[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Proposed Rules]
[Pages 34880-34897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14583]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 172, and 173

[RSPA-03-15327 (Docket No. HM-206B)]
RIN 2137-AD28


Hazardous Materials: Changes to the Hazard Communication 
Requirements, Including Revision of Design of Labels and Placards for 
Materials Poisonous by Inhalation (PIH)

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: RSPA is proposing changes to the hazard communication 
requirements of the Hazardous Materials Regulations (HMR), including 
revisions of the specifications for labels and placards, based on 
petitions for rulemaking, requests for clarification, and our own 
belief that clarifications and improvements in the HMR may be 
appropriate. The effect of the proposed regulatory changes would be to 
improve safety of emergency responders and the public, and of offerors 
and transporters of hazardous materials.

DATES: Comments must be submitted on or before August 11, 2003. To the 
extent possible, we will accept late-filed comments as we develop a 
final rule.

ADDRESSES: Submit 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 Docket Number RSPA-
03-15327 (HM-206B) and be submitted in two copies. If you wish to 
receive confirmation of receipt of your written comments, include a 
self-addressed, stamped postcard. You may also submit comments by e-
mail by accessing the Dockets Management System Web site at ``http://dms.dot.gov/ gov/'' and following the instructions for submitting a 
document electronically. If you prefer, you can fax comments to 202-
493-2251 for filing in the docket.
    The Dockets Management System is located on the Plaza level of the 
Nassif Building at the Department of Transportation at the above 
address. You can review public dockets there between the hours of 9 
a.m. and 5 p.m., Monday through Friday, except federal holidays. You 
can also review comments on-line at the DOT Dockets Management System 
Web site at http://dms.dot.gov/.

[[Page 34881]]

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov/.

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:

List of Topics

I. Background
II. Marking Requirements
    A. NON-ODORIZED Marking on Cylinders, Portable Tanks, Cargo 
Tanks, and Tank Cars Containing Liquefied Petroleum Gas
    B. Organic Peroxide Identification Number Marking
    C. Fumigant Marking
III. Materials Poisonous by Inhalation (PIH)
    A. Revision of PIH Label and Placard and Transition Provisions
    B. Hydrogen Fluoride, Anhydrous, and Similar Materials
    C. Residues (When PIH Subsidiary)
IV. Other Requirements for Labels and Placards
    A. Color Standards for Labels and Placards
    B. ASTM D4956-95 (Red and White) for Reflective Colors
    C. Organic Peroxide, Subsidiary FLAMMABLE LIQUID Label
    D. Cylinder Markings in Accordance With CGA Pamphlet C-7
    E. Placarding Exception for Class 9 Materials (Domestic)
    F. Footnote to Table 1 (placards)--Editorial Correction
V. Training and Emergency Response Information
    A. Emergency Response Telephone Number Requirements
    B. Residues of Class 9 (Miscellaneous) Hazardous Substances, 
When Less Than RQ Remains
    C. Clarification of the Emergency Response Information and 
Training Requirements for Combustible Liquids
VI. Security Plans
    A. Infectious Substances--Select Agent
VII. Regulatory Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act
    E. Paperwork Reduction Act
    F. Regulatory Identification Number (RIN)
    G. Unfunded Mandates Reform Act
    H. Environmental Assessment

I. Background

    In general, the Hazardous Materials Regulations (HMR; 49 CFR parts 
171-180) require that during transportation: (1) Non-bulk packages of 
hazardous materials must be marked with the shipping name and 
identification number of the material and have a hazard warning label; 
(2) bulk shipments of hazardous materials must be identified by 
placards and identification number markings attached to the transport 
vehicle or bulk package; and (3) hazardous materials must be described 
and identified on a shipping paper that accompanies the shipment in 
transportation and contains an emergency response telephone number that 
is monitored at all times while the hazardous material is in 
transportation. This telephone number is used by emergency responders 
to obtain detailed, product-specific information that includes guidance 
for the initial actions to be taken in the event of an incident. These 
requirements are designed to provide fire and emergency response 
personnel, transport workers, and the public with information in the 
event of a transportation incident involving hazardous materials. 
Hazard communication and emergency response information requirements 
are set forth in subparts C through G of part 172 of the HMR. The 
hazard communication system in the HMR is consistent with international 
standards.
    In this NPRM, RSPA (we) is proposing a number of clarifications and 
improvements to the shipping paper, identification number, other 
marking, labeling and placarding, and emergency response telephone 
number requirements. The changes are intended to enhance the 
identification of hazardous materials in transportation and improve the 
availability of emergency response information. These changes should 
result in better response by, and protection of emergency response 
personnel, fire or police personnel and the public, and help to ensure 
that hazardous materials are transported with minimum risks to persons, 
property, and the environment.
    We received a number of petitions for rulemaking requesting changes 
to the hazard communications requirements of the HMR. The following 
chart summarizes the petitions considered in this NPRM:

------------------------------------------------------------------------
         Petition No.                           Request
------------------------------------------------------------------------
0804.........................  Amend placarding requirements for PROPANE
                                to require the phrase NON-AEROMATIC be
                                displayed on a placard when there is no
                                detectable odor to alert emergency
                                response personnel. Requested by New
                                Jersey State Firemen's Mutual Benevolent
                                Association (Proposed in Sec.  Sec.
                                172.301, 172.326, 172.328, 172.330).
1113.........................  Amend the requirements for color
                                standards for labels and placards to
                                reference certain colors from the
                                Pantone[reg] Matching System,
                                Pantone[reg] Color Formula Guide, First
                                Edition 2000-2001. Requested by the
                                Dangerous Goods Advisory Council (DGAC,
                                formerly HMAC) (Proposed in Sec.  Sec.
                                172.407(d) and 172.519(d)).
1285.........................  Amend the labeling requirements to allow
                                commercial motor carriers to transport
                                Division 2.1 or 2.2 gases in cylinders
                                or Dewars marked in conformance with CGA
                                Pamphlet C-7. Requested by the
                                Compressed Gas Association (CGA)
                                (Proposed in Sec.   172.400a(a)(1)).
1327.........................  Amend the hazard communication system to
                                require display of the identification
                                number on each bulk packaging, unit load
                                device, freight container, transport
                                vehicle or rail car, when transporting
                                an ``Organic peroxide, temperature
                                controlled'' material subject to
                                placarding provisions in Sec.
                                172.504(e), Table 1. Requested by the
                                Los Angeles Police Department (Proposed
                                in Sec.   172.336(b)(2)).
1368.........................  Revise paragraphs (b) and (e) of Sec.
                                173.9 to: (1) Require only the EPA
                                FUMIGANT warning label to be prominently
                                displayed instead of the FUMIGANT
                                marking currently prescribed in the HMR;
                                (2) allow for aeration of the transport
                                vehicle or freight container without
                                requiring unloading of the lading that
                                has been fumigated; and (3) clarify that
                                the phrase ``or treated with any
                                material,'' applies to ready-to-use
                                liquid formulations or ``foggers'', such
                                as ant or roach repellants. Requested by
                                the Industrial Fumigant Company
                                (Proposed revision in paragraph (e) in
                                Sec.   173.9).

[[Page 34882]]

 
1416.........................  Amend the requirements for materials
                                listed as hazardous substances in the
                                Sec.   172.101 Table, Appendix A, Table
                                I, that only meet the hazard class
                                definition of a Class 9 (miscellaneous)
                                material. The petitioner requested that
                                markings, labels, and placards be
                                allowed to remain on such packages
                                containing a residue of such substances,
                                although the rail cars have been
                                unloaded to a quantity less than the
                                reportable quantity (RQ). Requested by
                                Bayer Corporation (Proposed revision in
                                Sec.   172.514(b) to eliminate confusion
                                regarding these types of returned rail
                                car shipments).
------------------------------------------------------------------------

II. Marking Requirements

A. Non-Odorized Marking on Cylinders, Portable Tanks, Cargo Tanks, and 
Tank Cars Containing Liquefied Petroleum Gas

    With certain exceptions, all liquefied petroleum gas (LPG) must be 
odorized when transported in portable tanks or cargo tanks, as 
prescribed in Note 2 of Sec.  173.315(b)(1). Odorization must indicate 
positively, with a distinctive odor, the presence of gas down to a 
concentration in air of not more than one-fifth the lower limit of 
combustibility. Exceptions are permitted if odorization is harmful in 
the use or further processing of LPG, or if odorization will serve no 
useful purpose as a warning agent. There is no requirement in the HMR 
to odorize LPG in cylinders or tank cars. The fact that LPG is odorized 
or not is not required to be communicated to emergency responders or 
the general public.
    The New Jersey State Firemen's Mutual Benevolent Association (the 
Association) petition requested that packages containing non-odorized 
propane that are already required to be placarded have the phrase NON-
AEROMATIC or NON-ODORIZED added either above or below the word 
``propane.'' The Association stated that emergency response personnel 
may be unaware of leaks or spills of propane because there is no 
detectable odor to alert these persons of the hazardous condition 
present.
    We believe this petition has merit. This lack of additional hazard 
warning information could cause emergency responders to make 
inappropriate decisions in mitigating an accident, potentially 
jeopardizing their safety or the public safety.
    In 1984, we published an NPRM, Docket HM-126D; Notice No. 84-11 (49 
FR 38164) that proposed several changes in parts 171, 172 and 173 
regarding odorization of liquefied petroleum gas (LPG), in addition to 
other revisions. The comments we received ranged from complete support 
to direct opposition. In a final rule (52 FR 29526) published August 
10, 1987, we stated that the odorization issue would be handled under a 
separate docket. In comments to the HM-126D rulemaking, an LPG carrier 
representative and the National LP-Gas Association stated that non-
odorized LPG is transported in fewer than 300 cargo tanks, fewer than 
600 tank cars, approximately 3500 cylinders, and approximately 100 
portable tanks. Commenters also stated that less than 1 percent of the 
LPG transported by motor vehicle is non-odorized and approximately 94 
percent of LPG is transported by motor vehicle.
    Emergency responders may assume that each bulk packaging displaying 
the LPG proper shipping name, or a technical name such as butane, 
isobutylene, or propane, contains an odorant. However, to provide the 
appropriate hazard warning information when packagings do not contain 
an odorant, we believe NON-ODORIZED should be marked in association 
with the proper shipping name on a cylinder (except for DOT 2P and 2Q 
containers and DOT 39 cylinders), portable tank, cargo tank, or tank 
car containing LPG. The specification DOT 2P, 2Q or 39 packagings would 
not be subject to the marking requirement because of their small size. 
At an incident involving such cylinders, emergency response personnel 
would have to get too close to such packages to determine whether they 
were marked NON-ODORIZED, which could jeopardize the health and safety 
of the responders.
    Therefore, to provide the necessary warning, we propose to require 
NON-ODORIZED marking on certain cylinders, portable tanks, cargo tanks 
and tank cars. For portable tanks, cargo tanks and tank cars, the size 
of the marking would be as prescribed in the general marking 
requirements for bulk packagings. The annual cost of this marking, 
using pressure sensitive, vinyl labels that have a 5- to 7-year life 
expectancy, would be minimal. Accordingly, we propose to amend 
Sec. Sec.  172.301, 172.326, 172.328, and 172.330, to require the 
marking NON-ODORIZED for LPG that does not contain an odorant.

B. Organic Peroxide Identification Number Marking

    Currently, a Division 5.2 ORGANIC PEROXIDE placard is specified in 
both Table 1 and Table 2 of Sec.  172.504. In Table 1, a Division 5.2 
placard is required for any quantity of an organic peroxide, Type B, 
liquid or solid, temperature controlled. In Table 2, a Division 5.2 
placard is required for organic peroxides not covered by Table 1 when 
1,001 pounds or more are on a transport vehicle. Thus, an ORGANIC 
PEROXIDE placard may or may not indicate that the material is 
temperature controlled.
    The Los Angeles Police Department (LAPD) petition (P-1327) 
requested that we require an identification number to be displayed on 
each bulk packaging, unit load device, freight container, transport 
vehicle, or rail car, when the material transported is a temperature-
controlled organic peroxide subject to placarding under Sec.  
172.504(e), Table 1. The LAPD said this will clearly identify the 
organic peroxides requiring special response needs based on temperature 
controls. The LAPD said that the current requirement to placard any 
amount of ``5.2, Organic peroxide, Type B, liquid or solid, 
temperature-controlled'' material does not convey the warning to 
emergency personnel that the material must be temperature controlled. 
This issue was previously discussed in a final rule responding to 
petitions for reconsideration under HM-206 (62 FR 39398; 07/22/97). 
During that process, we denied LAPD's petition because such a change 
was not proposed in the NPRM, and was beyond the scope of that 
rulemaking. However, because organic peroxides that require 
refrigeration for stabilization purposes during transportation pose a 
substantial hazard in any incident that would result in a loss of 
temperature control, we said this suggestion had merit, and would be 
considered in future rulemaking.
    Under the current regulations, a bulk packaging is required to 
display an identification number marking. Similarly, a transport 
vehicle or freight container containing a single hazardous material in 
non-bulk packagings having an aggregate gross weight of 4000 kg (8,820 
pounds) or more is also required to display the identification number 
on the exterior of the transport vehicle or freight container. In 
addition, the shipping paper provides appropriate information on 
organic peroxide temperature-controlled material,

[[Page 34883]]

including the identification number. However, the shipping paper may 
not be immediately available at the scene of an incident. Thus, other 
than the ORGANIC PEROXIDE placard, there may not be other information 
readily available to inform responders of the unique characteristic 
(i.e., temperature controlled) of this type of material to assist them 
in determining an appropriate response. We believe the LAPD petition 
has merit and propose to add a new paragraph (b)(2) in Sec.  172.336 to 
require the identification number to be displayed on a transport 
vehicle or freight container containing any quantity of an organic 
peroxide, temperature controlled, material that is required to be 
placarded in accordance with the requirements in Sec.  172.504(e), 
Table 1.

C. Fumigant Marking

    Effective October 1, 1998, we adopted new requirements for 
fumigated loads (62 FR 1217; 01/08/97). Formerly, fumigation 
requirements applied only to rail transportation and set forth 
different provisions depending on the type of fumigant used. We adopted 
requirements in Sec.  173.9 specifying that a fumigated transport 
vehicle or freight container is a ``package'' for purposes of the 
fumigation requirements, and expanded the requirements to cover all 
modes of transportation. The rule applies to fumigation with any 
material and set forth defining criteria and concentration thresholds 
for unlisted fumigants. This approach benefits shippers, carriers, law 
enforcement agencies, and, in particular, transport workers who may be 
exposed unknowingly when they open transport units. Thus, if the 
transport unit or freight container has been treated with any material, 
or is undergoing fumigation, it is subject to the fumigation marking 
requirements of the HMR.
    The Industrial Fumigant Company (IFC) petitioned us (P-1368) to 
amend the HMR to revise paragraphs (b) and (e) of Sec.  173.9 to 
require only the EPA FUMIGANT warning label to be prominently displayed 
instead of the FUMIGANT marking currently prescribed in the HMR. The 
petition also requested that we allow for aeration of the transport 
vehicle or freight container without requiring unloading of the lading 
that has been fumigated. In addition, the petitioner requested that we 
clarify the phrase ``or treated with any material,'' as it applies to 
materials, such as ready-to-use liquid formulations or ``foggers,'' 
such as ant and roach repellants. IFC said that these ``foggers,'' or 
non-residual insecticides, are lower in toxicity than fumigants and can 
be found in ready-to-use liquid formulations used in a household 
environment. IFC stated it would be incorrect to place a FUMIGANT 
marking on an application such as this, and that the phrase ``or 
treated with any material'' is too broad and could cause confusion.
    In regard to ready-to-use liquid formulations, such as pyrethrin, 
we believe persons entering a transport unit should be made aware of 
the presence of chemicals that may pose a threat to their health and 
safety. We do not agree with IFC that such chemicals do not pose a risk 
during transportation, and we continue to believe that persons offering 
or transporting treated or fumigated loads must have immediate 
knowledge relative to such materials or fumigants.
    We also do not agree that only the EPA fumigant marking or label 
should be displayed on a transport vehicle or freight container 
containing fumigated lading. The design of the FUMIGANT marking was 
adopted for consistency with the United Nations Recommendations on the 
Transport of Dangerous Goods (UN Recommendations) for fumigated lading 
in transportation in commerce. For domestic transportation, we allow 
the hazard warning label authorized by EPA under 40 CFR part 156 as an 
alternative to the FUMIGANT marking.
    However, we believe that this petition has merit and should, in 
part, be granted. We understand that some fumigated materials are 
aerated without being unloaded from the transport vehicle or freight 
container. Thus, the requirement as written in Sec.  173.9(e)(1), that 
the FUMIGANT marking must remain on the package unless both the 
fumigated lading is unloaded and the transport vehicle is sufficiently 
aerated may be an unnecessary burden on the fumigation industry. In 
this NPRM, we propose to revise the requirements in paragraph (e) of 
Sec.  173.9 to specify that the FUMIGANT marking must remain on the 
vehicle or container until the fumigated lading is ``unloaded or has 
undergone sufficient aeration.'' The word ``or'' replaces the word 
``and'' in the current paragraph (e)(1). This revision will permit 
aeration or ventilation of the vehicle or container without unloading.

III. Materials Poisonous by Inhalation (PIH)

A. Revision of PIH Label and Placard and Transition Periods

    In a final rule issued January 8, 1997 (62 FR 1217), we adopted new 
labels and placards for both liquids (Division 6.1) and gases (Division 
2.3) that are PIH materials to enhance their identification when 
transported in commerce. The dark background for skull and crossbones 
of the symbol depicted on the PIH label and placard graphically conveys 
the appropriate information to alert responders to the hazards of PIH 
materials. The new PIH label and placard also improve hazard 
communication by creating an instantly recognizable difference between 
PIH materials and other poisons. The effective date was delayed one 
year, until October 1, 1998. At that time, we included transitional 
provisions for continued use of the POISON or POISON GAS labels and 
placards, until October 1, 1999, and October 1, 2001, respectively.
    However, on the new PIH label and placard, we inadvertently 
specified a smaller skull and crossbones symbol in the upper black 
diamond than currently shown on the Poison placard and label. In this 
notice, we are proposing to enlarge the upper black diamond above the 
horizontal center line and, proportionally, the skull and crossbones 
symbol at the top of the placards and labels to conform, pictorially, 
in size, with the symbol on the Poison placard and label used for 
poisons other than those that are PIH materials. Increasing the size of 
the symbol will make these placards and labels more visible from a 
distance and will enhance the ability of emergency responders and 
transport workers to identify the PIH materials.
    Identification number markings are not prohibited on the POISON GAS 
or POISON INHALATION HAZARD placards, as specified in Sec.  172.334. 
Display of an identification number on a hazard warning placard must be 
in conformance with the identification number marking requirements 
prescribed in Sec.  172.332(c) of the HMR. That is, the identification 
number must be displayed across the center area of the placard in 88 mm 
(3.5 inches) black Alpine Gothic or Alternate Gothic No. 3 numerals on 
a white background 100 mm (3.9 inches) high and approximately 215 mm 
(8.5 inches) wide, and the top of the 100 mm (3.9 inches) high white 
background must be 40 mm (1.6 inches) above the placard horizontal 
center line. Because we are proposing to enlarge the upper black 
diamond above the horizontal center line and, proportionally, the skull 
and crossbones symbol at the top of the PIH placards, identification 
number markings displayed on the proposed PIH placards may cause 
overlapping of the lower point of the upper black diamond and

[[Page 34884]]

impinge on space used for identification number display on such 
placards.
    To allow space for the identification number, we propose allowing 
the lower point of the upper black diamond to impinge on space used to 
display an identification number marking on a PIH placard. A provision 
would be added in Sec.  172.332(c) to allow the overlapping or 
clipping-off of the lower point of the black square-on-point (upper 
black diamond) above the horizontal center line on both the POISON GAS 
and POISON INHALATION HAZARD placards displayed on transport vehicles 
or freight containers containing materials poisonous by inhalation.
    We are also proposing in Sec.  171.14(a) and (b) to allow those 
persons who had begun, prior to October 1, 2001, to use and maintain a 
supply of the new PIH labels and placards with smaller size symbols to 
continue to use them in transportation. For non-permanent placard 
displays (e.g., tagboard), the proposed compliance date would be 
October 1, 2006. The proposed compliance date for use of the proposed 
revised labels (with enlarged symbols on the upper black background) 
would be October 1, 2004, except that if a permanent PIH label (e.g., 
labels printed, embossed or stamped on the surface of a package) 
conforms to the specifications in effect on October 1, 1998, and is 
manufactured and installed prior to October 1, 2003, it may continue to 
be used for its useful life. For permanent placard displays (e.g., 
metal ``flip-type'', that cannot be transferred to another motor 
vehicle, rail car, freight container, etc.), we propose that if a 
permanently-mounted PIH placard conforms to the specifications in 
effect on October 1, 1998 (delayed effective date of HM-206), and is 
manufactured and installed prior to October 1, 2003, it may continue to 
be used for its useful life. Accordingly, the present requirements in 
paragraphs (a) and (b) in Sec.  171.14, which are obsolete and 
therefore no longer necessary, would be removed and new paragraphs (a) 
and (b) would be added to include continued use provisions and 
transition dates for PIH labels and placards.

B. Hydrogen Fluoride, Anhydrous, and Similar Materials

    In the HM-206 final rule (62 FR 1217; 1/8/97), materials such as 
hydrogen fluoride, anhydrous, that meet the definition of a PIH 
material, were not specifically addressed in the provisions for 
labeling and placarding PIH materials in Division 6.1. To correct this 
oversight, we are proposing to revise Sec. Sec.  172.400 and 172.504 to 
require an inhalation hazard label or placard for all materials that 
meet the definition of a PIH material in Sec.  171.8.

C. Placarding Requirement for Residues (When PIH Subsidiary)

    In accordance with Sec.  173.29, a non-bulk packaging containing 
only a residue of a hazardous material covered by placarding Table 2 of 
Sec.  172.504 of the HMR need not be included in determining the 
applicability of the placarding requirements in subpart F of part 172 
and is not subject to shipping paper requirements when collected and 
transported by a contract or private carrier for reconditioning, 
manufacturing, or reuse. However, the exception in Sec.  173.29(c) was 
not intended to apply to the residue of a material shipped in non-bulk 
packagings that has a subsidiary PIH hazard that would require the 
transport vehicle to be placarded in accordance with the subsidiary 
placarding requirements in Sec.  172.505(a). Therefore, we are 
proposing to clarify that the exception in Sec.  173.29(c) does not 
apply to the residue of a PIH material.

IV. Other Requirements for Labels and Placards

A. Color Standards for Labels and Placards

    The Dangerous Goods Advisory Council (DGAC) (formerly, the 
Hazardous Materials Advisory Council) petitioned RSPA (P-1113) to 
consider alternative means of achieving reasonable conformance to color 
standards for hazard warning labels and placards. DGAC said the 
specifications for colors in the Tables in Appendix A of part 172 of 
the HMR cause difficulty since the systems on which they are based 
(i.e., Munsell Notations) are not in common use. According to DGAC, 
this is reinforced by the lack of specified standards in the UN 
Recommendations, the International Maritime Dangerous Goods Code, and 
the International Civil Aviation Organization Technical Instructions 
for the Safe Transport of Dangerous Goods by Air. DGAC said that, while 
the text of each document refers to some degree of conformance to the 
illustrations shown, variation does exist within a given color. Some of 
DGAC's member companies note that the color tolerance charts previously 
available from RSPA are no longer available. DGAC recommended that 
color standards for labels and placards conform generally to the same 
standards prescribed in the Canadian Transport of Dangerous Goods (TDG) 
Regulations, which are colors conforming to the Pantone[reg] Formula 
Guide published by Pantone Incorporated (Pantone[reg]). DGAC suggested 
specific colors based on the Pantone[reg] Formula Guide and proposed 
regulatory language. DGAC stated that these standards should apply to 
labels, placards, and identification number markings that are surfaced 
with printing inks. Where colors are applied as opaque coatings, such 
as paint, enamel, or plastic, or where labels are printed directly on 
the surface of a packaging, a spectrophotometer or other 
instrumentation would be required to ensure a proper match with the 
color standards suggested in the petition.
    The use of the Pantone[reg] Formula Guide was addressed in the NPRM 
under Docket HM-206 (59 FR 41848; 8/15/94). No changes were proposed in 
the NPRM to the present label and placard color code system because 
there was insufficient cost and safety information available to justify 
adopting a new color system. At that time, we asked for comments or 
information concerning color code systems that would allow for a range 
of color and estimates of the costs and benefits of adopting a new 
color tolerance system. The Pantone[reg] Formula Guide uses specific 
colors and does not allow for deviations or tolerances as do the 
Munsell Notations. In the HM-206 NPRM, we also asked commenters to 
provide information on specific colors from the Pantone[reg] Formula 
Guide that, in their view, constitute compliance with the label and 
placard color standards, including tolerances currently referenced in 
the HMR. However, commenters did not provide any new or additional 
safety or cost information on this issue.
    Pantone sells samples for over 1,100 colors, along with printing 
ink formulas to achieve each color. All colors are mixed from a set of 
14 standard base colors. Pantone's product line consists of loose-leaf 
books of color samples and instructions to enable graphic artists and 
printers to reproduce each color on various types of paper and other 
printing materials. In past discussions, Pantone said that any 
manufacturers' inks can be used to achieve Pantone's colors. This 
distinguishes its system from other color systems, which prescribe 
formulas for printers to use, but may require printers to use only its 
brand of inks. Dyes used for paints are different from printing dyes, 
but are expected to be longer lasting, more durable, and stand up 
against fading. Printing dyes are relatively inexpensive, but not 
designed to last for long periods of time.
    We understand that the Munsell Notations present problems for 
persons making hazard warning labels and placards because the system is 
not

[[Page 34885]]

widely recognized or used, and many printers do not understand it. 
Therefore, based on DGAC's petition, in this NPRM we propose to 
reference certain Pantone[reg] Formula Guide numbers as a convenience 
to users, not as a requirement. Sections 172.407 and 172.519 would be 
revised to voluntarily permit the use of certain Pantone[reg] Formula 
Guide colors for identification number and other markings and hazard 
warning labels and placards as an alternative to the Munsell notations. 
These color standards conform generally to the same standards under the 
Canadian TDG Regulations.
    For many years now, the set of Color Tolerance Charts, prescribed 
in Sec. Sec.  172.407 and 172.519, which are used to compare and 
determine compliance with the colors for identification number markings 
and hazard warning labels and placards, have not generally been 
available. Recently, we have become aware of the availability of the 
Color Tolerance Charts from a commercial source, Hale Color Charts, 
Inc. The set of Color Tolerance Charts displays the desired color 
(central) with a series of tolerance limits and color matches. The 
availability of these charts will assists enforcement personnel in the 
field in determining compliance with colors for markings, labels and 
placards and assist persons who wish to produce their own labels and 
placards based on the range of colors set forth in these charts for 
comparison. Therefore, we have added this source to our ``Commercial 
Suppliers'' lists of hazardous materials regulatory and emergency 
response publications at our Hazmat Safety Web site at http://hazmat.dot.gov.

B. ASTM D4956-95 (Red and White) for Reflective Colors

    Domestically, reflective or retroreflective placards are permitted, 
but not required, under the HMR. In accordance with the provisions in 
Sec.  172.519(a)(3), reflective materials may be used on a placard if 
the prescribed colors, strengths, and durability are maintained. Place 
Quick, Inc. (Place Quick), filed an application for exemption (11972-N) 
from certain requirements in the HMR to use retroreflective material 
and colors that meet the Federal Highway Administration Standard FP-96 
for highway safety colors. In support of its application, Place Quick 
submitted samples of placards and labels made from 
ScotchliteTM Reflective Sheeting Diamond Grade reflective 
materials. That material conforms to Motor Vehicle Safety Standard No. 
108 Lamps, Reflective Devices, and Associated Equipment specified in 49 
CFR 571.108. Because the exemption application concerns a matter of 
general applicability and future effect, we advised Place Quick that, 
in accordance with 49 CFR 107.113(i), this matter would be addressed in 
this docket. We stated that the placard colors (including red) do not 
fall within prescribed color tolerances. More recently, Place Quick 
said that it is only concerned with the red and white reflective colors 
on placards, which would be used by its clients on ``dedicated'' 
trucks.
    In this NPRM, we are proposing an alternate color standard for 
labels and placards constructed of retroreflective materials. 
Specifically, we are focusing on retroreflective red or white 
conforming to Type V sheeting in ASTM D 4956, Standard Specification 
for Retroreflective Sheeting for Traffic Control. This is the standard 
referenced in 49 CFR 571.108 for conspicuity systems as specified under 
paragraph (b) and defined in S5.7 of 49 CFR 571.108, applicable to 
certain truck tractors and trailers. We believe that the 
retroreflective red or white conforming to Type V sheet in ASTM D 4956, 
Standard Specification for Retroreflective Sheeting for Traffic Control 
may enhance nighttime visibility or conspicuity of hazard warning 
labels and placards in daylight and darkness. Accordingly, we propose 
to revise Sec. Sec.  171.7, 172.407 and 172.519 to include provisions 
for use of red or white Type V sheeting for reflective materials for 
hazard warning labels and placards, as appropriate. Because other 
colors in ASTM D 4956 so poorly match the current and proposed color 
standards for placards and labels, we are not including them in this 
proposed rule. The Canadian TDG Regulations' ``Clear Language Edition'' 
no longer contains a provision that requires the use of a 
retroreflective placard, or a retroreflective ``yellow band'' for 
various hazard classes of hazardous materials in a large freight 
container or transport vehicle.

C. Organic Peroxide, Subsidiary FLAMMABLE LIQUID Label

    There is an inconsistency between the subsidiary labeling 
requirements in the UN Recommendations and the HMR. Under the HMR, the 
additional labeling requirements in Sec.  172.402 specify that each 
package containing a hazardous material must be labeled with both 
primary and subsidiary hazard warning labels. In accordance with Sec.  
172.402(a)(2), a package containing a Division 5.2 (organic peroxide) 
material that also meets the definition of Class 3 (flammable liquid) 
material must be labeled ORGANIC PEROXIDE and FLAMMABLE LIQUID, except 
for Class 3 material in Packing Group III (see exception in Sec.  
172.402(a)(2)). However, paragraph 5.2.2.1.9 of the UN Recommendations 
specifies that a subsidiary FLAMMABLE LIQUID label is not required on 
such a package because the ORGANIC PEROXIDE label is understood to 
convey the inherently flammable nature of organic peroxides. Therefore, 
for consistency with the UN Recommendations, and in order to clear up 
any misunderstanding regarding additional labeling of a Division 5.2 
(organic peroxide) material that exhibits a Class 3 (flammable liquid) 
subsidiary hazard, we propose to adopt this exception in a new 
paragraph (h) in Sec.  172.402.

D. Cylinder Markings in Accordance With CGA Pamphlet C-7

    Currently, the HMR provide exceptions for labeling certain 
compressed gases (i.e., Division 2.1 or Division 2.2) carried by 
private or contract motor carriers if certain conditions as prescribed 
in Sec.  172.400a(a)(1) are met. In place of a hazard warning label, 
the markings specified in Compressed Gas Association (CGA) Pamphlet C-
7, ``Guide to the Preparation of Precautionary Labeling and Marking of 
Compressed Gas Containers, Appendix A,'' may be used to satisfy the 
labeling requirements in the HMR. CGA petitioned RSPA (P-1285) to amend 
the HMR to allow common motor carriers to transport Division 2.1 or 
Division 2.2 gases in cylinders or Dewars marked in conformance with 
CGA Pamphlet C-7.
    Appendix A of CGA Pamphlet C-7 sets forth the CGA marking system 
for compressed gas cylinders. CGA developed the basic marking to 
provide immediate identification of cylinder contents. The basic 
marking, illustrated in Figure 1, Pamphlet C-7, consists of a reduced 
size square-on-point hazard warning label, indicating the hazard class 
of the contained gas, combined with a panel containing the proper 
shipping name and the product identification number of the contained 
gas. The panel must be located to the left of the square-on-point. For 
certain gases with additional hazards, multiple labels may be required. 
For such gases, the basic marking must include an additional square-on-
point denoting each secondary hazard. The square-on-point 
configurations must be adjacent to one another, but the adjoining 
points may overlap by not more than 10 mm (\3/8\ inch), as illustrated 
in Figure 2 of Pamphlet C-7.

[[Page 34886]]

    CGA suggested several factors that it believes justify this 
proposal. For example, cylinder neck labels are less subject to 
abrasions than cylinder body labels and are less likely to loosen and 
fall off. Further, the smaller markings affixed to the shoulder of 
cylinders are more visible when cylinders are grouped together than 
when the information is on a label affixed to the cylinder wall. These 
markings have been used in Canada since 1985, and thus reciprocity with 
Canada would be maintained. Furthermore, CGA stated that the CGA 
Pamphlet C-7 marking enhances industry's ability to meet the 
Occupational Safety and Health Administration's requirement that 
precautionary labels not be removed from containers until containers 
have been emptied.
    We believe that the CGA petition has merit. Experience shows that 
this alternative marking, currently authorized for cylinders carried by 
private and contract carriers, clearly communicates the degree of 
hazard associated with Division 2.1 or Division 2.2 gases in cylinders 
offered for transportation in commerce. The marking prescribed in the 
CGA Pamphlet C-7, Appendix A, will not detract from a common carrier's 
ability to segregate and stow cylinders since cylinders shipped 
individually must be moved individually by employees who are close 
enough to read the smaller marking and label. In addition, the proper 
shipping name and identification number of the hazardous material are 
marked adjacent to the smaller hazard warning label, which makes 
identification of the products easier. For consistency with 
international standards, we are proposing to permit the use of the 
markings specified in Pamphlet C-7 on cylinders containing compressed 
gases in Divisions 2.1, 2.2, or 2.3, which may be shipped in accordance 
with the exceptions from labeling prescribed in Sec.  172.400a.
    We believe such markings will be equally effective in communicating 
the hazard of the material being shipped. Safety would not be reduced 
because shipping papers and placards on the transport vehicles provide 
hazard warning information that can be used in the event of an 
emergency. Paragraph 5.2.2.2.1.2 of the UN Recommendations permits 
cylinders for Class 2 gases to bear labels representative of those 
specified. The Canadian and European regulations, which are based on 
the UN Recommendations, authorize labels which have been reduced in 
size, as appropriate, for display on the non-cylindrical part of the 
cylinders. Thus, this proposal would enhance international 
harmonization of standards. Therefore, in this NPRM, for consistency 
with provisions in the UN Recommendations and Canadian and European 
regulations, we are proposing to revise the requirement in Sec.  
172.400a(a)(1) to broaden the labeling exception to apply to all modes 
of transportation, by air, water, rail or highway.

E. Placarding Exception for Class 9 Materials (Domestic)

    Mr. Tom Sever, Hazardous Materials Coordinator, Motor Vehicle 
Enforcement, Iowa Department of Transportation, requested we rescind an 
interpretation dated February 25, 1997 pertaining to domestic 
transportation of Class 9 (miscellaneous) material, change the 
definition of domestic transportation listed in Sec.  171.8, or 
eliminate the Class 9 placarding requirements in Sec.  172.504(f)(9) 
and the placard itself in Sec.  172.560. Mr. Sever said that the 
requirement should have uniform intent; that is, require use of the 
CLASS 9 placard when the shipment is passing through the United States 
and destined for a foreign country.
    Our February 25, 1997 letter addressed a highway shipment of 12,440 
pounds of ``Environmentally hazardous substances, solid, n.o.s., 9, UN 
3077, PG III, RQ (Lead)'' from Garland, Texas to Alberta, Canada. We 
stated that for those portions of transportation that occur within the 
borders of the United States, a shipment in international 
transportation is eligible for the same placarding exceptions that 
apply to transportation which is domestic only. For these purposes, the 
definition of ``domestic transportation'' includes not only 
transportation exclusively within the United States, but also that 
domestic portion of international transportation that occurs between 
places within the United States. Therefore, CLASS 9 placards are not 
required to be displayed on a shipment of Class 9 hazardous material 
while it is within the United States.
    We do not agree that the placarding exception in Sec.  
172.504(f)(9) should be eliminated, but we do agree that the provision 
should be clarified to minimize misunderstanding. Therefore, we propose 
to revise the provision to clarify that the Class 9 placarding 
exception applies to international shipments of Class 9 material while 
moving in the United States.

F. Footnote to Table 1 (Placards)--Editorial Correction

    We are proposing an editorial revision in Sec.  172.504(e), Table 
1, to correct citations in Footnote 1, pertaining to placarding for 
certain shipments of radioactive materials. The footnote would be 
corrected to read as follows: ``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.''

V. Training and Emergency Response Information

A. Emergency Response Telephone Number Requirements

    The HMR require a person offering a hazardous material for 
transportation to provide an emergency response telephone number 
(including the area code or international access code) on the shipping 
paper for use in the event of an emergency involving the material. The 
emergency response telephone number must be that of a person who has 
comprehensive knowledge of emergency response and incident mitigation 
information about the hazardous material being shipped. As an 
alternative, the number may be of a person who has ``immediate access'' 
to a person who possesses such information. The emergency response 
telephone number must be monitored at all times for as long as the 
hazardous material is being transported, including during storage 
incidental to the movement of the hazardous material. Storage that is 
incidental to movement generally is storage that occurs between the 
time a hazardous material is offered for transportation and the time it 
reaches its destination and is delivered to the consignee.
    We know that some shippers have misinterpreted ``immediate access'' 
as authorizing them to use a ``call back'' system that requires an 
emergency responder to wait for a return telephone call. To clarify the 
requirement for ``immediate access,'' we are proposing to revise Sec.  
172.604 to indicate that beeper numbers and call-back systems do not 
conform to the requirements in Sec.  172.604 and are not acceptable 
under the HMR.

B. Residues of Class 9 (Miscellaneous) Hazardous Substances, When Less 
Than RQ Remains

    An ``empty'' packaging is not subject to any other requirement of 
the HMR if any hazardous material shipping name and identification 
number markings, any hazard warning labels or placards, and any other 
markings indicating that the material is hazardous (e.g., RQ) are 
removed, obliterated, or securely covered in transportation and: (1) 
The packaging is unused; (2) the packaging

[[Page 34887]]

is sufficiently cleaned of residue and purged of vapors to remove any 
potential hazard; (3) the packaging is refilled with a material that is 
not hazardous to such an extent that any residue remaining in the 
packaging no longer poses a hazard; or (4) the packaging contains the 
residue of certain materials listed in this section. Otherwise, an 
empty packaging containing the residue of a hazardous material must be 
offered for transportation and transported in the same manner as when 
it previously contained a greater quantity of the material.
    Bayer Corporation (Bayer) petitioned RSPA (P-1416) to add new 
paragraphs 172.514(b)(3) and 173.29(h) for empty packagings or 
packagings that contain residues of hazardous substances that meet the 
definition of a Class 9 (miscellaneous) material, and do not meet any 
of the other hazard class definitions. Bayer said the proposed 
additions would address the residue remaining in a container after it 
had been unloaded to a quantity less than the reportable quantity (RQ). 
For example, a rail car loaded with 185,000 pounds of MDI (RQ, 5000 
lbs.) would be shipped as a Class 9 (miscellaneous) material because 
the rail car contains more than the RQ. Once the car is unloaded by the 
consignee and ready for return to the original shipper, the rail car no 
longer contains the reportable quantity, would not be subject to the 
HMR, and would not be shipped as a regulated material. This requires 
the waybill to be changed and all placards and markings removed for the 
return shipment. Bayer said that this situation has created a 
compliance nightmare for shippers, its customers, and the various State 
and Federal enforcement agencies. The railroads are confused because a 
loaded car is moved into a facility under the HMR, but is offered for 
the return shipment as a non-regulated car.
    On January 31, 1997, the Federal Railroad Administration (FRA) 
issued a memorandum (Ref. No. HM-97-4) to its Regional Administrators 
and Railroad Safety Specialists for hazardous materials. In the 
memorandum, FRA said a rail car that contains any material (or its 
mixture) listed in Appendix A to the Sec.  172.101 Hazardous Materials 
Table in a quantity less than its RQ in one package, is not subject to 
the requirements of the HMR, provided the material does not meet the 
criteria for any other hazard class and is not a hazardous waste or a 
marine pollutant. FRA also said that the determination of whether the 
package contains an RQ of the hazardous substance is the responsibility 
of the shipper. Generally, the shipper is not expected to actually 
measure the amount remaining after unloading, but can, in good faith, 
estimate it by using its knowledge of the material, the packaging, and 
the unloading method. Bayer said that an enormous amount of time is 
spent in trying to explain to the railroads and various enforcement 
agencies why a MDI rail car must return as non-regulated when it was 
originally offered under the HMR.
    We believe the petition has merit. Since a Class 9 hazardous 
substance is only subject to the HMR because of the RQ in one package, 
an empty packaging containing the residue of a Class 9 hazardous 
substance below its RQ is not subject to the HMR, including shipping 
paper requirements. In this rulemaking, we are clarifying that a tank 
car containing less than a reportable quantity of a Class 9 hazardous 
substance may be offered for transportation as a regulated material if 
the residue of this material is offered for transportation with all 
applicable hazard warning marks, placards and shipping papers. We 
propose to revise Sec.  172.514(b) to allow the markings and placards, 
if any, to remain on a returning rail car that contains a residue of a 
hazardous substance that only meets the definition of a Class 9 
material, and is not a hazardous waste or a marine pollutant.

C. Clarification of the Emergency Response Information and Training 
Requirements for Combustible Liquids

    A combustible liquid that is in a bulk packaging or a combustible 
liquid that is a hazardous substance, hazardous waste, or a marine 
pollutant is not subject to the requirements of the HMR except those 
prescribed in Sec.  173.150(f)(3) pertaining to: (1) Shipping papers, 
way bills, switching orders, and hazardous waste manifests; (2) marking 
of packages; (3) display of identification numbers on bulk packages; 
(4) placarding requirements of subpart F of part 172; (4) carriage 
aboard aircraft and vessels; (5) reporting incidents as specified in 
Sec.  171.15 and Sec.  171.16; (6) packaging requirements of subpart B 
of part 173 and, in addition, non-bulk packagings must conform with 
requirements of Sec.  173.203; and (7) the requirements of Sec. Sec.  
173.1, 173.21, 173.24, 173.24a; 173.24b, 174.1, 177.804; 177.817, 
177.834(j), and 177.837(d) of the HMR.
    However, the emergency response information and training 
requirements prescribed in subparts G and H of part 172 of the HMR are 
currently not specified in the requirements in Sec.  173.150(f)(3), 
although we did not intend to exempt such shipments from these 
requirements. To correct this oversight, we are proposing to revise 
Sec.  173.150(f)(3) to clarify that the emergency response information 
and training requirements of subparts G and H of part 172, 
respectively, apply to a shipment of a combustible liquid in a bulk 
packaging or to a combustible liquid that is a hazardous substance, 
hazardous waste, or a marine pollutant.

VI. Security Plans

    On March 25, 2003, we published a final rule under Docket HM-232 
(68 FR 14510) that requires persons who offer for transportation and 
persons who transport in commerce certain hazardous materials to 
develop and implement security plans. Among the hazardous materials 
subject to the security plan requirement are infectious substances that 
are select agents and toxins regulated by the Centers for Disease 
Control and Prevention under 42 CFR part 73. Since publication of the 
HM-232 final rule, several carriers have suggested that carrier 
employees may not know that a package contains a select agent and, 
therefore, is subject to security plan requirements, unless that fact 
is communicated to the carrier. To address this potential problem, in 
this NPRM, we are proposing to add a new paragraph (p) to Sec.  172.203 
that would require each person who offers a select agent for 
transportation in commerce to include the words ``Select Agent'' in 
association with the basic shipping description on the shipping paper 
that accompanies the shipment. Commenters are invited to suggest 
alternative methods for addressing this issue; we may modify this 
proposal in the final rule based on comments received.

VII. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM 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 
August 15, 1994 NPRM and subsequently modified for the January 8, 1997 
HM-206 final rule is available in the docket. The implementation of 
certain provisions of this proposal (i.e., allowances for continued use 
of the previous PIH placards and labels) reduce or eliminate impacts 
from the proposed changes. Therefore, the costs and benefits associated 
with this proposed rule are considered to be so minimal as to not 
warrant changes to the regulatory evaluation.

[[Page 34888]]

B. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 
(``Federalism''). This proposed rule would preempt 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.
    The 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 
subjects:
    (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 proposed rule addresses covered subject items 1, 2, and 3 
above and would preempt State, local, and Indian tribe requirements not 
meeting the ``substantively the same''standard. This proposed rule is 
necessary to improve the safety of emergency responders and the public, 
and of offerors and transporters of hazardous materials.
    Federal hazardous materials transportation law provides at Sec.  
5125(b)(2) that, if DOT issues a regulation concerning any of the 
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 a final 
rule and not later than two years after the date of issuance. RSPA 
proposes that the effective date of Federal preemption will be 90 days 
from publication of a final rule in this matter in the Federal 
Register.

C. Executive Order 13175

    This proposed 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 proposed rule does not have tribal implications 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 determines a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
The proposals in this NPRM will impose only minimal new costs of 
compliance on the regulated industry and, in fact, should reduce 
overall costs of compliance. I hereby certify that while the proposals 
in this NPRM apply to a substantial number of small entities, there 
will not be a significant economic impact on those small entities.
    Need for the NPRM. We are proposing changes to the hazard 
communication requirements in the HMR based on petitions for 
rulemaking, requests for clarification, and our own determination that 
clarifications and improvements may be appropriate. This action is 
being taken to improve safety and enhance emergency response to 
hazardous materials incidents.
    Description of Actions. In this NPRM, we propose to amend the HMR 
to:

--Clarify that beeper numbers and call-back systems that require an 
emergency responder to wait for a return telephone call do not conform 
to the requirements for an emergency response telephone number on 
shipping papers.
--Revise certain package marking requirements to more accurately convey 
information about the material being transported to emergency 
responders, transport workers, and the general public.
--Revise the PIH labels and placards to increase the size of the skull-
and-crossbones symbol.
--Permit more flexibility in color requirements for placards.
--Provide exceptions for the return transportation of rail cars that 
contain residues of hazardous substances so that placards and required 
markings need not be removed.

    In addition, we are proposing several clarifications and editorial 
revisions to current hazard communication requirements.
    Identification of potentially affected small entities. Businesses 
likely to be affected by the final rule are shippers and transporters 
of hazardous materials. Unless alternative definitions have been 
established by the agency in consultation with the Small Business 
Administration (SBA), the definition of ``small business'' has the same 
meaning as under the Small Business Act. Since no such special 
definition has been established, we employ the thresholds published by 
SBA for industries subject to the HMR. Based on data for 1997 compiled 
by the U.S. Census Bureau, it appears that upwards of 95 percent of 
firms subject to this final rule are small businesses. For the most 
part, these entities will incur minimal costs to comply with the 
proposals in this NPRM.
    Reporting and recordkeeping requirements. This NPRM does not 
propose new reporting or recordkeeping requirements.
    Related Federal rules and regulations. With respect to hazard 
communication requirements for hazardous materials transported in 
commerce, there are no related rules or regulations issued by other 
departments or agencies of the Federal Government.
    Alternate proposals for small businesses. The Regulatory 
Flexibility Act directs agencies to establish exceptions and differing 
compliance standards for small businesses, where it is possible to do 
so and still meet the objectives of applicable regulatory statutes. In 
the case of hazard communication requirements for hazardous materials 
transported in commerce, it is not possible to establish exceptions or 
differing standards and still accomplish the objectives of Federal 
hazmat law.
    This NPRM was developed under the assumption that small businesses 
make up the overwhelming majority of entities that will be subject to 
its provisions. Thus, we considered how to minimize expected compliance 
costs as we developed this NPRM. For example, the NPRM proposes to 
minimize the burden associated with the revised PIH labels and placards 
by providing a lengthy transition period. Other proposed changes 
provide clarification of certain provisions to eliminate confusion and 
enhance compliance. In addition, we are proposing several exceptions 
from current requirements to decrease compliance burdens.
    Conclusion. We conclude that while this NPRM applies to a 
substantial number of small entities, there will not be a significant 
economic impact on

[[Page 34889]]

those small entities. The compliance costs associated with proposed 
requirements in this NPRM are minimal. Moreover, this NPRM should 
reduce compliance costs for most of the regulated industry by providing 
for increased flexibility and new exceptions from current regulatory 
requirements.

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 proposed rule does not propose 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 proposed 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. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and prepare a detailed statement on actions significantly affecting the 
quality of the human environment. The proposed improvements to the 
hazard communication system in this rule would have a net positive 
effect on the environment by improving response to and mitigation of 
incidents involving hazardous materials in transportation. We have 
determined that there would be no significant environmental impact 
associated with this proposed rule.

List of Subjects

49 CFR Part 171

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

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labels, 
Markings, Packaging and containers, Reporting and recordkeeping 
requirements.

49 CFR Part 173

    Shippers--general requirements for shipments and packagings.

    In consideration of the foregoing, 49 CFR parts 171, 172 and 173 
would be amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

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

    2. In Sec.  171.7, in paragraph (a)(3), a new entry would be added 
in numerical order under the entry for American Society for Testing and 
Materials; and in paragraph (b), a new entry would be added in 
alphabetical order to read as follows:


Sec.  171.7  Reference material.

    (a) Matter incorporated by reference. * * *
    (3) Table of material incorporated by reference. * * *

------------------------------------------------------------------------
          Source and name of material                49 CFR reference
------------------------------------------------------------------------
 
                              * * * * * * *
American Society for Testing and Materials
 
                              * * * * * * *
ASTM D 4956-95 Standard Specification for               172.407, 172.519
 Retroreflective Sheeting for Traffic Control
 
                               * * * * * *
------------------------------------------------------------------------

    (b) List of information materials not requiring incorporation by 
reference. * * *

------------------------------------------------------------------------
          Source and name of material                49 CFR reference
------------------------------------------------------------------------
 
                              * * * * * * *
Pantone Incorporated, 590 Commerce Boulevard,           172.407, 172.519
 Carlstadt, New Jersey, 07072-3098; PANTONE
 [reg] Formula Guide, 2000-2001
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *
    3. In Sec.  171.14, paragraphs (a) and (b) would be removed, and 
new paragraphs (a) and (b) would be added to read as follows:


Sec.  171.14  Transitional provisions for implementing certain 
requirements.

    (a) Continued use provisions and transition dates for PIH labels. 
Notwithstanding Sec. Sec.  172.416 and 172.429 of this subchapter, when 
labels are required by subpart E of part 172 of this subchapter to be 
affixed to the surface of a package containing a material poisonous by 
inhalation--
    (1) A non-permanent label (adhesive, paper, etc.), that conforms to 
the requirements of this subchapter in effect on October 1, 2002, may 
continue to be used until stocks have been depleted, or until October 
1, 2004, whichever comes first; and

[[Page 34890]]

    (2) A permanent label that conforms to the specifications in effect 
on October 1, 2002, that was printed, embossed, stamped, or 
permanently-mounted on the surface of a package prior to October 1, 
2003, may continue to be used for its useful life.
    (b) Continued use provisions and transition dates for PIH placards. 
Notwithstanding Sec. Sec.  172.540 and 172.555 of this subchapter, when 
placards are required by subpart F of part 172 of this subchapter to be 
affixed to a bulk packaging, rail car, transport vehicle or freight 
container containing a material poisonous by inhalation--
    (1) A non-permanent placard (e.g., adhesive, tagboard) that 
conforms to the requirements of this subchapter in effect on October 1, 
2002, may continue to be used until stocks have been depleted, or until 
October 1, 2006, whichever comes first; and
    (2) A permanent type placard (e.g., metal) that conforms to the 
specifications in effect on October 1, 2002 and is installed prior to 
October 1, 2003, may continue to be used for its useful life.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION AND 
TRAINING REQUIREMENTS

    4. The authority citation for part 172 would continue to read as 
follows:

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

    5. In Sec.  172.203, paragraph (p) would be added to read as 
follows:


Sec.  172.203  Additional description requirements.

* * * * *
    (p) Infectious substances. If an infectious substance is a select 
agent or toxin regulated by the Centers for Disease Control and 
Prevention under 42 CFR part 73, the words ``Select Agent'' must be 
entered in association with the basic description.
    6. In Sec.  172.301, paragraph (f) would be added to read as 
follows:


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

* * * * *
    (f) NON-ODORIZED marking on cylinders containing LPG. No person may 
offer for transportation or transport a specification cylinder, except 
a Specification 2P or 2Q container or a Specification 39 cylinder, that 
contains an unodorized liquefied petroleum gas (LPG) unless it is 
legibly marked NON-ODORIZED in letters not less than 6.3 mm (0.25 
inches) in height near the marked proper shipping name required by 
paragraph (a) of this section.
    7. In Sec.  172.326, paragraph (d) would be added to read as 
follows:


Sec.  172.326  Portable tanks.

* * * * *
    (d) NON-ODORIZED marking on portable tanks containing LPG. No 
person may offer for transportation or transport a portable tank 
containing liquefied petroleum gas (LPG) that is unodorized as 
authorized in Sec.  173.315(b)(1) unless it is legibly marked NON-
ODORIZED on two opposing sides near the marked proper shipping name 
required by paragraph (a) of this section.
    8. In Sec.  172.328, paragraph (d) would be added to read as 
follows:


Sec.  172.328  Cargo Tanks.

* * * * *
    (d) NON-ODORIZED marking on cargo tanks containing LPG. No person 
may offer for transportation or transport a cargo tank containing 
liquefied petroleum gas (LPG) that is unodorized as authorized in Sec.  
173.315(b)(1) unless it is legibly marked NON-ODORIZED on two opposing 
sides near the marked proper shipping name required by paragraph (b)(1) 
of this section.
    9. In Sec.  172.330, paragraph (c) would be added to read as 
follows:


Sec.  172.330  Tank cars and multi-unit tank car tanks.

* * * * *
    (c) No person may offer for transportation or transport a tank car 
or multi-unit tank car tank containing liquefied petroleum gas (LPG) 
that is unodorized unless it is legibly marked NON-ODORIZED on two 
opposing sides near the marked proper shipping name required by 
paragraphs (a)(1) and (a)(2) of this section.
    10. In Sec.  172.332, paragraphs (c)(5) and (c)(6) would be 
redesignated as paragraphs (c)(6) and (c)(7), and a new paragraph 
(c)(5) would be added to read as follows:


Sec.  172.332  Identification number markings.

* * * * *
    (c) * * *
    (5) For a POISON GAS or POISON-INHALATION HAZARD placard used to 
display an identification number, the lower point of the upper black 
square-on-point configuration above the horizontal center line may 
overlap, be clipped-off, or impinge on space authorized for display of 
an identification number on a placard, provided the identification 
number is legible and visible.
* * * * *
    11. In Sec.  172.336, new paragraph (b)(2) would be added to read 
as follows:


Sec.  172.336  Identification numbers, special provisions.

* * * * *
    (b) * * *
    (2) For any quantity of an organic peroxide, temperature controlled 
material required to be placarded in accordance with the requirements 
in Sec.  172.504(e), Table 1, the identification number specified for 
the material in the Sec.  172.101 table must be marked on each side and 
each end of a bulk packaging, unit load device, transport vehicle, 
freight container, or rail car, as specified in Sec.  172.332.
* * * * *
    12. In Sec.  172.400, in the table in paragraph (b), the entries 
for ``6.1'' would be revised to read as follows:


Sec.  172.400  General labeling requirements.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                    Label design section
    Hazard class or division         Label name           reference
------------------------------------------------------------------------
 
                              * * * * * * *
6.1 (material poisonous by       POISON INHALATION               172.429
 inhalation (see Sec.   171.8     HAZARD.
 of this subchapter)).
6.1 (other than material         POISON...........               172.430
 poisonous by inhalation).
 
                              * * * * * * *
------------------------------------------------------------------------


[[Page 34891]]

    13. In Sec.  172.400a, paragraph (a)(1) would be revised to read as 
follows:


Sec.  172.400a  Exceptions from labeling.

    (a) * * *
    (i) A cylinder or Dewar flask conforming to Sec.  173.320 of this 
subchapter containing a compressed gas (Divisions 2.1, 2.2, or 2.3) 
that is--
    (i) Carried by highway, rail, aircraft or vessel;
    (ii) Not overpacked; and
    (iii) Durably and legibly marked in accordance with CGA Pamphlet C-
7, Appendix A (incorporated by reference; see Sec.  171.7 of this 
subchapter).
* * * * *
    14. In Sec.  172.402, paragraph (h) would be added to read as 
follows:


Sec.  172.402  Additional labeling requirements.

* * * * *
    (h) Division 5.2 (organic peroxide) Materials. Unless otherwise 
specified in this subchapter, a Flammable Liquid subsidiary hazard 
label is not required on a package containing a Division 5.2 material.
    15. In Sec.  172.407, paragraph (d)(5) would be revised and 
paragraphs (d)(6), (d)(7) and (d)(8) would be added to read as follows:


Sec.  172.407  Label specifications.

* * * * *
    (d) * * *
    (5) The following color standards in the Pantone[reg] Formula 
Guide, as incorporated by reference in Sec.  171.7 of this subchapter, 
may be used to achieve the required colors on markings and hazard 
warning labels and placards:
    (i) Red--Pantone Color No. 186U
    (ii) Orange--Pantone Color No. 151U
    (iii) Yellow--Pantone Color No. 109U
    (iv) Green--Pantone Color No. 335U
    (v) Blue--Pantone Color No. 285U
    (vi) Purple--Pantone Color No. 513U
    (6) Where specific colors from the Pantone[reg] Matching System, as 
incorporated by reference in Sec.  171.7 of this subchapter, are 
applied as opaque coatings, such as paint, enamel, or plastic, or where 
labels are printed directly on the surface of a packaging, a 
spectrophotometer or other instrumentation must be used to ensure a 
proper match with the color standards in the Pantone[reg] Color Formula 
Guide for colors prescribed in paragraph (d)(5) of this section.
    (7) The specified label color must extend to the edge of the label 
in the area designated on each label, except for the CORROSIVE, 
RADIOACTIVE YELLOW-II, and RADIOACTIVE YELLOW-III labels on which the 
color must extend only to the inner border.
    (8) Reflective or retroreflective materials may be used on a label 
if the prescribed colors, strength and durability are maintained. 
Retroreflective white and red Type V sheeting conforming to ASTM D 
4956-95, Standard Specification for Retroreflective Sheeting for 
Traffic Control (incorporated by reference; see Sec.  171.7 of this 
subchapter) may be used, as appropriate, for red and white colors on a 
label.
* * * * *
    16. Section 172.416 would be revised to read as follows:


Sec.  172.416  POISON GAS label.

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

[[Page 34892]]

[GRAPHIC] [TIFF OMITTED] TP11JN03.002

    (b) In addition to complying with Sec.  172.407, the background on 
the Poison Gas label and the symbol must be white. The background of 
the upper diamond must be black and the lower point of the upper 
diamond must be 6.3 mm (0.25 inches) above the horizontal center line.
    17. Section 172.429 would be revised to read as follows:


Sec.  172.429  Poison Inhalation Hazard label.

    (a) Except for size and color, the POISON INHALATION HAZARD label 
must be as follows:

[[Page 34893]]

[GRAPHIC] [TIFF OMITTED] TP11JN03.003

    (b) In addition to complying with Sec.  172.407, the background on 
the POISON INHALATION HAZARD label and the symbol must be white. The 
background of the upper diamond must be black and the lower point of 
the upper diamond must be 6.3 mm (0.25 inches) above the horizontal 
center line.
    18. In Sec.  172.504, in paragraph (e), the entry ``6.1'' in tables 
1 and 2, footnote 1 to table 1, and paragraph (f)(9) would be revised 
to read as follows:


Sec.  172.504  General placarding requirements.

* * * * *
    (e) * * *

                                 Table 1
------------------------------------------------------------------------
  Category of material (Hazard
  class of division number and                         Placard design
   additional description, as       Placard name      section reference
          appropriate)
------------------------------------------------------------------------
 
                              * * * * * * *
6.1 (material poisonous by       POISON INHALATION               172.555
 inhalation (see Sec.   171.8     HAZARD.
 of this subchapter))
 
                              * * * * * * *
------------------------------------------------------------------------
 \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.


[[Page 34894]]


                                 Table 2
------------------------------------------------------------------------
  Category of material (Hazard
  class of division number and                         Placard design
   additional description, as       Placard name      section reference
          appropriate)
------------------------------------------------------------------------
 
                              * * * * * * *
6.1 (other than material         POISON...........               172.554
 poisonous by inhalation
 
                              * * * * * * *
------------------------------------------------------------------------

    (f) * * *
    (9) For Class 9, a CLASS 9 placard is not required for domestic 
transportation, including that portion of international transportation, 
defined in Sec.  171.8 of this subchapter, which occurs within the 
United States. However, a bulk packaging must be marked with the 
appropriate identification number on a CLASS 9 placard, an orange 
panel, or a white square-on-point display configuration as required by 
subpart D of this part.
* * * * *
    19. In Sec.  172.514, paragraph (b) would be revised to read as 
follows:


Sec.  172.514  Bulk packagings.

* * * * *
    (b) Each bulk packaging that is required to be placarded when it 
contains a hazardous material, must remain placarded when it is 
emptied, unless it--
    (1) Is sufficiently cleaned of residue and purged of vapors to 
remove any potential hazard;
    (2) Is refilled, with a material requiring different placards or no 
placards, to such an extent that any residue remaining in the packaging 
is no longer hazardous; or
    (3) Contains the residue of a hazardous substance in Class 9 in a 
quantity less than the reportable quantity, and conforms to Sec.  
173.29(b)(1) of this subchapter.
* * * * *
    20. In Sec.  172.519, paragraphs (a)(3) and (d)(3) would be revised 
to read as follows:


Sec.  172.519  General specification for placards.

    (a) * * *
    (3) Reflective or retroreflective materials may be used on a 
placard if the prescribed colors, strength and durability are 
maintained. Retroreflective white and red Type V sheeting conforming to 
ASTM D 4956-95, Standard Specification for Retroreflective Sheeting for 
Traffic Control (incorporated by reference; see Sec.  171.7 of this 
subchapter) may be used, as appropriate, for red and white colors on a 
placard.
* * * * *
    (d) * * *
    (3) Upon visual examination, a color on a placard must fall within 
the--
    (i) Color tolerances displayed on the appropriate Hazardous 
Materials Label and Placard Color Tolerance Chart (see Sec.  
172.407(d)(4)); or
    (ii) The Pantone[reg] Color Formula Guide, as incorporated by 
reference in Sec.  171.7 of this subchapter, as specified for colors in 
Sec.  172.407(d)(5).
* * * * *
    21. Section 172.540 would be revised to read as follows:


Sec.  172.540  Poison GAS placard.

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

[[Page 34895]]

[GRAPHIC] [TIFF OMITTED] TP11JN03.004

    (b) In addition to complying with Sec.  172.519, the background on 
the Poison Gas placard and the symbol must be white. The background of 
the upper diamond must be black and at least 100 mm (3.9 inches) on 
each side. The lower point of the upper diamond must be 30 mm (1.2 
inches) above the horizontal center line. The text, class number, and 
inner border must be black.
    22. Section 172.555 would be revised to read as follows:


Sec.  172.555  POISON INHALATION HAZARD placard.

    (a) Except for size and color, the POISON INHALATION HAZARD 
placarst be as follows:

[[Page 34896]]

[GRAPHIC] [TIFF OMITTED] TP11JN03.005

    (b) In addition to complying with Sec.  172.519, the background on 
the POISON INHALATION HAZARD placard and the symbol must be white. The 
background of the upper diamond must be black and at least 100 mm (3.9 
inches) on each side. The lower point of the upper diamond must be 30 
mm (1.2 inches) above the horizontal center line. The text, class 
number, and inner border must be black.
    23. In Sec.  172.604, paragraph (a)(2) would be revised to read as 
follows:


Sec.  172.604  Emergency response telephone number.

    (a) * * *
    (2) The number of a person who is either knowledgeable of the 
hazardous material being shipped and has comprehensive emergency 
response and incident mitigation information for that material, or has 
immediate access to a person who possesses such knowledge and 
information. A telephone number that requires a call back (such as an 
answering service, answering machine, or beeper device) does not meet 
the requirements of paragraph (a) of this section; and
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    24. The authority citation for part 173 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 44701; 49 CFR 1.45, 1.53.


[[Page 34897]]


    25. In Sec.  173.9, paragraph (e)(1) would be revised to read as 
follows:


Sec.  173.9  Transport vehicles or freight containers containing lading 
which has been fumigated.

* * * * *
    (e) * * *
    (1) The fumigated lading is unloaded; or
* * * * *
    26. In Sec.  173.29, the introductory text at paragraph (c) would 
be revised and paragraph (h) would be added to read as follows:


Sec.  173.29  Empty packagings.

* * * * *
    (c) A non-bulk packaging containing only the residue of a hazardous 
material covered by Table 2 of Sec.  172.504 of this subchapter that is 
not a material poisonous by inhalation or its residue shipped under the 
subsidiary placarding provisions of Sec.  172.505--
* * * * *
    (h) A package that contains a residue of a hazardous substance, 
Class 9, listed in the Sec.  172.101 Table, Appendix A, Table I, that 
does not meet the definition of another hazard class and is not a 
hazardous waste or marine pollutant, may remain marked, labeled, and/or 
placarded in the same manner as when it contained a greater quantity of 
the material even though it no longer meets the definition in Sec.  
171.8 of this subchapter for a hazardous substance.
    27. In Sec.  173.150, in paragraph (f)(3), the title of the section 
and paragraphs (vii) and (viii) would be revised and paragraphs (ix) 
and (x) would be added to read as follows:


Sec.  173.150  Exceptions for Class 3 (flammable and combustible 
liquids).

* * * * *
    (f) * * *
    (3) * * *
    (vii) Packaging requirements of subpart B of this part and, in 
addition, non-bulk packagings must conform with requirements of Sec.  
173.203;
    (viii) The requirements of Sec. Sec.  173.1, 173.21, 173.24, 
173.24a, 173.24b, 174.1, 177.804, 177.817, 177.834(j), and 177.837(d) 
of this subchapter;
    (ix) Emergency response information requirements of subpart G of 
part 172, and
    (x) Training requirements of subpart H of part 172 of this 
subchapter.
* * * * *

    Issued in Washington, DC, on June 4, 2003, under authority 
delegated in 49 CFR part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 03-14583 Filed 6-10-03; 8:45 am]
BILLING CODE 4910-60-P