[Federal Register Volume 76, Number 249 (Wednesday, December 28, 2011)]
[Rules and Regulations]
[Pages 81396-81400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33193]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 173

[Docket No. PHMSA-2009-0151(HM-218F)]
RIN 2137-AE84


Hazardous Materials: Miscellaneous Amendments; Response to 
Appeals; Corrections

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Correcting amendments.

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SUMMARY: On July 20, 2011, PHMSA published a final rule under Docket 
Number PHMSA-2009-0151 (HM-218F) making miscellaneous amendments to the 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The 
amendments made by PHMSA in the July 20, 2011 final rule promote safer 
transportation practices; eliminate unnecessary regulatory 
requirements; finalize outstanding petitions for rulemaking; facilitate 
international commerce; and simplify the regulations. This final rule 
corrects errors in the pictorial display of labels, eliminates 
references to transitional provisions that were previously removed from 
the HMR, clarifies shipping paper amendments, corrects an editorial 
error, and extends the effective date of certain shipping paper 
amendments adopted in the July 20, 2011 final rule.

DATES: These correcting amendments are effective December 28, 2011. A 
delayed compliance date of August 19, 2012 is authorized for shipping 
paper amendments in this final rule.

FOR FURTHER INFORMATION CONTACT: Deborah L. Boothe, Standards and 
Rulemaking Division, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

A. Notice of Proposed Rulemaking

    On September 29, 2010, PHMSA published a Notice of Proposed 
Rulemaking (NPRM) under this docket HM-218F (74 FR 16135). The NPRM 
proposed amendments to the Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) based on PHMSA initiatives and petitions for rulemaking 
submitted in accordance with 49 CFR 106.95. The amendments proposed in 
the NPRM were intended to provide relief to industry by eliminating, 
revising, clarifying, or relaxing regulatory requirements.
    The comment period for the NPRM closed on November 29, 2010. Eleven 
commenters provided comments in response to the NPRM. PHMSA received 
comments from the following companies, and organizations:
     United Parcel Service (UPS)
     Worthington Cylinder Corporation (Worthington)
     Veolia Environmental Services
     Institute of Makers of Explosives (IME)
     PPG Industries, Inc.
     Barlen and Associates, Inc.
     Arrowhead Industrial Services USA, Inc.
     New England Fuel Institute
     Stericycle, Inc.
     Truck Trailer Manufacturers Association (TTMA)
     American Trucking Associations (ATA)

B. Final Rule

    On July 20, 2011, PHMSA issued a final rule titled ``Hazardous 
Materials: Miscellaneous Amendments'' under Docket Number PHMSA-2009-
0151(HM-218F) (76 FR 43510) amending the Hazardous Materials 
Regulations (HMR; 49 CFR parts 171-180) by making miscellaneous 
amendments to update and clarify certain regulatory requirements. Based 
on an assessment of the proposed changes and the comments received, 
PHMSA's July 20, 2011 final rule covered the following topics:
     Materials incorporated by reference
     Definition of ``person''
     Consolidation bins
     Transitional provisions

[[Page 81397]]

     Reporting infectious substances incidents
     Hazard communication for IBCs
     Hazardous Materials Table Revisions
     Hazard Communication
     Exclusive use vehicles for regulated medical waste (RMW)
     Fireworks
     Explosives
     Rail Transloading Operations
     Cylinders
     Cargo Tanks
     Permeation Devices
     Alcoholic beverage exception
     Special Permits
     Lab Packs
     Batteries containing sodium or cells containing sodium

II. Appeals to the Final Rule

A. List of Appellants

    In this final rule, we respond to appeals submitted in response to 
the July 20, 2011 final rule. The following organizations submitted 
appeals:
     The Dangerous Goods Advisory Council (DGAC)
     Council on Safe Transportation of Hazardous Articles, Inc. 
(COSTHA)
     Dangerous Goods Management USA Atlanta (DGM USA Atlanta)
     Bureau of Explosives (BOE) Publications.

B. Discussion of Appeals by Section

    The specific concerns raised by the appellants are outlined below 
by section:
Section 172.203
    Section 172.203 of the HMR provides additional shipping paper 
description requirements for hazardous materials. On May 30, 2005, 
PHMSA received a petition for rulemaking from the Association of 
American Railroads (petition number P-1456; Docket Number PHMSA-2005-
21198) requesting that we require shipping papers to include a notation 
for shipments of non-odorized liquefied petroleum gas (LPG). Due to 
safety risks posed by non-odorized LPG, PHMSA agreed with the petition.
    On September 29, 2010, PHMSA published a Notice of Proposed 
Rulemaking (NPRM) (74 FR 16135) proposing to incorporate the AAR 
petition. To ensure that emergency responders are made aware when a 
shipment of LPG is not odorized, PHMSA proposed to add a new paragraph 
(p) to Sec.  172.203 to require the words ``non-odorized'' to precede 
the proper shipping name when a non-odorized LPG is offered for 
transportation. PHMSA received one comment from New England Fuel 
Institute (NEFI) supporting this proposed amendment. PHMSA received no 
comments opposing the requirement.
    On July 29, 2011, DGAC submitted an appeal addressing the new Sec.  
172.203(p). In its appeal, DGAC requests that PHMSA provide a delayed 
compliance date for the amendment; authorize the wording to be located 
in association with the proper shipping description (rather than 
preceding) to facilitate international commerce; and, consistent with 
Sec. Sec.  172.328(d) and 172.330(c), authorize the use of the words 
``not-odorized'' or ``non-odorized.''
    DGAC indicates that persons with preprinted shipping papers will 
need more time beyond the August 19, 2011 effective date of the July 
20, 2011 final rule to comply with the new Sec.  172.203(p). DGAC's 
requests at least a one-year transition period for compliance to be 
fully accomplished. We agree. Section 172.101(l)(1)(ii) provides 
delayed compliance of up to one year from the effective date of the 
rule. This ensures that individuals are provided sufficient time to 
deplete existing stocks of preprinted shipping papers and package 
markings. Therefore, this preamble discussion clarifies that mandatory 
compliance with the provision in new Sec.  172.203(p) is delayed until 
August 19, 2012. Further, PHMSA is correcting the final rule to clarify 
that the words ``not-odorized'' or ``non-odorized'' may be used and 
must be located in association with the proper shipping description.
Sections 172.432 and 172.446
    Section 172.432 describes the INFECTIOUS SUBSTANCE label size and 
color and provides an illustration of how it must appear. References to 
the Centers for Disease Control (CDC) are no longer required on this 
label. Therefore, in the September 29, 2010 NPRM, PHMSA proposed to 
remove the text that refers to the CDC on the label. The text states 
``In U.S.A. Notify Director--CDC, Atlanta, GA 1-(800) 232-0124.'' PHMSA 
proposed to allow three years from the effective date of the final rule 
to use up existing stocks of preprinted labels. PHMSA received no 
comments on this proposed amendment and adopted it as proposed in the 
July 20, 2011 final rule.
    Section 172.446 describes the Class 9 (miscellaneous hazardous 
materials) label specifications, including size, color, and an 
illustration. The illustration in Sec.  172.446 shows a thin, 
horizontal line running across the label at its midpoint (just at the 
bottom of the vertical black bars). The line does not exist in the 
International Civil Aviation Organization (ICAO) Technical Instructions 
or the International Maritime Dangerous Good (IMDG) Code. The 
difference has resulted in some international shipments being relabeled 
in transit, causing delays. In an effort to avoid continued frustrated 
or delayed shipments, PHMSA proposed, in the September 29, 2010 NPRM, 
to revise the Class 9 (miscellaneous hazardous materials) label 
specifications by removing the horizontal line running across the label 
at its midpoint. PHMSA proposed a three-year transition period from the 
effective date of the final rule to deplete existing stocks. PHMSA 
received one comment from the United Parcel Service, Inc. supporting 
the amendment for its potential to eliminate shipment delays. 
Therefore, in the July 20, 2011 final rule the amendment was adopted as 
proposed.
    On August 5, 2011, COSTHA submitted an appeal expressing concerns 
about the redesigned INFECTIOUS SUBSTANCE and Class 9 (miscellaneous 
hazardous materials) labels and continued lack of consistency with the 
international labels. COSTHA also expressed concerns regarding the 
August 19, 2011 effective date of the final rule. COSTHA expressed 
concern that because the text in the INFECTIOUS SUBSTANCE label is 
located in the center of the label instead of just below the center 
line, as currently shown in the HMR, would create problems when 
shipping internationally. COSTHA requests PHMSA relocate the text below 
the center line of the label to avoid problems when shipping 
internationally. Additionally, COSTHA is appealing the Class 9 label 
design stating that the vertical bars on either side of the label are 
incorrectly shown in the label illustration. PHMSA agrees with COSTHA's 
appeal and is correcting the INFECTIOUS SUBSTANCE and Class 9 
(miscellaneous hazardous materials) label designs, as requested, in 
this final rule.
    COSTHA also expressed concerns regarding the August 19, 2011 
effective date of the final rule and the September 30, 2011 grandfather 
date for use of labels previously in effect. PHMSA agrees with COSTHA's 
appeal. PHMSA corrected the compliance date under a final rule titled, 
``Hazardous Materials: Minor Editorial Corrections and 
Clarifications,'' issued on September 13, 2011 under docket PHMSA-2011-
0134 (HM-244D) (76 FR 56304). The September 13, 2011 final rule amended 
the compliance date for the INFECTIOUS SUBSTANCE and Class 9 
(miscellaneous hazardous materials) labels to authorize labels in 
effect on

[[Page 81398]]

August 18, 2011 to continue to be used until January 1, 2014.
Section 173.32
    Section 173.32 prescribes requirements for the use of portable 
tanks. As amended by the July 20, 2011 final rule, the transitional 
provisions in Sec.  171.14 were removed and relocated to the 
appropriate section. However, PHMSA did not remove the text ``(see 
Sec.  171.14(d)(4) for transitional provisions applicable to T codes)'' 
in Sec.  173.32(c)(2). Therefore, we are correcting the section by 
removing this reference to Sec.  171.14(d)(4) transitional provisions 
for T codes.
Section 175.10
    Section 175.10 specifies the conditions for which passengers, crew 
members, or an operator may carry hazardous materials aboard an 
aircraft. In an international harmonization final rule published on 
January 19, 2011 (Docket PHMSA-2009-0126) (76 FR 3308), PHMSA added a 
new paragraph (a)(17) to permit a mobility aid such as a wheelchair, 
containing a lithium ion battery, to be transported in accordance with 
specific conditions. Since publication of the January 19, 2011 final 
rule, PHMSA has noted an inconsistency between the requirements of the 
ICAO Technical Instructions and the requirements of the HMR in relation 
to the acceptance of lithium battery powered mobility aids for 
transportation by aircraft. In particular, the HMR require the removal 
of the battery under certain conditions prior to transportation by 
aircraft. It is not our intent to be inconsistent with the requirements 
of the ICAO Technical Instructions in this regard. Thus, in the July 
20, 2011 final rule, we corrected the inconsistency in Sec.  
175.10(a)(17) to clearly indicate that batteries are not required to be 
removed.
    However, on August 29, 2011 PHMSA received an appeal from DGM USA 
Atlanta stating this amendment continues to be inconsistent with 
international standards. DGM indicates that batteries should not be 
removed if not necessary as many wheelchair and mobility aid 
manufacturers design the devices so that the batteries are not 
accessible and are constructed to prevent the battery from being 
removed. DGM requests PHMSA fully adopt the current ICAO Technical 
Instructions language in order to harmonize and reduce complexity of 
compliance with the regulations.
    PHMSA considers this requested change outside the scope of this 
rulemaking. Nonetheless, PHMSA believes that the request has merit and 
will address the concerns raised by DGM's appeal in a future 
rulemaking.
Section 174.104
    This section prescribes the general requirements for car selection, 
preparation, inspection, and certification of rail cars containing 
Division 1.1 or 1.2 (explosive) materials. We are revising paragraph 
(f) where the year on the certificate is referred to as ``19----'' to 
update it to reflect the year ``20----.'' This update to the 
certificate was not included in the corrections and clarifications in 
the final rule, Docket No. PHMSA-2011-0134 (HM-244D), Minor Editorial 
Corrections and Clarifications, published September 13, 2011 (76 FR 
56304).

III. Corrections and Amendments

    As indicated above, based on appeals submitted to the July 20, 2011 
final rule, this final rule is:
    1. Clarifying that the shipping paper amendments adopted in the 
July 20, 2011 final rule are provided a delayed compliance date of 
August 19, 2012 based on the provisions in Sec.  172.101(l)(l)(ii);
    2. Correcting the shipping paper amendments to allow the use of the 
words ``not- odorized'' or ``non-odorized'' in association with the 
proper shipping description for non odorized LPG shipments;
    3. Revising the erroneous display of the Class 9 (miscellaneous 
hazardous materials) label by correcting the width of the vertical 
lines on either side of the label in the graphic display;
    4. Revising the erroneous display of the INFECTIOUS SUBSTANCE label 
by moving the text below the center line of the label; and
    5. Correcting Sec.  173.32(c)(2) by removing the reference to 
``(see Sec.  171.14(d)(4) for transitional provisions applicable to T 
codes).''
    6. Correcting Sec.  174.104(f) by removing the references to the 
year ``19----'' on the certificate to the year ``20--.''

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    1. This final rule is published under authority of Federal 
hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 
5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the 
Secretary of Transportation to prescribe regulations for the safe 
transportation, including security, hazardous materials in intrastate, 
interstate, and foreign commerce.
    2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to 
ensure that, to the extent practicable, regulations governing the 
transportation of hazardous materials in commerce are consistent with 
standards adopted by international authorities.

 B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget (OMB). The final rule 
is not considered a significant rule under the Regulatory Policies and 
Procedures order issued by the U.S. Department of Transportation (44 FR 
11034).
    Executive Orders 12866 and 13563 require agencies to regulate in 
the ``most cost-effective manner,'' to make a ``reasoned determination 
that the benefits of the intended regulation justify its costs,'' and 
to develop regulations that ``impose the least burden on society.'' As 
discussed in this rulemaking, PHMSA amends various provisions in the 
HMR to clarify the provisions and to relax overly burdensome 
requirements. This final rule responds to appeals from industry 
associations to correct the label pictorial displays and extend the 
effective date of the shipping paper amendments. PHMSA anticipates the 
amendments contained in this rule generate economic benefits to the 
regulated community. This final rule is designed to increase the 
clarity of the HMR, thereby increasing voluntary compliance while 
reducing compliance costs.

C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
final 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.
    This final rule concerns the classification, packaging, marking, 
labeling, and handling of hazardous materials, among other covered 
subjects. As adopted, this rule preempts any state, local, or Indian 
tribe requirements concerning these subjects unless the non-Federal 
requirements are

[[Page 81399]]

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

D. 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''). Since this final rule 
does not have tribal implications and does not impose substantial 
direct compliance costs on Indian tribal governments, the funding and 
consultation requirements of Executive Order 13175 do not apply, and a 
tribal summary impact statement is not required.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    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 the rule is not expected to have a 
significant impact on a substantial number of small entities. This 
final rule would respond to appeals and correct label pictorial 
displays and extend the effective date of the shipping paper amendments 
from the July 20, 2011 final rule.
    Consideration of alternative 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 hazardous materials transportation, 
it is not possible to establish exceptions or differing standards and 
still accomplish our safety objectives.
    The impact of this final rule is not expected to be significant. 
The changes are generally intended to provide relief to shippers, 
carriers, and packaging manufacturers and testers, including small 
entities. The majority of entities affected by this rule are small 
entities. Although the rule will create less burden, the overall effect 
of this positive change is not significant. Therefore, this final rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

    This final rule imposes no new information collection and 
recordkeeping requirements.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

H. 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 
$141,300,000 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 objective of the rule.

I. 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. In the July 20, 2011 final rule, we 
developed an assessment to determine the effects of these revisions on 
the environment and whether a more comprehensive environmental impact 
statement may be required. Our findings conclude that there are no 
significant environmental impacts associated with this final rule. The 
amendments are intended to: Update, clarify, or provide relief from 
certain existing regulatory requirements to promote safer 
transportation practices; eliminate unnecessary regulatory 
requirements; finalize outstanding petitions for rulemaking; facilitate 
international commerce; and make these requirements easier to 
understand. For interested parties, a detailed environmental assessment 
is included with the July 20, 2011 final rule available in the public 
docket.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, 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 (65 FR 19477) or you 
may visit http://www.regulations.gov/search/footer/privacyanduse.jsp.

K. International Trade Analysis

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. Pursuant to these Acts, the establishment of 
standards is not considered an unnecessary obstacle to the foreign 
commerce of the United States, so long as the standards have a 
legitimate domestic objective, such as the protection of safety, and do 
not operate in a manner that excludes imports that meet this objective. 
The statute also requires consideration of international standards and, 
where appropriate, that they be the basis for U.S. standards. PHMSA 
notes the purpose is to ensure the safety of the American public, and 
has assessed the effects of this rule to ensure that it does not 
exclude imports that meet this objective. As a result, this rule is not 
considered as creating an unnecessary obstacle to foreign commerce.

List of Subjects

49 CFR Part 172

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

49 CFR Part 173

    Hazardous materials transportation, Incorporation by reference, 
Packaging and containers, Radioactive materials, Reporting and 
recordkeeping requirements, Uranium.

49 CFR Part 174

    Hazardous materials transportation, Radioactive materials, Rail 
carriers, Railroad safety, Reporting and recordkeeping requirements.

    Accordingly, 49 CFR parts 172, 173, and 174 are corrected by making 
the following correcting amendments:

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

0
1. The authority citation for Part 172 continues to read as follows:


[[Page 81400]]


    Authority:  49 U.S.C. 5101-5128, 44701; 49 1.53.


0
2. In Sec.  172.203, paragraph (p) is revised to read as follows:


Sec.  172.203  Additional description requirements.

* * * * *
    (p) Liquefied petroleum gas (LPG). The word ``non-odorized'' or 
``not-odorized'' must be included in association with the proper 
shipping description on a shipping paper when non-odorized liquefied 
petroleum gas is offered for transportation.

0
3. In Sec.  172.432, paragraph (a) is revised to read as follows:


Sec.  172.432  INFECTIOUS SUBSTANCE label.

    (a) Except for size and color, the INFECTIOUS SUBSTANCE label must 
be as follows:
[GRAPHIC] [TIFF OMITTED] TR28DE11.006

* * * * *

0
4. In Sec.  172.446, paragraph (a) is revised to read as follows:


Sec.  172.446  CLASS 9 label.

    (a) Except for size and color, the ``CLASS 9'' (miscellaneous 
hazardous materials) label must be as follows:
[GRAPHIC] [TIFF OMITTED] TR28DE11.007

* * * * *

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

0
5. The authority citation for part 173 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.


0
6. In Sec.  173.32, in paragraph (c)(2), the wording ``(see Sec.  
171.14(d)(4) for transitional provisions applicable to T codes)'' is 
removed.

PART 174--CARRIAGE BY RAIL

0
7. The authority citation for part 174 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.53.


Sec.  174.104  [Amended]

0
8. In Sec.  174.104, in paragraph (f), each reference to the year 
``19----'' on the certificate is removed and replaced with the year 
``20----.''

    Issued in Washington, DC, on December 21, 2011 under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-33193 Filed 12-27-11; 8:45 am]
BILLING CODE 4910-60-P