64462 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

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: Miscellaneous 

Changes to the Hazard Communication 

Requirements

AGENCY: Research and Special Programs 

Administration (RSPA), DOT.

ACTION: Final rule.

SUMMARY: This final rule amends the 

Hazardous Materials Regulations (HMR) 

to improve hazard communication for 

hazardous materials transported in 

commerce. Revisions adopted in this 

final rule include: permitting the use of 

the Pantone Formula, an industry guide 

for colors, for hazard warning labels and 

placards; expanding the use of labels 

specified in the Compressed Gas 

Association Pamphlet C–7 on cylinders 

used to transport Division 2.1, 2.2, or 

2.3 gases to all modes of transportation; 

requiring a NON–ODORIZED marking 

on certain cylinders, portable tanks, 

cargo tanks, and tank cars and multi 

unit tank car tanks containing 

unodorized liquefied petroleum gas; and 

allowing a FUMIGANT marking to be 

removed from a transport vehicle or 

freight container before the lading is 

unloaded if the vehicle has undergone 

sufficient aeration. Taken together, the 

revisions in this final rule will enhance 

hazard communication for the safe 

handling of hazardous materials in 

transportation and the prompt 

identification of hazardous materials 

involved in transportation incidents.

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.

DATES: Effective Date: The effective date 

of these amendments is October 1, 2005. 

Voluntary Compliance Date: RSPA is 

authorizing voluntary compliance with 

the amendments adopted in this final 

rule beginning December 6, 2004.

SUPPLEMENTARY INFORMATION:

List of Topics 

I. Background 

II. Provisions Adopted in this Final Rule 

III. Comments Made to the NPRM 

IV. Marking Requirements 

A. NON–ODORIZED marking on cylinders, 

portable tanks, cargo tanks, and tank cars 

containing liquefied petroleum gas 

B. Type B Organic peroxide identification 

number marking 

C. Fumigant marking 

V. 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) 

VI. Other Requirements for Labels and 

Placards 

A. Color standards for labels and placards 

B. ASTM D4956–01a (red and white) for 

retro 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. Residues of Class 9 (miscellaneous) 

hazardous substances, when less than 

RQ remains 

G. Footnote to Table 1 (placards)—editorial 

correction 

VII. Training and Emergency Response 

Information 

A. Emergency response telephone number 

requirements 

B. Clarification of the emergency response 

information and training requirements 

for Combustible liquids 

VIII. Security Plans Applicable to Select 

Agents 

IX. 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 

The Hazardous Materials Regulations 

(HMR; 49 CFR parts 171–180) include a 

wide variety of hazard identification 

and communication requirements for 

hazardous materials transportation. 

Generally, the HMR require packages of 

hazardous materials to be marked with 

the shipping name and identification 

number of the material contained in the 

package, and to display hazard warning 

labels. Placards and other markings 

must be affixed to a transport vehicle or 

bulk packaging containing hazardous 

materials. Hazardous materials must be 

described on a shipping paper that 

accompanies the shipment. The 

shipping paper or an associated 

document must contain emergency 

response information and the shipping 

paper must include an emergency 

response telephone number that is 

monitored at all times the 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, in part, to 

provide fire and emergency response 

personnel, transport workers, and the 

public with information in the event of 

a transportation incident involving the 

hazardous materials. The 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 

generally consistent with international 

standards for hazardous materials 

transportation. 

On June 11, 2003, the Research and 

Special Programs Administration 

(RSPA, we) published a notice of 

proposed rulemaking (NPRM; 68 FR 

34880) proposing a number of changes 

to enhance the identification of 

hazardous materials in transportation 

and improve the availability of 

emergency response information. The 

NPRM was based on several petitions 

for rulemaking, requests for 

clarification, and RSPA initiatives, and 

included clarifications and 

improvements to the shipping paper, 

identification number and other 

marking, labeling and placarding, and 

emergency response telephone number 

requirements. 

Emergency responders must know 

how to react appropriately in emergency 

situations in order to coordinate 

response actions that will protect 

human life and property. The changes to 

the hazard communication requirements 

adopted in this final rule will result in 

better response by, and protection of, 

emergency response personnel, fire or 

police personnel, and the general 

public. In addition, some of the changes 

adopted in this final rule will provide 

the regulated industry with additional 

flexibility to meet hazard 

communication requirements, thus 

reducing compliance burdens. Taken 

together, the amendments adopted in 

this final rule will help shippers and 

carriers to ensure that hazardous 

materials are transported with minimum 

risks to persons, property, and the 

environment.

II. Summary of Regulatory Changes 

In this final rule, we are adopting the 

following revisions to the HMR: 

• Permitting the use of Pantone

Formula, an industry guide for colors, 

for hazard warning labels and placards. 

• Expanding the use of labels 

specified in the Compressed Gas 

Association Pamphlet C–7 on cylinders 

used to transport Division 2.1, 2.2, or 

2.3 gases to all modes of transportation. 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64463

• Requiring a NON–ODORIZED 

marking on certain packages containing 

unodorized liquefied petroleum gas. 

• Allowing a FUMIGANT marking to 

be removed from a transport vehicle or 

freight container before the lading is 

unloaded provided the vehicle or freight 

container has undergone sufficient 

aeration. 

• Clarifying that beeper or other types 

of call-back systems do not meet the 

requirements in § 172.604 for emergency 

response telephone numbers. 

• Clarifying that international 

shipments of Class 9 materials may 

utilize the placarding exception for 

Class 9 materials while the shipment is 

being transported in the United States. 

• Clarifying that a return shipment of 

a package that contains less than a 

reportable quantity of a Class 9 

hazardous substance may be offered for 

transportation and transported with 

markings and placards in place. 

• Clarifying emergency response 

information and training requirements 

for combustible liquids. 

We are not adopting provisions 

proposed in the NPRM concerning the 

design of poison-by-inhalation labels 

and placards, the use of retro reflective 

materials for certain placards, marking 

requirement for shipments of 

temperature-controlled Type B organic 

peroxides, and the organic peroxide 

subsidiary FLAMMABLE LIQUID label. 

III. Comments Made to the NPRM 

RSPA received approximately 19 

written comments to the NPRM from 

trade associations, including the 

American Chemistry Council, 

Compressed Gas Association, National 

Propane Gas Association, National Pest 

Management Association, American 

Society of Safety Engineers, American 

Petroleum Institute, Association of 

American Railroads, American Trucking 

Associations, The Conference on Safe 

Transportation of Hazardous Articles, 

Inc., Commercial Vehicle Safety 

Alliance, and the International Vessel 

Operators Hazardous Materials 

Association, Inc.; chemical 

manufacturers; shippers and carriers of 

hazardous materials; and The Georgia 

Department of Motor Vehicle Safety. 

Overall the commenters support the 

regulatory amendments, clarifications, 

and transitional provisions in the NPRM 

because the actions will clarify several 

confusing regulations, assist shippers 

and carriers with hazardous materials 

compliance, and enhance hazard 

communication and emergency 

response. Several commenters raised 

concerns about certain provisions in the 

proposals. Relevant portions of these 

comments are discussed in detail in the 

following sections of this preamble. 

IV. Marking Requirements 

A. NON–ODORIZED Marking on Certain 

Cylinders, Portable Tanks, Cargo Tanks, 

and Tank Cars Containing Liquefied 

Petroleum Gases (§ 172.301; 172.326; 

172.328; and 172.330) 

Liquefied petroleum gases include 

butane, isobutane, propane, propylene 

(propene) butylenes (butenes), and any 

mixtures of these hydrocarbons. These 

gases are flammable, colorless, 

noncorrosive, and nontoxic. They are 

easily liquefied under pressure at 

ambient temperature, and are shipped 

and stored as liquids. They are largely 

used in gaseous and liquid form as fuels 

in many diverse applications. The gases 

are also denoted by the terms LP–Gas or 

LPG. 

In the NPRM, we proposed to require 

a NON–ODORIZED marking on certain 

cylinders, portable tanks, cargo tanks, 

and tank cars and multi unit tank car 

tanks containing Liquefied petroleum 

gas (LPG). There is a requirement in 

§ 173.315(b)(1) for LPG to be odorized in 

portable tanks and cargo tanks, unless 

odorization would be harmful to any 

further processing of the LPG. However, 

there are no odorization requirements in 

the HMR for LPG in cylinders or tank 

cars, nor in communicating the lack of 

odorization of LPG during 

transportation. Between 1978 and 1980, 

we received several petitions requesting 

updating of the LPG odorization 

requirements contained in the HMR; 

these petitioners requested that the 

HMR require LPG to be odorized in 

transportation or the lack of odorization 

to be visually communicated. In a July 

1978 Report to Congress on Liquefied 

Energy Gases, the General Accounting 

Office of the Comptroller General of the 

United States (GAO) recommended that 

vehicles transporting LPG display a sign 

indicating whether or not the LPG being 

transported was odorized. 

There currently is no requirement in 

the HMR for shippers to provide an 

indication as to whether the LPG being 

transported is odorized. The proposal 

stemmed from our concern that the lack 

of a warning that the material contained 

in the package was not odorized could 

cause emergency responders to make 

inappropriate decisions in mitigating an 

accident, potentially jeopardizing their 

safety or the public safety. Of the nine 

comments received on this issue, only 

one commenter opposes the NON–

ODORIZED marking provisions. 

The Association of American 

Railroads (AAR), the American Society 

of Safety Engineers (ASSE), the 

Conference on Safe Transportation of 

Hazardous Articles, Inc. (COSTHA), the 

International Vessel Operators 

Hazardous Materials Association, Inc. 

(VOHMA), Compressed Gas Association 

(CGA), Diversified CPC International 

(Diversified), Matheson Tri Gas 

(Matheson), and Praxair support RSPA 

taking action to require shippers to 

indicate when they are shipping nonodorized propane. The AAR agrees that 

the concern that emergency response 

personnel may overlook the possibility 

of a leak of non-odorized propane 

because of an expectation that any leak 

would have a detectable odor is well 

founded, since most shipments of 

propane contain an odorant. The ASSE 

states that the current lack of this 

additional hazard warning information 

could trigger inappropriate decisions by 

emergency responders, threatening their 

safety and that of the public community 

during incident control. In addition, 

VOHMA, CGA, and COSTHA state that 

shipping paper entries should also 

include the entry ‘‘Non-Odorized’’ so 

that carriers as well as emergency 

responders will be aware of and benefit 

from this additional information if an 

incident occurs involving unodorized 

LPG. AAR notes that, because markings 

may be obscured or damaged in a 

derailment or accident, adding a 

notation to shipping papers will help 

ensure that emergency responders will 

be informed if a shipment of unodorized 

propane is involved in an accident. 

We agree with commenters that a 

shipping paper entry would provide 

additional information for carriers and 

emergency responders about the nature 

of the material being transported. 

However, such a revision to the HMR 

would impose additional costs on 

shippers and transporters; moreover, 

this revision was not proposed in the 

NPRM. Therefore, we are not making 

this change in the final rule. Shippers 

may include on shipping papers the 

information that a shipment is not 

odorized if they so choose. 

Matheson Tri Gas asks for 

clarification as to whether the 

requirement for marking LPG as 

odorized pertains to LP–Gas mixtures. 

In addition, Matheson and Diversified 

CPC International, Inc. (Diversified) 

request that the marking ‘‘NOT 

ODORIZED’’ be permitted in place of or 

in addition to the proposed NON–

ODORIZED marking. Diversified states 

that many of its cargo tanks are already 

marked as NOT ODORIZED in 

accordance with NFPA 58 LPG standard 

which requires all ASME storage 

containers (National Fire Protection 

Association’s NFPA 58 Liquefied 

Petroleum Gas Code, Section 2.2.6.5) 

64464 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

that contain unodorized LPG products 

to be marked ‘‘NOT–ODORIZED’’. The 

marking NON–ODORIZED will apply to 

LPG and LP–Gas mixtures described as 

‘‘Liquefied Petroleum Gas’’ or 

‘‘Petroleum Gases, Liquefied’’ or Butane, 

Isobutane, Propane, Propylene 

(Propene) Butylene (Butenes) that, when 

mixed with other constituents, retain 

the LPG shipping name(s) and are not 

described using an ‘‘n.o.s.’’ description. 

Because the marking ‘‘NOT ODORIZED’’

is already required under the NFPA 58 

LPG Code for storage purposes, for 

purposes of transportation in commerce, 

either ‘‘NON–ODORIZED’’ or ‘‘NOT 

ODORIZED’’ is an acceptable marking to 

communicate that the LPG is being 

shipped unodorized.

The American Petroleum Institute 

(API) opposes the NON–ODORIZED 

marking provision on tank cars 

transporting LPG. API expresses 

concern with the logistics of tracking 

the tank cars and scheduling the 

stenciling, inspecting the cars to make 

sure they are properly stenciled, and the 

potential for creating errors and 

inconsistencies between the bills of 

lading, the markings, and the placards. 

API also states that remarking the cars 

may be dangerous to the personnel who 

are climbing up and down ladders to restencil the cars every year. One API 

member estimates that stenciling 

changes would occur approximately 

5,800 times per year at a cost of 

approximately $80 per car ($30.00 per 

car for stenciling + $47 per car to affix 

= $80) for a total of $464,000 annually 

to comply with the proposed 

requirement. API suggests that the 

NON–ODORIZED marking should not 

be applicable to tank cars. 

We do not agree with the API 

comment. We agree with petitioners and 

with GAO that, because transport 

workers and emergency response 

personnel rely on an odor to indicate 

the presence of LPG, emergency 

response and transport workers could 

make inappropriate decisions during an 

incident unless information concerning 

odorization is available, potentially 

jeopardizing their safety or the public 

safety. We note concerning the 

comments on stenciling that neither the 

NPRM nor this final rule specify the 

type of marking that must be used to 

comply with the requirement. Shippers 

may use non-permanent marks, such as 

pressure-sensitive vinyl or adhesivebacked labels, that would obviate the 

need to re-stencil railcars to indicate the 

presence of a non-odorized shipment. 

The annual cost of this marking, using 

pressure-sensitive vinyl labels that have 

a 5- to 7-year life expectancy, is 

minimal. 

To address the concerns expressed by 

API, in this final rule, we are adopting 

a provision to permit the NON–

ODORIZED marking to be used on rail 

tank cars that transport both unodorized 

and odorized LPG. The NON–

ODORIZED marking will alert 

emergency responders that the tank may 

contain unodorized LPG; in the event 

the LPG in the tank is, in fact, odorized, 

emergency responders will know to take 

appropriate actions even though the 

tank car indicates that the contents may 

not be odorized. Accordingly, we are 

amending §§ 172.203, 172.301, 172.326, 

172.328, and 172.330 to require the 

NON–ODORIZED or NOT ODORIZED 

marking on a vehicle or, unless 

excepted, a container containing LPG 

that does not contain an odorant. In this 

final rule, the compliance date for the 

new marking requirement is October 1, 

2006. 

B. Type B Organic Peroxide 

Identification Number Marking 

(§ 172.336) 

A Division 5.2 placard is required for 

(1) any quantity of an organic peroxide, 

Type B, liquid or solid, temperature 

controlled material, and (2) for other 

organic peroxides when 1,001 pounds 

or more are on a transport vehicle. In 

the NPRM, we proposed to require an 

identification number to be displayed 

on each bulk packaging, unit load 

device, freight container, transport 

vehicle, or rail car containing any 

quantity of an organic peroxide when 

the material transported is a 

temperature-controlled organic peroxide 

subject to placarding under Table 1 of 

§ 172.504(e). 

Of the four comments received on this 

issue, only one commenter supports the 

proposal. The American Society of 

Safety Engineers (ASSE) agrees that it 

would be beneficial to require display of 

the identification number on bulk 

packages, freight containers, vehicles 

and rail cars to indicate that the organic 

peroxide is temperature controlled. 

ASSE says that including an 

identification number will increase the 

likelihood that appropriate actions will 

be taken to ensure safety, even if 

shipping papers for the cargo are not 

readily available in an emergency 

situation. 

The commenters opposed to this 

provision believe that the current 

requirement to placard any amount of 

‘‘5.2, Organic peroxide, Type B, liquid 

or solid, temperature-controlled’’

material conveys the warning to 

emergency personnel that the material 

must be temperature controlled, and 

clearly identifies the organic peroxides 

requiring special response needs based 

on temperature controls. The 

Conference on Safe Transportation of 

Hazardous Articles, Inc. (COSTHA) 

suggests that an emergency responder 

responding to an incident involving a 

Class 5.2 placard should always assume 

that the cargo should be protected from 

a rise in temperature since virtually all 

organic peroxides may undergo 

exothermal release of oxygen or 

instability and many are flammable. 

COSTHA further states that such an 

identification number display will cause 

confusion, particularly in international 

commerce. COSTHA notes that under 

international codes the display of an 

identification number for a Class 5.2 

material is required only for a bulk 

packaging or a shipment of 4000 kg or 

more loaded at one location with no 

other hazardous materials in the 

container or transport unit. COSTHA 

asserts that seeing the identification 

number displayed as proposed might 

lead to an erroneous conclusion and 

improper response. The American 

Trucking Associations (ATA) opposes 

this provision because temperaturecontrolled organic peroxides represent a 

small percentage of the cargo 

transported by motor carriers. Drivers 

are thus not likely to see this material 

with any regularity. In ATA’s view, this 

lack of familiarity will make the 

proposed requirement difficult to 

comply with; moreover, according to 

ATA, motor carriers may choose not to 

accept these materials for 

transportation. ATA is further 

concerned that it will be difficult to 

train drivers to distinguish between 

organic peroxides that do not require 

the identification marking and those 

that do. 

We have reconsidered this proposal in 

light of the comments we received. We 

agree that the placard currently required 

for Type B, organic peroxide shipments 

and the required shipping paper entry 

that indicates that the material is 

temperature-controlled and provides the 

emergency temperature should be 

sufficient in most situations to alert 

emergency responders to the hazard 

associated with the material in the event 

of an incident that results in loss of 

temperature control. We also agree that 

the requirement as proposed could 

cause confusion for international 

shipments. We note, in addition, that 

there are other types of hazardous 

materials that require temperature 

controls during transportation; we may 

need to consider a more general marking 

requirement for all such materials than 

was proposed in the NPRM. Therefore, 

we are not adopting the proposal in this 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64465

final rule. However, we may address 

this issue in a future rulemaking. 

C. Fumigant Marking (§ 173.9) 

A rail car, freight container, truck 

body, or trailer in which the lading has 

been fumigated or treated with any 

material, or is undergoing fumigation, is 

a ‘‘package’’ containing a hazardous 

material, unless the transport vehicle or 

freight container has been sufficiently 

aerated so that it does not pose an 

unreasonable risk to health and safety. 

If the contents of a transport vehicle or 

freight container have been treated with 

any material or are undergoing 

fumigation, the transport vehicle and 

freight container must be marked in 

accordance with § 173.9(c). The 

requirements apply to fumigation with 

any material, including unlisted 

fumigants, and in all modes of 

transportation. This marking provides 

warning to shippers, carriers, law 

enforcement agencies, and, in 

particular, transport workers that they 

may be exposed to a fumigating agent 

when they open a transport unit. The 

NPRM proposed to revise the 

requirements in paragraph (e) of § 173.9 

to specify that the FUMIGANT marking 

must remain on the vehicle or container 

until the fumigated load is unloaded or 

has undergone sufficient aeration to 

remove the hazard posed by the 

fumigant. The proposed revision 

permits aeration or ventilation of the 

vehicle or container without unloading. 

Three comments were received to the 

NPRM regarding the fumigation 

proposals. All three commenters 

support the proposal. Two commenters 

suggest that, in order to clarify when a 

fumigated transport vehicle or freight 

container is no longer deemed to 

present a hazard to those entering the 

vehicle or container, we adopt language 

that reflects the text of the current UN 

Model Regulations and the IMDG Code. 

We agree; therefore, in this final rule, 

the word ‘‘or’’ replaces the word ‘‘and’’

in the current paragraph (e)(1), and 

paragraph (e)(2) is revised for 

consistency with the text of the current 

UN Model Regulations and the IMDG 

Code. This revision will allow removal 

of the FUMIGANT marking following 

aeration or ventilation of the vehicle or 

container sufficient to eliminate the 

fumigant hazard, and also makes the 

requirements consistent with 

international standards.

The National Pest Management 

Association (NPMA) expresses concern 

about application of the FUMIGANT 

marking requirement to ready-to-use 

liquid formulations or ‘‘foggers,’’ such 

as ant and roach repellants. NPMA said 

RSPA is encouraging fumigators to 

improperly mark packages, an action 

that may unnecessarily delay emergency 

workers’ response to an accident. This 

comment is beyond the scope of this 

rulemaking. 

V. Materials Poisonous by Inhalation 

(PIH) 

A. Revision of PIH Label and Placard 

and Transition Periods (§§ 172.332; 

172.416; 172.429; 172.540 and 172.555) 

In a final rule published 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 materials poisonous by 

inhalation (PIH) to enhance their 

identification when transported in 

commerce. The dark background for the 

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 PIH label 

and placard also improved hazard 

communication by creating an instantly 

recognizable difference between PIH 

materials and other poisons. 

However, as published in the Federal 

Register, the graphics shown in the 

January 8, 1997 final rule and 

amendments adopted in a July 22, 1997 

final rule were inaccurate. On the PIH 

label and placard, we inadvertently 

specified a smaller skull-and-crossbones 

symbol in the upper black diamond 

than currently shown on the POISON 

label and placard. To correct this 

oversight, we proposed in the NPRM to 

enlarge the upper black diamond above 

the horizontal center line and, 

proportionally, the skull-and-crossbones 

symbol at the top of the labels and 

placards to conform, pictorially, in size 

with the symbol on the POISON label 

and placard used for poisons other than 

those that are PIH materials. Increasing 

the size of the symbol will make the 

upper black diamond on the PIH 

placards and labels more visible from a 

distance and will enhance the ability of 

emergency responders and transport 

workers to identify the PIH materials. 

Because of the enlarged upper black 

diamond above the horizontal center 

line and, proportionally, the skull-andcrossbones symbol at the top of the PIH 

placards, identification number 

markings displayed on the new PIH 

placards may cause overlapping of the 

lower point of the upper black diamond 

and impinge on space used for 

identification number display on such 

placards. To allow space for the 

identification number, we proposed 

allowing the lower point of the upper 

black diamond to impinge on space 

used to display an identification 

number marking on a PIH placard. An 

extensive transition period was also 

proposed to allow those persons who 

had begun, prior to October 1, 1999 and 

October 1, 2001, respectively, to use and 

maintain a supply of the PIH labels and 

placards with smaller size symbols to 

continue to use them in transportation. 

We received approximately 10 

comments on these proposals. Most 

commenters supported the proposed 

changes, but questioned the timing of 

the proposals in light of security 

concerns and non-uniformity with the 

international standards. The following 

comment from PRAXAIR is typical:

While supportive of the need to 

communicate the special hazards posed by 

materials classified as Poison Inhalation 

Hazard materials, PRAXAIR questions the 

necessity for the proposed increases in the 

size of PIH labels. Since October 1, 2001, 

RSPA has required and Praxair complied 

with the requirements to use a PIH label and 

placard for both liquids (Division 6.1) and 

gases (Division 2.3) that are PIH materials. 

DOT has gone to considerable length to 

create unique labels and placards. The 

pictograms for PIH materials are unique and 

their size does not, in our judgment, need to 

be increased in order to improve their ability 

to communicate hazards. Furthermore, these 

labels and placards are unique to the 

transportation system in the USA and have 

not been adopted by the international 

transportation community. These labels and 

placards have become recognized by the 

emergency response community in the USA. 

PRAXAIR believes that the current labels and 

placards are distinctive and that an increase 

in the size of the upper quadrant of labels 

and placards is unnecessary because these 

labels are unique. The need to change a 

system for international shipment of PIH 

materials seems premature.

We agree. Therefore, we are not 

adopting the NPRM proposals 

concerning the PIH labels and placards 

in this final rule. 

We note concerning the transportation 

of PIH materials that RSPA and the 

Transportation Security Administration 

are examining the need for enhanced 

security requirements for the rail 

transportation of hazardous materials 

that pose a toxic inhalation hazard. In 

a notice published August 16, 2004 (69 

FR 50987), the two agencies are seeking 

comments on the feasibility of initiating 

specific security enhancements and the 

potential costs and benefits of doing so. 

Security measures being considered 

include improvements to security plans, 

modification of methods used to 

identify shipments and communicate 

hazards, enhanced requirements for 

temporary storage, strengthened tank car 

integrity, and implementation of 

tracking and communication systems. 

64466 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

B. Hydrogen Fluoride, Anhydrous, and 

Similar Materials (§§ 172.400 and 

172.504) 

In the HM–206 final rule (62 FR 1217; 

January 8, 1997), certain materials that 

meet the definition of a PIH material, 

such as hydrogen fluoride, anhydrous, 

were not specifically addressed in the 

provisions for labeling and placarding 

PIH materials in Division 6.1. To correct 

this oversight, in the NPRM we 

proposed to revise §§ 172.400 and 

172.504 to require an inhalation hazard 

label or placard for materials that meet 

the definition of a PIH material in 

§ 171.8. We received one comment 

supporting the action to correct this 

oversight. The proposal in the NPRM is 

adopted without change in this final 

rule. 

C. Placarding Requirement for Residues 

(When PIH Subsidiary) 

In accordance with § 173.29(c), a nonbulk packaging containing only a 

residue of a hazardous material covered 

by placarding Table 2 of § 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, 

remanufacture or reuse. However, the 

exception in § 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 § 172.505(a). Therefore, 

in the NPRM, we proposed to revise 

paragraph (c) of § 173.29 to clarify that 

the exception to placarding and 

shipping papers do not apply to a nonbulk packaging containing the residue of 

a material poisonous by inhalation. Two 

comments were received supporting this 

clarification. The proposal is adopted 

without change in this final rule. 

VI. Other Requirements for Labels and 

Placards 

A. Color Standards for Labels and 

Placards (§§ 171.7, 172.407 and 

172.519) 

The NPRM contained a proposal for 

use of Pantone Matching System 

(PMS) colors as an alternative to the 

specifications for colors in the Tables in 

Appendix A of part 172 of the HMR. 

The proposed alternative color 

standards for labels and placards 

conform generally to the same standards 

prescribed in the TDG Regulations, 

which are colors conforming to the 

Pantone Color Formula Guide 

published by Pantone Incorporated 

(Pantone). The colors that make up the 

PMS are derived from 14 base colors. 

Ink manufacturers license the 

formulation from Pantone and printers 

mix of the 14 ink colors make up the 

entire spectrum of PMS. This provision 

is primarily intended to voluntarily 

permit the use of certain Pantone

Color Formula Guide colors for 

identification number and other 

markings and hazard warning labels and 

placards as an alternative to the Munsell 

notations, by referencing certain 

Pantone Color Formula Guide 

numbers as a convenience to users, not 

as a requirement.

We received two comments, both in 

support of this provision. Monsanto 

Company (Monsanto) supports RSPA’s 

efforts since Pantone is the printing 

color standard. Monsanto recommends 

that a delta ‘‘E’’ value be added to color 

deviation from the Pantone standard 

color, and that most color definitions 

include an ‘‘error’’ tolerance value, 

especially when they refer to using color 

measuring instruments or a 

spectrophotometer because Pantone

books vary based upon age and 

environmental conditions. Further, 

Monsanto recommends that the DOT 

colors be defined within the ‘‘CyanMagneta-Yellow-Black (CMYK)’’ color 

space or tolerance set to include colors 

reproduced using the process colors. 

CMYK is a color model in which all 

colors are described as a mixture of 

these four process colors. CMYK is the 

standard color model used in offset 

printing for full-color documents, and 

because such printing uses inks of these 

four basic colors, it is often called fourcolor printing. 

In this final rule, the Pantone

Matching System is a voluntary 

alternative to the Munsell Notations, 

and the Pantone Formula Guide colors 

are specified and do not allow for 

deviations or tolerances (ranges of 

color). It is our understanding that the 

specified DOT colors do not render well 

when emulated using CMYK color 

space. A spectrophotometer or other 

instrumentation would be required to 

ensure a proper match with the DOT 

color standards. The use of CMYK 

colors for hazard warning labels and 

placards and other markings was not 

proposed in the NPRM, and is beyond 

the scope of this rulemaking. At this 

time, we have not determined whether 

or not CMYK colors would be an 

acceptable alternative to the use of the 

Munsell Notations. The commenter may 

wish to submit a petition for rulemaking 

requesting a change to the regulations in 

accordance with §§ 106.95 and 106.100. 

In this final rule, we are revising 

§§ 172.407 and 172.519, specifications 

for labels and placards, to provide an 

alternative means of achieving 

reasonable conformance to color 

standards for hazard warning labels and 

placards, and identification number and 

other markings. 

B. ASTM D4956–95 (Red and White) For 

Reflective Colors (§§ 171.7, 172.407 and 

172.519) 

In accordance with the provisions in 

§ 172.519(a)(3), reflective materials may 

be used on a placard if the prescribed 

colors, strengths, and durability are 

maintained. In the NPRM, we proposed 

to adopt an alternate color standard for 

labels and placards constructed of retro 

reflective materials. We focused on retro 

reflective red and white reflective colors 

that conform to Type V sheeting in 

ASTM D 4956, Standard Specification 

for Retroretroflective Sheeting for 

Traffic Control. We did not propose 

other colors in ASTM D 4956 because 

we believed they poorly match the 

current and proposed color standards 

for labels and placards. This standard is 

referenced in the conspicuity systems 

prescribed under the Motor Vehicle 

Safety Standard No. 108 Lamps, 

Reflective Devices, and Associated 

Equipment specified in 49 CFR 571.108. 

We received two comments on our 

proposal. 3–M Traffic Control Division 

(3–M) supports the proposal, stating that 

the use of retro reflective materials can 

greatly increase the visibility of placards 

when viewed by a first responder in the 

dark, and Type V materials are most 

often used as white and red conspicuity 

treatments to improve the visibility of 

trucks at night. Further, the color of 

retro reflective signing governed by the 

Federal Highway Administration is 

based on the same Munsell System and 

Color Tolerance Charts currently 

referenced by RSPA. However, 3–M 

notes that Type V materials are intended 

only for nighttime use. Because placards 

are viewed under both daytime and 

nighttime conditions, 3–M suggests 

language that would allow placards to 

be made from durable materials used for 

rigid highway signs. 3–M also 

recommends that placards made from 

Type VII, VIII, or IX sheeting would be 

comparable in nighttime brightness to 

Type V and provide daytime luminance 

sufficient for signing purposes in the 

daytime. 

Based in part on the 3–M comment 

and on our own evaluation of the 

standards for retro reflective materials, 

we have decided not to adopt the NPRM 

proposal in this final rule. We will 

continue to evaluate retro reflective 

materials to ascertain their suitability 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64467

for use on placards and may address 

this issue in a future rulemaking. 

C. Organic Peroxide, Subsidiary 

FLAMMABLE LIQUID Label (§ 172.402) 

Under the HMR, the additional 

labeling requirements in § 172.402 

require each package containing a 

hazardous material to be labeled with 

both primary and subsidiary hazard 

warning labels. In accordance with 

§ 172.402(a)(2), a package containing a 

Division 5.2 (organic peroxide) material 

that also meets the definition of a 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 § 172.402(a)(2)). Paragraph 

5.2.2.1.10 of the UN Model Regulations 

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. 

In the NPRM, we proposed to grant an 

exception from subsidiary labeling for a 

Division 5.2 (organic peroxide) material 

that exhibits a Class 3 (flammable 

liquid) subsidiary hazard, for 

consistency with the UN Model 

Regulations.

We received two comments in 

support of the proposal. However, we 

are not adopting the proposed exception 

at this time. The UN is currently 

considering introduction of a new 

Division 5.2 label to better differentiate 

between the Division 5.1 and 5.2 labels. 

A proposal to this effect has been 

submitted to the UN Committee of 

Experts. We will address labeling issues 

related to Division 5.2 materials after 

the UN has finalized action on modified 

labeling requirements for organic 

peroxides, in order to maintain 

consistency and harmonization with the 

UN. 

D. Cylinder Markings in Accordance 

With CGA Pamphlet C–7 (§ 172.400a) 

Currently, the HMR allow the use of 

‘‘neckring’’ markings, instead of labels, 

on cylinders containing 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 

§ 172.400a(a)(1) are met. In the NPRM, 

for consistency with provisions in the 

UN Model Regulations and Canadian 

and European regulations, we proposed 

revising the requirement in 

§ 172.400a(a)(1) to broaden this labeling 

exception to apply to all modes of 

transportation (air, water, rail, or 

highway), and to expand the exception 

to include gases in Division 2.3. 

Specifically, this change will permit the 

use of 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,’’ to satisfy the 

labeling of cylinders containing gases 

shipped in accordance with the 

exception in § 172.400a. 

We received five comments on this 

issue. All are generally supportive of the 

proposed revision, except that two of 

the commenters oppose expanding the 

exception to include Division 2.3 

(poison gas) gases. These commenters 

state that any material with either a 

primary or subsidiary hazard of Division 

2.3 should be required to bear the fullsized toxic or poison gas label, and note 

that neckring markings are often 

abraded, torn, and faded from frequent 

use and handling of the cylinders to 

which they are attached. We do not 

agree. Cylinder neckring markings are 

less subject to abrasions than cylinder 

body labels and are less likely to loosen 

and fall off. Further, the smaller 

neckring markings affixed to the 

shoulder of cylinders are more visible 

when cylinders are grouped together 

than when the information is on a 

hazard warning label affixed to the 

cylinder wall. Experience shows that 

this alternative marking, currently 

authorized for cylinders carried by 

private and contract carriers, clearly 

communicates the degree of hazard 

associated with Class 2 gases offered for 

transportation in commerce. The 

neckring marking will also 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 

neckring marking and hazard warning 

label. In addition, the proper shipping 

name and identification number of the 

hazardous material are marked adjacent 

to the smaller neckring marking and 

hazard warning label, which makes 

identification of the products easier. 

We believe such markings will be 

comparably effective in communicating 

the hazard of the material being 

shipped. Safety will 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 Model Regulations 

specifies that cylinders for Class 2 may, 

on account of their shape, orientation 

and securing mechanisms for transport, 

bear labels representative of those 

specified in this section, which have 

been reduced in size, according to ISO 

7225 ‘‘Gas cylinders—Precautionary 

labels,’’ for display on the noncylindrical part (shoulder) of such 

cylinders. Thus, this change will 

enhance international harmonization 

with the Canadian and European 

standards, which authorize labels that 

have been reduced in size (e.g., neckring 

labels) for display on the noncylindrical part of the cylinders. 

Accordingly, in this final rule, 

§ 172.400a(a)(1) is revised to allow 

labels authorized in CGA Pamphlet C–

7, Appendix A, for Division 2.1, 2.2, or 

2.3 gases. We are rewording the 

provisions to clarify that a Dewar flask 

is authorized only for atmospheric gases 

under the conditions prescribed in 

§ 173.320. Because we are expanding 

use of the marking on cylinders and 

Dewars for poisonous materials and in 

all modes of transportation and 

cylinders of Division 2.3 gases, we are 

removing paragraphs (a)(1)(i) and (ii). 

E. Placarding Exception for Class 9 

Materials (Domestic) (§ 172.504) 

In the NPRM, we proposed to clarify 

that the Class 9 placarding exception in 

§ 172.504(f)(9) applies to international 

shipments of Class 9 materials while 

moving in the United States. 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 that is domestic only. 

We received three comments on this 

issue: two opposed, and one in support 

of the clarification. Air Products, Inc. 

supports the proposal because the 

clarification will minimize 

misunderstanding. The Conference on 

Safe Transportation of Hazardous 

Articles, Inc. (COSTHA) and the 

International Vessel Operators 

Hazardous Materials Association, Inc. 

(VOHMA) oppose the clarification. 

COSTHA states that extending the 

exception to international shipments in 

cargo transport units will result in 

confusion and non-compliance. 

COSTHA is concerned that the 

amendment to § 172.504(f)(9) would not 

prevent an intermodal carrier from 

removing the CLASS 9 placards and 

thus place the container in noncompliance when it arrives at the port. 

COSTHA suggests that requiring the 

placard to be displayed throughout 

transportation in accordance with the 

IMDG Code will reinforce a shipper’s 

responsibility for providing and affixing 

placards at the beginning of 

transportation and for intermodal 

carriers to maintain the placards until 

the shipment reaches the port. VOHMA 

states that in order to avoid 

inconsistency between §§ 171.12, 

64468 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

172.504, and 172.506, the language at 

§ 172.504(f)(9) should not be amended 

and that the current exception be 

limited to domestic shipments only. 

We do not agree. This action is being 

taken to clarify and incorporate into the 

HMR our longstanding determinations 

concerning the intent and use of the 

CLASS 9 placard when the shipment is 

passing through the United States and 

destined for a foreign country, such as 

Canada. For these purposes, we have 

previously defined ‘‘domestic 

transportation’’ to include not only 

transportation exclusively within the 

United States, but also that domestic 

portion of international transportation 

(such as Class 9 shipments to or from 

Canada by highway and rail), that 

occurs between places within the 

United States. We do not agree that 

application of the Class 9 placarding 

exception to shipments passing through 

the United States will cause confusion 

and non-compliance nor do we agree 

that the exception will cause intermodal 

carriers to remove Class 9 placards on 

international shipments prior to the 

shipment’s arrival at the port. The 

exception permits the Class 9 placard to 

be displayed throughout transportation 

in accordance with the IMDG Code 

requirements. The proposal in the 

NPRM is adopted without change in this 

final rule. 

F. Residues of Class 9 (Miscellaneous) 

Hazardous Substances, When Less Than 

RQ Remains (§§ 172.514 and 173.29) 

A Class 9 hazardous substance is 

subject to the HMR only because of the 

presence of a reportable quantity (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 the NPRM, we 

proposed to revise § 172.514(b) to allow 

markings and placards, if any, to remain 

on a packaging, such as 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. 

We received three comments on this 

issue, all supporting the revision. 

Therefore, in this final rule, we are 

clarifying that a packaging, such as 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. Accordingly, 

§ 172.514(b) is revised and § 173.29(h) is 

added 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.

G. Footnote to Table 1 (Placards)—

Editorial Correction (§ 172.504(e)) 

In this final rule, an editorial revision 

is made in § 172.504(e), Table 1, to 

correct citations in Footnote 1, 

pertaining to placarding for certain 

shipments of radioactive materials. The 

footnote is 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 § 173.427(b)(4) and (5) 

or (c) of this subchapter.’’ (See Docket 

HM–230, Final Rule; 69 FR 3676; 

January 26, 2004.) 

VII. Training and Emergency Response 

Information 

A. Emergency Response Telephone 

Number Requirements (§ 172.604) 

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. In the NPRM, we 

proposed to clarify the emergency 

response telephone number 

requirements to specify that call-back 

systems (e.g., beepers, answering 

machines, etc.) are not acceptable under 

the HMR. 

We received five comments, four in 

support of the clarification in § 172.604, 

and one opposed. Typical of those 

supporting the proposal is the American 

Chemistry Council (ACC):

ACC has long understood DOT’s intent that 

the number shown on the shipping papers 

should connect the caller directly to an 

individual with immediate access to 

information regarding the specific product(s) 

covered by the shipping papers on which the 

emergency number appears, or immediate 

access to a person who possesses such 

knowledge and information. First responders 

and those in the transport industry need 

accurate and immediate information in order 

to properly mitigate an incident while also 

protecting those responding to the incident. 

For this reason, ACC also agrees with DOT 

that direct landline telephone provides the 

most reliable destination connection. 

Further, it is also understood that some 

first responders may or may not possess 

extensive hazardous materials incident 

emergency response training or experience 

and may need guidance in identifying what 

information is needed to take action. For that 

reason, ACC believes the person answering 

the emergency telephone should be properly 

trained and/or have immediate access to 

trained and hazardous materials qualified 

individuals that can assist the caller in 

obtaining the needed information.

The National Propane Gas Association 

(NPGA) opposes the clarification. NPGA 

says that retail marketers of propane 

often utilize devices such as answering 

services or beepers, and that the added 

provision would essentially require 

propane marketer employees to be 

considered first responders in order to 

comply with the immediate access

requirements. Further, NPGA asserts 

that it believes that the proposal stated 

in HM–206B does not increase the level 

of safety in responding to a propane 

transportation incident, and could place 

an undue burden on propane marketers, 

if adopted as stated. NPGA requests that 

the added statement be withdrawn from 

consideration. 

We disagree. The emergency response 

telephone number ensures that 

appropriate response and mitigation 

information is available to emergency 

response personnel in the event of an 

incident, without unnecessary or undue 

delay. The number must be of a person 

who has comprehensive emergency 

response and accident mitigation 

information or has immediate access to 

a person who possesses such 

knowledge. 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. This is not practical since a 

responder must make quick mitigation 

decisions at the scene of an incident 

involving hazardous materials, 

including propane. Moreover, in a 

number of letters of clarification issued 

since adoption of the emergency 

telephone number requirement, we have 

stated that ‘‘call-back’’ systems do not 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64469

meet the requirement for ‘‘immediate 

access’’ specified in the regulation. 

Therefore, in this final rule, we are 

revising § 172.604 to indicate that 

beeper numbers and call-back systems 

do not conform to the requirements in 

§ 172.604 and are not acceptable under 

the HMR. 

B. Clarification of the Emergency 

Response Information and Training 

Requirements for Combustible Liquids 

(§ 173.150) 

Under the HMR, 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 § 173.150(f)(3). 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 § 173.150(f)(3). It was 

never intended to exempt such 

shipments from these requirements. To 

correct this oversight, in the NPRM, we 

proposed to revise § 173.150(f)(3) to 

clarify that the emergency response 

information and training requirements 

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. No comments were received 

on this issue; therefore, the proposal is 

adopted without change in this final 

rule. 

VIII. Security Plans Applicable to 

Select Agents 

The NPRM proposed to add a new 

paragraph (p) to § 172.203 that would 

require each person who offers for 

transportation an infectious substance 

that is regulated as a select agent by the 

Centers for Disease Control and 

Prevention of the Department of Health 

and Human Services to include the 

words ‘‘select agent’’ in association with 

the basic shipping description on the 

shipping paper that accompanies the 

shipment. The proposal was intended to 

enable carriers to identify select agent 

shipments that are subject to the 

security plan requirements in subpart I 

of part 172 of the HMR. 

Of the three comments received on 

this issue, the American Trucking 

Associations (ATA) and the American 

Society of Safety Engineers (ASSE) 

support the proposals. In ATA’s words:

Following publication of RSPA’s final rule 

requiring motor carriers that transport certain 

‘‘select agents’’ to develop security plans, 

ATA raised the issue that motor carriers do 

not have the ability to determine whether a 

particular package contains a select agent 

unless that fact is communicated by the 

shipper. As such, we applaud RSPA for 

promptly addressing the issue and proposing 

to require each person who offers a select 

agent for transportation to include the words 

‘‘Select Agent’’ in association with the basic 

shipping description on the shipping paper 

that accompanies the shipment.

FEDEX opposes this provision 

suggesting that identifying shipments as 

select agents on shipping papers could 

create a security risk by drawing 

attention to the shipment. We agree. 

Also, there are other ways for this 

information to be communicated, such 

as by contractual arrangement or prior 

notification by phone call. The shipper’s 

security plan must address en route 

security (see § 172.802(a)(3) of the 

HMR). If the shipper is relying on its 

carrier to handle en route security for 

the shipment, then the shipper must 

communicate to the carrier that the 

shipment is subject to security plan 

requirements. 

The proposal in the NPRM is not 

adopted in this final rule. We continue 

to believe, however, that a shipper 

should communicate that a package 

contains a select agent to the carrier in 

order for the carrier to apply security 

plan measures to the shipment. We 

encourage shippers to provide this 

information to carriers. If a carrier is not 

sure whether a package contains a select 

agent, the carrier should request this 

information from the shipper. Although 

we are not adopting a new notification 

or paperwork requirement in this final 

rule, we may address this issue in a 

future rulemaking. 

IX. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This final rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866 and, therefore, 

was not reviewed by the Office of 

Management and Budget. The regulated 

industry may incur minimal costs to 

comply with the provision of this final 

rule, most notably the new marking 

requirements for non-odorized 

shipments of LPG. We note, however, 

that many shippers already mark LPG 

packages and containers ‘‘NOT 

ODORIZED’’ to conform with the NFPA 

Standard 58 for LPG and, further, that 

the new marking requirement may be 

met using an inexpensive pressuresensitive vinyl or adhesive-backed 

marking.

The small costs that may be incurred, 

however, are more than offset by the 

benefits that will accrue because of the 

provisions in this final rule that provide 

the industry with increased flexibility in 

meeting hazard communication 

requirements. For example, this final 

rule expands the current exception for 

neckring marking of cylinders 

transported in all modes, permits 

marking and placards to remain on 

packagings containing a hazardous 

substance below its RQ, and provides 

increased flexibility for use of the 

FUMIGANT marking. In addition, the 

final rule will enhance the safe transport 

of hazardous materials by clarifying the 

requirements of the emergency response 

telephone number on shipping papers 

and the emergency response and 

training requirements for shipments of 

combustible liquids in bulk packagings. 

The compliance costs associated with 

requirements in this final rule are 

minimal. Moreover, this final rule 

should reduce compliance costs for 

most of the regulated industry by 

providing for increased flexibility and 

new exceptions from current regulatory 

requirements. 

B. Executive Order 13132 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This rule would 

preempt State, local, and Indian tribe 

requirements but does not contain 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 final rule addresses subject items 

1, 2, and 3 above and preempts State, 

64470 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

local, and Indian tribe requirements not 

meeting the ‘‘substantively the same’’

standard. This final 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 

§ 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. 

Therefore, 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 final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not 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, 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 a rule is not expected to 

have a significant economic impact on 

a substantial number of small entities. 

The changes in this final rule will 

impose only minimal new costs of 

compliance on the regulated industry, 

and may reduce costs of compliance for 

several provisions, such as not requiring 

removal of markings and placards on 

packagings (e.g., returning rail cars) 

containing a hazardous substance below 

its reportable quantity (RQ). I hereby 

certify that while the changes in this 

final rule apply to a substantial number 

of small entities, there will not be a 

significant economic impact on those 

small entities. 

Need for the final rule. We are making 

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 final 

rule, we are amending the HMR to:

—Clarify that beeper numbers and callback 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 

—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, in this final rule, we are 

making 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 changes made in this 

final rule. 

Reporting and record keeping 

requirements. This final rule does not 

contain new reporting or record keeping 

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 final rule 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 final rule. For 

example, to minimize the burden 

associated with the new ODORANT 

marking requirement, we are permitting 

rail cars in mixed service to be 

permanently marked and are providing 

an extended compliance period. Other 

changes provide clarification of certain 

provisions to eliminate confusion and 

enhance compliance. In addition, 

several exceptions from current 

requirements to decrease compliance 

burdens are included in this final rule. 

Conclusion. We conclude that, while 

this final rule applies to a substantial 

number of small entities, there will not 

be a significant economic impact on 

those small entities. The compliance 

costs associated with requirements in 

this final rule are minimal. Moreover, 

this final rule 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 final 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 crossreference this action with the Unified 

Agenda. 

G. Unfunded Mandates Reform Act 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It does not result in costs of $100 

million or more to either State, local, or 

tribal governments, in the aggregate, or 

to the private sector, and is the least 

burdensome alternative that achieves 

the objectives of the rule. 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64471

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 improvements 

to the hazard communication system in 

this final rule will 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 final rule.

List of Subjects 

49 CFR Part 171 

Exports, Hazardous materials 

transportation, Hazardous waste, 

Imports, Reporting and recordkeeping 

requirements. 

49 CFR Part 172 

Hazardous materials transportation, 

Hazardous waste, Labels, Markings, 

Packaging and containers, Reporting 

and record keeping requirements. 

49 CFR Part 173 

Shippers—General requirements for 

shipments and packagings.

■ In consideration of the foregoing, 49 

CFR parts 171, 172 and 173 are amended 

as follows:

PART 171—GENERAL INFORMATION, 

REGULATIONS, AND DEFINITIONS

■ 1. The authority citation for part 171 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127, 44701; 49 

1.45 and CFR 1.53; Pub L. 101–410 section 

4 (28 U.S.C. 2461); Pub. L. 104–134, section 

31001.

■ 2. In § 171.7, in paragraph (b), one new 

entry is added in alphabetical order to 

read as follows:

§ 171.7 Reference material.

* * * * *

(b) List of informational materials not 

requiring incorporation by reference.

***

Source and name of material 49 CFR reference 

*******

Pantone Incorporated, 590 Commerce Boulevard, Carlstadt, New Jersey 07072–3098. 

Pantone Formula guide coated/uncoated, Second Edition 2004 ........................................................................... 172.407, 172.519 

* * * * * * * 

PART 172—HAZARDOUS MATERIALS 

TABLE, SPECIAL PROVISIONS, 

HAZARDOUS MATERIALS 

COMMUNICATIONS, EMERGENCY 

RESPONSE INFORMATION AND 

TRAINING REQUIREMENTS

■ 3. The authority citation for part 172 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR 

1.53.

■ 4. In § 172.301, paragraph (f) is added 

to read as follows:

§ 172.301 General marking requirements 

for non-bulk packagings.

* * * * *

(f) NON–ODORIZED marking on 

cylinders containing LPG. After 

September 30, 2006, 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 or NOT 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.

■ 5. In § 172.326, paragraph (d) is added 

to read as follows:

§ 172.326 Portable tanks.

* * * * *

(d) NON–ODORIZED marking on 

portable tanks containing LPG. After 

September 30, 2006, no person may 

offer for transportation or transport a 

portable tank containing liquefied 

petroleum gas (LPG) that is unodorized 

as authorized in § 173.315(b)(1) unless it 

is legibly marked NON–ODORIZED or 

NOT ODORIZED on two opposing sides 

near the marked proper shipping name 

required by paragraph (a) of this section, 

or near the placards.

■ 6. In § 172.328, paragraph (e) is added 

to read as follows:

§ 172.328 Cargo tanks.

* * * * *

(e) NON–ODORIZED marking on 

cargo tanks containing LPG. After 

September 30, 2006, no person may 

offer for transportation or transport a 

cargo tank containing liquefied 

petroleum gas (LPG) that is unodorized 

as authorized in § 173.315(b)(1) unless it 

is legibly marked NON–ODORIZED or 

NOT ODORIZED on two opposing sides 

near the marked proper shipping name 

as specified in paragraph (b)(1) of this 

section, or near the placards.

■ 7. In § 172.330, paragraph (c) is added 

to read as follows:

§ 172.330 Tank cars and multi-unit tank car 

tanks.

* * * * *

(c) After September 30, 2006, 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 or 

NOT ODORIZED on two opposing sides 

near the marked proper shipping name 

required by paragraphs (a)(1) and (a)(2) 

of this section, or near the placards. The 

NON–ODORIZED or NOT ODORIZED 

marking may appear on a tank car or 

multi-unit tank car tank used for both 

unodorized and odorized LPG.

■ 8. In § 172.400, in the table in 

paragraph (b), the entries for ‘‘6.1’’ are 

revised to read as follows:

§ 172.400 General labeling requirements.

* * * * *

(b) * * *

64472 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

Hazard class or division Label name Label design section reference 

*******

6.1 (material poisonous by inhalation (see § 171.8 of this 

subchapter)).

POISON INHALATION HAZARD ....................................... 172.429 

6.1 (other than material poisonous by inhalation) ............ POISON ............................................................................. 172.430 

* * * * * * * 

■ 9. In § 172.400a, paragraph (a)(1) is 

revised to read as follows:

§ 172.400a Exceptions from labeling. 

(a) * * * 

(1) A Dewar flask meeting the 

requirements in § 173.320 of this 

subchapter or a cylinder containing a 

Division 2.1, 2.2, or 2.3 material that 

is—

(i) Not overpacked; and 

(ii) Durably and legibly marked in 

accordance with CGA Pamphlet C–7, 

Appendix A (IBR; see § 171.7 of this 

subchapter).

* * * * *

■ 10. In § 172.407, paragraph (d)(5) is 

revised and paragraphs (d)(6) and (d)(7) 

are added to read as follows:

§ 172.407 Label specifications.

* * * * *

(d) * * * 

(5) The following color standards in 

the PANTONE formula guide coated/

uncoated (see § 171.7(b) of this 

subchapter) may be used to achieve the 

required colors on markings and hazard 

warning labels and placards:

(i) For Red—Use PANTONE 186 U 

(ii) For Orange—Use PANTONE 151 

U 

(iii) For Yellow—Use PANTONE 109 

U 

(iv) For Green—Use PANTONE 335 

U 

(v) For Blue—Use PANTONE 285 U 

(vi) For Purple—Use PANTONE 259 

U

(6) Where specific colors from the 

PANTONE MATCHING SYSTEM 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 formula guide 

coated/uncoated for colors prescribed in 

paragraph (d)(5) of this section. 

PANTONE is the property of Pantone, 

Inc. 

(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.

■ 11. In § 172.504, in Table 1, the entry 

for ‘‘6.1’’ and the footnote are revised; in 

Table 2, the entry for ‘‘6.1’’ is revised; 

and paragraph (f)(9) is revised, to read as 

follows:

§ 172.504 General placarding 

requirements.

* * * * *

(e) * * *

TABLE 1 

Category of material (hazard class of division number and 

additional description, as appropriate) Placard name Placard design section reference 

*******

6.1 (material poisonous by inhalation (see § 171.8 of this 

subchapter)).

POISON INHALATION HAZARD ....................................... 172.555 

* * * * * * * 

1RADIOACTIVE placard also required for 

exclusive use shipments of low specific 

activity material and surface contaminated 

objects transported in accordance with 

§ 173.427(b)(4) and (5) or (c) of this 

subchapter.

TABLE 2 

Category of material (hazard class of division number and 

additional description, as appropriate) Placard name Placard design section reference 

* * * * * * * 

6.1 (other than material poisonous by inhalation) ............ POISON ............................................................................. 172.554 

* * * * * * * 

(f) * * * 

(9) For Class 9, a CLASS 9 placard is 

not required for domestic 

transportation, including that portion of 

international transportation, defined in 

§ 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 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64473

configuration as required by subpart D 

of this part.

* * * * *

■ 12. In §172.514, paragraph (b) is 

revised to read as follows:

§ 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 § 173.29(b)(1) 

of this subchapter.

* * * * *

■ 13. In § 172.519, paragraph (d)(3) is 

revised to read as follows:

§ 172.519 General specification for 

placards.

* * * * *

(d) * * * 

(3) Upon visual examination, a color 

on a placard must fall within the color 

tolerances displayed on the appropriate 

Hazardous Materials Label and Placard 

Color Tolerance Chart (see 

§ 172.407(d)(4)). As an alternative, the 

PANTONE formula guide coated/

uncoated as specified for colors in 

§ 172.407(d)(5) may be used.

* * * * *

■ 14. In § 172.604, paragraph (a)(2) is 

revised to read as follows:

§ 172.604 Emergency response telephone 

number. 

(a) * * * 

(2) The telephone 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

■ 15. The authority citation for part 173 

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 44701; 49 

CFR 1.45, 1.53.

■ 16. In § 173.9, paragraph (e)(1) and (2) 

are revised to read as follows:

§ 173.9 Transport vehicles or freight 

containers containing lading which has 

been fumigated.

* * * * *

(e) * * * 

(1) The fumigated lading is unloaded; 

or 

(2) A fumigated closed transport 

vehicle or freight container has been 

completely ventilated either by opening 

the doors of the transport vehicle or 

freight container or by mechanical 

ventilation to ensure no harmful 

concentration of gas remains after 

fumigation has been completed.

* * * * *

■ 17. In § 173.29, paragraph (c) 

introductory text is revised and 

paragraph (h) is added to read as follows:

§ 173.29 Empty packagings.

* * * * *

(c) A non-bulk packaging containing 

only the residue of a hazardous material 

covered by Table 2 of § 172.504 of this 

subchapter that is not a material 

poisonous by inhalation or its residue 

shipped under the subsidiary placarding 

provisions of § 172.505—

* * * * *

(h) A package that contains a residue 

of a hazardous substance, Class 9, listed 

in the § 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, if applicable, placarded in the same 

manner as when it contained a greater 

quantity of the material even though it 

no longer meets the definition in § 171.8 

of this subchapter for a hazardous 

substance.

■ 18. In § 173.150, the section heading is 

revised, and in paragraph (f)(3), 

paragraphs (vii) and (viii) are revised and 

paragraph (x) is added to read as follows:

§ 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 § 173.203; 

(viii) The requirements of §§ 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; 

(x) Emergency response information 

requirements of subpart G of part 172.

* * * * *

Issued in Washington, DC, on October 26, 

2004, under authority delegated in 49 CFR 

part 1. 

Elaine E. Joost, 

Acting Deputy Administrator, Research and 

Special Programs Administration.

[FR Doc. 04–24377 Filed 11–3–04; 8:45 am] 

BILLING CODE 4910–60–P