rule to provide additional labeling and
placarding exceptions for certain shipments of PIH materials to
facilitate international transportation of these materials until such
time as the United Nations Committee of Experts on the Transport of
Dangerous Goods amends the UN Recommendations to either adopt or permit
the use of the U.S. PIH labels and placards. The exceptions apply to
shipments of PIH materials transported under the provisions of the IMDG
Code and the TDGR.
In its comments on the September 1999 IFR, Elf Atochem requests an
expansion of the limited PIH labeling exception for international
shipments to the import or export of small bulk packages in open
freight containers. Elf Atochem states that the IFR fails to provide a
similar exception for ``small bulk'' packages that are permitted to be
labeled rather than placarded under 49 CFR 172.514(c) and 7.2.2.1 of
the IMDG Code. Elf Atochem states that these small bulk packages will
be subject to the same possibility of errors and mishandling in port
areas, and that transportation workers will have the same potential
increased exposure if they have to handle and re-label these packages
in the port area. Therefore, Elf Atochem requests that the exception
provided for non-bulk packages in the September 16, 1999 IFR be
extended to include those small bulk packages that may be transported
in an open vehicle or freight container that are imported or exported
by vessel, and that are permitted or required to be labeled.
In this final rule, we are amending Secs. 171.12 and 171.12a to
permit a package containing a PIH material to be labeled or placarded
with a label or placard that conforms to the IMDG Code or TDG
regulatory hazard communication specifications for ``Class 6.1'' or
``Class 2.3'' labels and placards, as appropriate, if transported in a
closed transport vehicle or freight container marked with
identification numbers appropriate for the material and placarded as
required under the HMR. We agree with Elf Atochem that small bulk
packages should be included in this exception. Therefore, this
exception applies to both non-bulk and bulk packages transported in
closed transport vehicles or freight containers. We do not agree that
the PIH labeling exception should be expanded to packages in open
vehicles or freight containers. Offerors and transporters of PIH
materials should be aware that the PIH labeling exception applies to
PIH materials shipped in domestic or international transportation in
accordance with the IMDG Code.
We recognize that there are a limited number of materials for which
the HMR identify a material as a PIH with a Division 6.1 primary or
subsidiary hazard where the UN Recommendations, IMDG Code, and TDGR do
not indicate such a primary or subsidiary hazard (e.g., Trichloroacetyl
chloride, UN 2442). Packages of such materials shipped in closed
transport vehicles or freight containers under the provisions of the UN
Recommendations, IMDG Code, or TDGR in accordance with the exception
provided in this final rule must be labeled or placarded to indicate
the subsidiary PIH hazard. To indicate the subsidiary hazard, offerors
may use labels or placards that conform to the UN Recommendations, IMDG
Code, or TDGR requirements for ``Class 6.1'' or ``Class 2.3''
materials, as appropriate.
B. Shipments to or From Mexico
In comments on the September 1999 IFR, HMAC requested a delay in
implementation of the PIH labeling requirements for shipments to or
from Mexico. The September 16, 1999 IFR does not address shipments
between the United States and Mexico. A number of HMAC's members who
transport PIH materials to Mexico are concerned about the difficulties
they could encounter as a result of this omission.
HMAC states that it recognizes that including an exception of this
nature in the HMR is not as straightforward as those for shipments by
vessel and shipments to and from Canada. However, it considers such an
exception equally necessary and requests that we delay implementation
of the PIH labeling requirements until such time that an appropriate
means of including an exception for shipments to or from Mexico can be
found.
We agree with HMAC that shipments of PIH materials to or from
Mexico should be permitted to take advantage of the labeling exceptions
allowed for other international shipments. Thus, we are adding a new
paragraph (e) to Sec. 171.12 to permit a material poisonous by
inhalation transported in a closed transport vehicle or freight
container by highway or rail from Mexico to the United States or from
the United States to Mexico to be labeled or placarded with a label or
placard that conforms to the UN Recommendations on the Transport of
Dangerous Goods specifications for a ``Division 2.3'' or ``Division
6.1'' label or placard in place of a POISON GAS or POISON INHALATION
HAZARD label or placard. The transport vehicle or freight container
must be marked with identification numbers for the materials in any
quantity and placarded as required by subpart F of the HMR.
C. Placarding Exception in Port Areas
In this final rule, we are also providing a limited exception from
PIH placarding requirements applicable to transport vehicles and
freight containers. A transport vehicle or freight container used to
transport packages of PIH materials in international transportation may
be placarded with placards that conform to IMDG Code for ``Class 6.1''
or ``Class 2.3'' materials, as appropriate, instead of the new PIH
placards, when transported within a single port area (including
contiguous harbor) and when marked with appropriate identification
numbers. For highway or rail transportation to or from the port area
within the United States, the transport vehicle or freight container
must display the appropriate PIH placard.
D. Additional Revisions
In this final rule, we are revising Secs. 171.12(b)(8) and
171.12a(b)(5) for clarity. In addition, we are revising Secs. 172.400a,
172.407(f) and 172.519(f) to make the current labeling and placarding
exceptions consistent with the PIH labeling and placarding exceptions
in this final rule.
III. Transitional Provisions
In the final rule issued under Docket HM-206, we included
transitional provisions for continued use of the old POISON or POISON
GAS placards until October 1, 2001. These transitional provisions
remain in effect. Therefore, for materials poisonous by inhalation
offered for transportation or transported by all modes of
transportation, until October 1, 2001, placards may be used that
conform to specifications for placards: (1) In effect on September 30,
1991; (2) specified in the December 21, 1990 final rule for highway
transportation only; or specified in the July 22, 1997 final rule.
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IV. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered 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 and
has been placed in the docket for this rulemaking. The possible savings
associated with avoiding delay or frustration of shipments are
considered so minimal as to not warrant revision of the regulatory
evaluation. This rule is not significant under the Regulatory Policies
and Procedures of the Department of Transportation (44 FR 11034).
B. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts state, local, and Indian tribe requirements but
does not propose any regulation that has substantial direct effects on
the states, the relationship between the national government and the
states, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts state, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subject item 2 above and preempts
state, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. This final rule is necessary to
assure an acceptable level of safety for the transportation of PIH
materials and to facilitate international transportation of these
materials.
Federal hazardous materials transportation law provides at section
5125(b)(2) 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 be 90
days from publication of this final rule in the Federal Register.
C. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not significantly or uniquely affect the communities of the Indian
tribal governments and does not impose substantial direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), requires an
agency to review regulations to assess their impact on small entities
unless the agency determinates that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule provides relief to certain small entities by excepting
certain international shipments of PIH materials from labeling and
placarding requirements that differ from international requirements. 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 final 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.
H. Environmental Assessment
This final rule provides a limited exception from PIH labeling and
placarding requirements for certain shipments offered for or
transported in international commerce. The limited exception will not
affect emergency response to incidents involving PIH materials because
the PIH hazard will be prominently highlighted on shipping papers, on
package markings, and by use of applicable 4-digit identification
numbers and PIH placards on freight containers and transport vehicles.
We find that there are no significant environmental impacts associated
with this final rule.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 172
Education, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.
In consideration of the foregoing, the interim rule amending 49 CFR
parts 171 and 172 which was published at 64 FR 50260 on September 16,
1999, and amended at 64 FR 51719 on September 24, 1999, is adopted as a
final rule with the following changes:
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. In Sec. 171.12, paragraphs (b)(8)(iii) and (iv) are revised and
new paragraphs (b)(8)(v), (b)(8)(vi), and (e) are added to read as
follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) * * *
[[Page 44255]]
(8) * * *
(iii) The package must be marked in accordance with Sec. 172.313 of
this subchapter;
(iv) Except as provided in paragraph (b)(8)(v) of this section, the
package must be labeled or placarded POISON GAS or POISON INHALATION
HAZARD, as appropriate, in accordance with subparts E and F of this
subchapter;
(v) A label or placard that conforms to IMDG Code specifications
for a ``Class 2.3'' or ``Class 6.1'' label or placard may be
substituted for the POISON GAS or POISON INHALATION HAZARD label or
placard required by paragraph (b)(8)(iv) of this section on a package
transported in a closed transport vehicle or freight container. The
transport vehicle or freight container must be marked with
identification numbers for the hazardous material, regardless of the
total quantity contained in the transport vehicle or freight container,
in the manner specified in Sec. 172.313(c) of this subchapter and
placarded as required by subpart F of this subchapter;
(vi) A package, freight container, or transport vehicle may be
placarded in conformance with IMDG Code placard specifications for
``Class 2.3'' or ``Class 6.1'', as appropriate, in place of the POISON
GAS or POISON INHALATION HAZARD placard required by paragraph
(b)(8)(iv) of this section when moving within a single port area,
including contiguous harbor.
* * * * *
(e) Shipments to or from Mexico. Unless otherwise excepted,
hazardous materials shipments from Mexico to the United States or from
the United States to Mexico must conform to all applicable requirements
of this subchapter. When a hazardous material that is a material
poisonous by inhalation (see Sec. 171.8) is transported by highway or
rail from Mexico to the United States, or from the United States to
Mexico, the following requirements apply:
(1) The shipping description must include the words ``Toxic
Inhalation Hazard'' or ``Poison-Inhalation Hazard'' or ``Inhalation
Hazard'', as required in Sec. 172.203(m) of this subchapter.
(2) The material must be packaged in accordance with requirements
of this subchapter.
(3) The package must be marked in accordance with Sec. 172.313 of
this subchapter.
(4) Except as provided in paragraph (c)(5) of this section, the
package must be labeled or placarded POISON GAS or POISON INHALATION
HAZARD, as appropriate, in accordance with subparts E and F of this
subchapter.
(5) A label or placard that conforms to the UN Recommendations on
the Transport of Dangerous Goods specifications for a ``Division 2.3''
or ``Division 6.1'' label or placard may be substituted for the POISON
GAS or POISON INHALATION HAZARD label or placard required by
Secs. 172.400(a) and 172.504(e) of this subchapter on a package
transported in a closed transport vehicle or freight container. The
transport vehicle or freight container must be marked with
identification numbers for the material, regardless of the total
quantity contained in the transport vehicle or freight container, in
the manner specified in Sec. 172.313(c) of this subchapter and
placarded as required by subpart F of this subchapter.
3. In Sec. 171.12a, paragraphs (b)(5)(iii) and (iv) are revised and
new paragraphs (b)(5)(v) and (vi) are added, to read as follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(5) * * *
(iii) The package must be marked in accordance with Sec. 172.313 of
this subchapter;
(iv) Except as provided in paragraph (b)(5)(v) of this section and
for a package containing anhydrous ammonia, the package must be labeled
or placarded POISON GAS or POISON INHALATION HAZARD, as appropriate, in
accordance with subparts E and F of this subchapter;
(v) A label or placard that conforms to the specifications in the
TDG Regulations for a ``Class 2.3'' or ``Class 6.1'' label or placard
may be substituted for the POISON GAS or POISON INHALATION HAZARD label
or placard required by paragraph (b)(5)(iv) of this section on a
package transported in a closed transport vehicle or freight container.
The transport vehicle or freight container must be marked with
identification numbers for the material, regardless of quantity, in the
manner specified in Sec. 172.313(c) of this subchapter and placarded as
required by subpart F of this subchapter. When moving in the United
States, the transport vehicle or freight container may also be
placarded in accordance with the appropriate TDG regulations in
addition to the POISON GAS or POISON INHALATION HAZARD placards
required by paragraph (b)(5)(iv) of this section;
(vi) 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).
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
4. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
5. In Sec. 172.400a, new paragraph (d) is added to read as follows:
Sec. 172.400a Exceptions from labeling.
* * * * *
(d) A package containing a material poisonous by inhalation (see
Sec. 171.8 of this subchapter) in a closed transport vehicle or freight
container may be excepted from the POISON INHALATION HAZARD or POISON
GAS label or placard, under the conditions set forth in Secs. 171.12
and 171.12a of this subchapter.
6. In Sec. 172.407, paragraph (f) is revised to read as follows:
Sec. 172.407 Label specifications.
* * * * *
(f) Exceptions. Except for materials poisonous by inhalation (See
Sec. 171.8 of this subchapter), a label conforming to specifications in
the UN Recommendations may be used in place of a corresponding label
that conforms to the requirements of this subpart.
* * * * *
7. In Sec. 172.519, paragraph (f) is revised to read as follows:
Sec. 172.519 General specifications for placards.
* * * * *
(f) Exceptions. When hazardous materials are offered for
transportation or transported under the provisions of Secs. 171.11,
171.12, or 171.12a of this subchapter, a placard conforming to the
specifications in the ICAO Technical Instructions, the IMDG Code, or
the TDG Regulations, respectively, may be used in place of a
corresponding placard that conforms to the requirements of this
subpart, except that a bulk packaging, transport vehicle, or freight
container containing a material poisonous by inhalation (see Sec. 171.8
of this subchapter) must be placarded in accordance with this subpart
(see Secs. 171.12(b)(8), 171.12(e) and 171.12a(b)(5) of this
subchapter).
* * * * *
[[Page 44256]]
Issued in Washington, DC, on August 15, 2001, under the
authority delegated in 49 CFR part 1.
Robert A. McGuire,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 01-21002 Filed 8-21-01; 8:45 am]
BILLING CODE 4910-60-P