[Federal Register Volume 69, Number 213 (Thursday, November 4, 2004)]
[Rules and Regulations]
[Pages 64462-64473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24377]



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Part V





Department of Transportation





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Research and Special Programs Administration



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49 CFR Parts 171, 172, and 173



Hazardous Materials: Miscellaneous Changes to the Hazard Communication 
Requirements; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 172, and 173

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


Hazardous Materials: Miscellaneous Changes to the Hazard 
Communication Requirements

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

ACTION: Final rule.

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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:
    <bullet> Permitting the use of Pantone[reg] Formula, an industry 
guide for colors, for hazard warning labels and placards.
    <bullet> 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.

[[Page 64463]]

    <bullet> Requiring a NON-ODORIZED marking on certain packages 
containing unodorized liquefied petroleum gas.
    <bullet> 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.
    <bullet> Clarifying that beeper or other types of call-back systems 
do not meet the requirements in Sec.  172.604 for emergency response 
telephone numbers.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 (Sec.  
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 Sec.  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 non-odorized 
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)

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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 re-stencil 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 adhesive-backed 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 Sec. Sec.  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 (Sec.  
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 Sec.  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 temperature-
controlled 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

[[Page 64465]]

final rule. However, we may address this issue in a future rulemaking.

C. Fumigant Marking (Sec.  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 Sec.  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 
Sec.  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 (Sec. Sec.  
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-and-crossbones 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.

[[Page 64466]]

B. Hydrogen Fluoride, Anhydrous, and Similar Materials (Sec. Sec.  
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 Sec. Sec.  172.400 
and 172.504 to require an inhalation hazard label or placard for 
materials that meet the definition of a PIH material in Sec.  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 Sec.  173.29(c), a non-bulk packaging containing 
only a residue of a hazardous material covered by placarding Table 2 of 
Sec.  172.504 of the HMR need not be included in determining the 
applicability of the placarding requirements in subpart F of part 172 
and is not subject to shipping paper requirements when collected and 
transported by a contract or private carrier for reconditioning, 
remanufacture or reuse. However, the exception in Sec.  173.29(c) was 
not intended to apply to the residue of a material shipped in non-bulk 
packagings that has a subsidiary PIH hazard that would require the 
transport vehicle to be placarded in accordance with the subsidiary 
placarding requirements in Sec.  172.505(a). Therefore, in the NPRM, we 
proposed to revise paragraph (c) of Sec.  173.29 to clarify that the 
exception to placarding and shipping papers do not apply to a non-bulk 
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 (Sec. Sec.  171.7, 172.407 
and 172.519)

    The NPRM contained a proposal for use of Pantone[reg] 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[reg] Color Formula Guide published by 
Pantone Incorporated (Pantone[reg]). The colors that make up the PMS 
are derived from 14 base colors. Ink manufacturers license the 
formulation from Pantone[reg] 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[reg] 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[reg] 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[reg] 
is the printing color standard. Monsanto recommends that a delta ``E'' 
value be added to color deviation from the Pantone[reg] 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[reg] books vary based upon age and 
environmental conditions. Further, Monsanto recommends that the DOT 
colors be defined within the ``Cyan-Magneta-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 four-
color printing.
    In this final rule, the Pantone[reg] Matching System is a voluntary 
alternative to the Munsell Notations, and the Pantone[reg] 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 Sec. Sec.  106.95 and 
106.100. In this final rule, we are revising Sec. Sec.  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 (Sec. Sec.  
171.7, 172.407 and 172.519)

    In accordance with the provisions in Sec.  172.519(a)(3), 
reflective materials may be used on a placard if the prescribed colors, 
strengths, and durability are maintained. 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

[[Page 64467]]

for use on placards and may address this issue in a future rulemaking.

C. Organic Peroxide, Subsidiary FLAMMABLE LIQUID Label (Sec.  172.402)

    Under the HMR, the additional labeling requirements in Sec.  
172.402 require each package containing a hazardous material to be 
labeled with both primary and subsidiary hazard warning labels. In 
accordance with Sec.  172.402(a)(2), a package containing a Division 
5.2 (organic peroxide) material that also meets the definition of 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 Sec.  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 (Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 
full-sized 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 non-cylindrical 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 non-cylindrical part of the cylinders.
    Accordingly, in this final rule, Sec.  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 Sec.  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) (Sec.  
172.504)

    In the NPRM, we proposed to clarify that the Class 9 placarding 
exception in Sec.  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 Sec.  172.504(f)(9) would not prevent an intermodal 
carrier from removing the CLASS 9 placards and thus place the container 
in non-compliance 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 Sec. Sec.  171.12,

[[Page 64468]]

172.504, and 172.506, the language at Sec.  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 (Sec. Sec.  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 Sec.  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, Sec.  172.514(b) is revised 
and Sec.  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 (Sec.  
172.504(e))

    In this final rule, an editorial revision is made in Sec.  
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 Sec.  
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 (Sec.  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 
Sec.  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

[[Page 64469]]

meet the requirement for ``immediate access'' specified in the 
regulation. Therefore, in this final rule, we are revising Sec.  
172.604 to indicate that beeper numbers and call-back systems do not 
conform to the requirements in Sec.  172.604 and are not acceptable 
under the HMR.

B. Clarification of the Emergency Response Information and Training 
Requirements for Combustible Liquids (Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 pressure-sensitive 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,

[[Page 64470]]

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 Sec.  
5125(b)(2) that, if DOT issues a regulation concerning any of the 
subjects, DOT must determine and publish in the Federal Register the 
effective date of Federal preemption. The effective date may not be 
earlier than the 90th day following the date of issuance of a final 
rule and not later than two years after the date of issuance. 
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 call-back systems that require an 
emergency responder to wait for a return telephone call do not conform 
to the requirements for an emergency response telephone number on 
shipping papers
--Revise certain package marking requirements to more accurately convey 
information about the material being transported to emergency 
responders, transport workers, and the general public
--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 cross-
reference this action with the Unified Agenda.

G. Unfunded Mandates Reform Act

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

[[Page 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.

0
In consideration of the foregoing, 49 CFR parts 171, 172 and 173 are 
amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
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.


0
2. In Sec.  171.7, in paragraph (b), one new entry is added in 
alphabetical order to read as follows:


Sec.  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[reg] Formula guide coated/                      172.407, 172.519
 uncoated, Second Edition 2004............
 
                              * * * * * * *
------------------------------------------------------------------------

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

0
3. The authority citation for part 172 continues to read as follows:

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

0
4. In Sec.  172.301, paragraph (f) is added to read as follows:


Sec.  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.

0
5. In Sec.  172.326, paragraph (d) is added to read as follows:


Sec.  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 Sec.  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.

0
6. In Sec.  172.328, paragraph (e) is added to read as follows:


Sec.  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 Sec.  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.

0
7. In Sec.  172.330, paragraph (c) is added to read as follows:


Sec.  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.

0
8. In Sec.  172.400, in the table in paragraph (b), the entries for 
``6.1'' are revised to read as follows:


Sec.  172.400  General labeling requirements.

* * * * *
    (b) * * *

[[Page 64472]]



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


0
9. In Sec.  172.400a, paragraph (a)(1) is revised to read as follows:


Sec.  172.400a  Exceptions from labeling.

    (a) * * *
    (1) A Dewar flask meeting the requirements in Sec.  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 Sec.  171.7 of this subchapter).
* * * * *

0
10. In Sec.  172.407, paragraph (d)(5) is revised and paragraphs (d)(6) 
and (d)(7) are added to read as follows:


Sec.  172.407  Label specifications.

* * * * *
    (d) * * *
    (5) The following color standards in the PANTONE[reg] formula guide 
coated/uncoated (see Sec.  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[reg] 186 U
    (ii) For Orange--Use PANTONE[reg] 151 U
    (iii) For Yellow--Use PANTONE[reg] 109 U
    (iv) For Green--Use PANTONE[reg] 335 U
    (v) For Blue--Use PANTONE[reg] 285 U
    (vi) For Purple--Use PANTONE[reg] 259 U

    (6) Where specific colors from the PANTONE MATCHING SYSTEM[reg] are 
applied as opaque coatings, such as paint, enamel, or plastic, or where 
labels are printed directly on the surface of a packaging, a 
spectrophotometer or other instrumentation must be used to ensure a 
proper match with the color standards in the PANTONE[reg] formula guide 
coated/uncoated for colors prescribed in paragraph (d)(5) of this 
section. PANTONE[reg] 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.

0
11. In Sec.  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:


Sec.  172.504  General placarding requirements.

* * * * *
    (e) * * *

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

    \1\ RADIOACTIVE placard also required for exclusive use 
shipments of low specific activity material and surface contaminated 
objects transported in accordance with Sec.  173.427(b)(4) and (5) 
or (c) of this subchapter.

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

    (f) * * *
    (9) For Class 9, a CLASS 9 placard is not required for domestic 
transportation, including that portion of international transportation, 
defined in Sec.  171.8 of this subchapter, which occurs within the 
United States. However, a bulk packaging must be marked with the 
appropriate identification number on a CLASS 9 placard, an orange 
panel, or a white square-on-point display

[[Page 64473]]

configuration as required by subpart D of this part.
* * * * *

0
12. In Sec. 172.514, paragraph (b) is revised to read as follows:


Sec.  172.514  Bulk packagings.

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

0
13. In Sec.  172.519, paragraph (d)(3) is revised to read as follows:


Sec.  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 Sec.  172.407(d)(4)). As 
an alternative, the PANTONE[reg] formula guide coated/uncoated as 
specified for colors in Sec.  172.407(d)(5) may be used.
* * * * *

0
14. In Sec.  172.604, paragraph (a)(2) is revised to read as follows:


Sec.  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

0
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.


0
16. In Sec.  173.9, paragraph (e)(1) and (2) are revised to read as 
follows:


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

* * * * *
    (e) * * *
    (1) The fumigated lading is unloaded; or
    (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.
* * * * *

0
17. In Sec.  173.29, paragraph (c) introductory text is revised and 
paragraph (h) is added to read as follows:


Sec.  173.29  Empty packagings.

* * * * *
    (c) A non-bulk packaging containing only the residue of a hazardous 
material covered by Table 2 of Sec.  172.504 of this subchapter that is 
not a material poisonous by inhalation or its residue shipped under the 
subsidiary placarding provisions of Sec.  172.505--
* * * * *
    (h) A package that contains a residue of a hazardous substance, 
Class 9, listed in the Sec.  172.101 Table, Appendix A, Table I, that 
does not meet the definition of another hazard class and is not a 
hazardous waste or marine pollutant, may remain marked, labeled and, 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 Sec.  171.8 of this subchapter for a hazardous substance.

0
18. In Sec.  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:


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

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