# Hazardous Materials: Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-33324 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 19, 2011 - **Citation:** 76 FR 3308 ## Text DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, 178, and 180 [Docket Nos. PHMSA-2009-0126 (HM-215K)] RIN 2137-AE45 Hazardous Materials: Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. SUMMARY: PHMSA is amending the Hazardous Materials Regulations to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport limited quantities, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations. DATES: Effective date: January 19, 2011. Voluntary compliance date: PHMSA is authorizing voluntary compliance beginning January 1, 2011. Delayed compliance date: Compliance with the amendments adopted in this final rule is required beginning January 1, 2012. Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of January 19, 2011. FOR FURTHER INFORMATION CONTACT: Michael Stevens, telephone (202) 366-8553, or Shane Kelley, telephone (202) 366-0656, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: I. Background II. Primary Topics of Concern Discussed in the ANPRM III. Comments Submitted in Response to Noteworthy Harmonization Amendments Proposed in the August 24, 2010 NPRM; the Final Rule A. Harmonization Amendments Adopted in This Final Rule B. Harmonization Amendments Not Considered for Adoption in This Final Rule IV. Section-by-Section Review V. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis I. Background In a final rule published under Docket HM-181 (55 FR 52402, December 21, 1990), the Research and Special Programs Administration (RSPA), the predecessor agency to the Pipeline and Hazardous Materials Safety Administration (PHMSA), comprehensively revised the Hazardous Materials Regulations (HMR; 49 CFR Parts 171 to 180) to harmonize U.S. hazardous materials transportation requirements with the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations). The UN Model Regulations are not regulations, but rather are recommendations issued by the UN Committee of Experts on the Transport of Dangerous Goods (UNSCOE) and the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). These Model Regulations are amended and updated biennially by the UNSCOE and serve as the basis for national, regional, and international modal regulations, including the International Maritime Organization's International Maritime Dangerous Goods Code (IMDG Code) and International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions). Since publication of the 1990 rule, we have issued eight additional international harmonization rules (Dockets HM-215A (59 FR 67390, December 29, 1994); HM-215B (62 FR 24690, December 16, 1996); HM-215C (63 FR 57929, October 29, 1998); HM-215D (66 FR 8644, February 1, 2001); HM-215E (68 FR 1013, January 8, 2003); HM-215G (69 FR 76044, December 20, 2004); HM-215I (71 FR 78596, December 29, 2006); and HM-215J (74 FR 2200, January 14, 2009)) based on the corresponding biennial updates of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. To maintain alignment of the HMR with international requirements, in this final rule, we are incorporating changes based on the sixteenth revised edition of the UN Model Regulations, Amendment 35-10 to the IMDG Code, and the 2011-2012 ICAO TI, which becomes effective January 1, 2011 (the IMDG Code is effective January 1, 2012). Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq. ) permits PHMSA to depart from international standards in order to promote safety or other overriding public interest, but otherwise requires PHMSA to align the HMR with international transport standards and requirements to the extent practicable ( see 49 U.S.C. 5120). Harmonization enhances international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials to and from the United States. This becomes increasingly important as the volume of international hazardous materials shipments grows. Harmonization also enhances safety for international movements, but only if the international standards themselves provide an appropriate level of safety. PHMSA actively participates in the development of international standards for the transportation of hazardous materials, frequently advocating the adoption in international standards of particular HMR requirements. When considering the adoption of international standards under the HMR, we review and evaluate each amendment on its own merit, on the basis of its overall impact on transportation safety, and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without diminishing the level of safety currently provided by the HMR and not impose undue burdens on the regulated public. II. Primary Topics of Concern Discussed in the ANPRM PHMSA published an advance notice of proposed rulemaking (ANPRM) (74 FR 53982, October 21, 2009) highlighting issues under consideration for harmonization with international standards and requesting comments as to whether the HMR should be amended to incorporate specific international standards and the potential benefits and costs of doing so. Comments on specific harmonization issues covered in the ANPRM are discussed in brief below. Please review the notice of proposed rulemaking (NPRM) (75 FR 52070, August 24, 2010) for a complete discussion of comments to the ANPRM. A. Limited Quantities and Consumer Commodities PHMSA has long recognized the need to authorize limited exceptions for the transportation of classes and quantities of hazardous materials described as limited quantities, or consumer commodities reclassed as ORM-D. Considerable efforts have been made internationally to harmonize multi-modal standards with regard to the transport of limited quantities, including consumer commodities. PHMSA held public meetings on this issue in February 2006 and March 2008 to discuss potential impacts on domestic stakeholders. Additionally, this issue was discussed during the agency's pre-UN public meetings held in 2006 and 2007. There was considerable domestic interest in pursuing further harmonization internationally due to the potential for substantial savings in transportation costs and improved transportation efficiency. In the ANPRM (74 FR 53982, October 21, 2009), PHMSA invited comments on this issue with regard to aligning the HMR with the UN Model Regulations for the domestic and international transport of limited quantities and consumer commodities. Of particular concern was any potential negative impact on domestic transportation through the elimination of the transportation mechanism for limited quantity hazardous materials reclassed as ORM-D. While some changes adopted in the UN Model Regulations are similar to provisions currently in the HMR ( e.g., inner packaging limits and authorized use of non-specification outer packagings), some changes are not ( e.g., marking and labeling). In the ANPRM, PHMSA suggested that, depending on comments received and our own evaluation, the agency may determine that the significance of any amendments on this issue may warrant a separate rulemaking action. We received several comments submitted in response to the ANPRM supporting adoption of the UN Model Regulation limited quantity provisions into the HMR. The commenters urged PHMSA to move forward and adopt the limited quantity provisions as prescribed in the sixteenth revised edition of the UN Model Regulations. However, several commenters expressed concern that this should not be done at the expense of the ORM-D provisions currently in the HMR. Some altogether opposed the elimination of the existing provisions for ORM-D materials as part of HM-215K and recommended that any changes to the requirements be made through a separate rulemaking. In the NPRM (75 FR 52070, August 24, 2010), PHMSA outlined its determination, partially based on our perception of favorable comments received in response to the ANPRM, that aligning the existing limited quantity provisions in the HMR with the international standards and regulations ( i.e., UN Model Regulations, IMDG Code and the ICAO TI) would enhance safety by facilitating a single, uniform system of transporting limited quantity materials. We emphasized the proposals did not include the immediate or short-term removal of the existing provisions in the HMR for limited quantities reclassed as ORM-D (including those for consumer commodities, cartridges, small arms and cartridges, power device) and included a delayed compliance period we believed was sufficient in length to allow stakeholders time to comply with the transition to the revised limited quantity requirements and eventual elimination of the ORM-D classification. Because the limited quantity provisions in the UN Model Regulations and the IMDG Code are closely aligned with those already contained in the HMR, we contended that domestic alignment for highway, rail and vessel transportation would result in minimal impact and regulatory burden. And, because of the inherent risk unique to air transportation, we believed full harmonization with the ICAO TI (where appropriate) was necessary with regard to the materials authorized and quantity limits for limited quantities (including consumer commodities) intended for transport by air. B. Classification of Division 1.4S Explosives For eight Division 1.4 explosive articles (UN0323, UN0366, UN0441, UN0445, UN0455, UN0456, UN0460, and UN0500), the UN Model Regulations have been amended to require a Type 6(d) test to determine whether such articles may be assigned to Compatibility Group S. Assignment to Compatibility Group S indicates that hazardous effects from accidental functioning are limited to the extent the article or substance does not significantly hinder or prohibit fire fighting or emergency response efforts in the immediate vicinity of a package containing the material. The test is designed to be performed on a single package containing an explosive article or explosive substance to determine if the package is capable of containing any hazardous effects in the event of an accidental functioning of its contents. The amendment is supplemented by revisions to the explosives testing standards in the UN Manual of Tests and Criteria as well as the adoption of a new special provision that would authorize the use of the above mentioned identification numbers only if the results of the Type 6(d) test successfully demonstrate that any hazardous effects are confined within a package. In the ANPRM, we invited commenters to provide data and information concerning the possible safety impacts of the new test provisions and compliance costs that would be incurred if the new test were adopted into the HMR. In addition, we invited commenters to provide suggestions or recommendations concerning whether to apply the test to already-approved explosives. We received several comments both supporting and opposing adoption of the Type 6(d) test to determine whether a Division 1.4 explosive article may be assigned to Compatibility Group S. All the commenters who addressed this issue indicated that, if adopted, the test must be applied to previously-approved articles in a manner that is reasonable and not overly broad. One suggestion was to allow the classification of previously-approved explosive articles to be based on results of testing of product groups by a PHMSA-approved laboratory or on results of self-testing and video documentation by the manufacturer. Commenters opposing adoption of the Type 6(d) test suggested that more research on the practical effect of this testing requirement is necessary and that the lack of grandfathering criteria for products already approved as Division 1.4S explosives ( e.g., power device cartridges) is impractical, expensive, and impedes commerce. They also indicated concern regarding the cost of articles consumed in testing in addition to the cost of pre-testing or redesign of an article by a manufacturer to ensure passing the Type 6(d) test, but did not quantify these costs. C. Classification of Sour Crude Oil Currently, all types of petroleum crude oil are listed as a Class 3 flammable liquid in the § 172.101 Hazardous Materials Table (HMT). PHMSA is aware that transportation of a certain type of crude oil known as “sour” crude oil may pose risks not associated with other types of crude oil due to its inherent potential of evolving hydrogen sulfide, a highly toxic and flammable gas. Sour crude oil, commonly found in North America, contains a high concentration of sulfur. The evolution of hydrogen sulfide vapors from crude oil is dependent on temperature, packaging confinement, transport conditions ( e.g., sloshing), bacteria, and sulfur concentration, among many other potential factors. When transported in bulk packagings such as cargo tanks or tank cars, the evolved hydrogen sulfide gas may build up in the vapor space of the packaging, posing a potential risk, particularly during loading and unloading. Based on the risk of toxic vapors, the UN Model Regulations were amended by assigning a new identification number and shipping description for sour crude oil with a flammable primary hazard and a toxic subsidiary hazard. Additionally, a new special provision was added specifying the assignment of a Packing Group (PG) based on the degree of danger presented by either the flammability or toxicity hazard of the sour crude oil. For example, sour crude oil meeting flammability criteria for Class 3, PG II, and toxicity criteria for Division 6.1, PG I, poisonous-by-inhalation, would be classified as a Class 3, PG I material. In the ANPRM, PHMSA invited commenters to provide data and information concerning the impact on domestic shippers and carriers if these requirements were adopted in the HMR. The agency also asked for comments addressing which hazard communication methods ( e.g., package markings, shipping papers) and/or packaging requirements are most cost-effective for communicating the hazards and reducing the risks of transporting sour crude oil. We received comments opposing adoption of the UN amendments for the description and classification of sour crude oil into the HMR. The commenters recommended against requiring domestic use of the new proper shipping name for sour crude oil with a Division 6.1 subsidiary risk and recommended that use be limited to international transport. Commenters further recommended that PHMSA should require drivers engaged in the loading and unloading of sour crude oil to wear a hydrogen sulfide monitoring device and have respiratory protection accessible, and require warning signs at the cargo tank manhole and area of operation. Additionally, commenters recognized that hydrogen sulfide gas is a hazard, but suggested that classification of crude oil at the time of shipment may not reflect the toxicity of hydrogen sulfide in the vapor space of a cargo tank or other packaging after the crude oil has been in transportation. They also noted that there are best industry practices already in place that address this issue and that the Occupational Safety and Health Administration (OSHA) has requirements in place to communicate the hazards of hydrogen sulfide in the workplace. They supported other means of hazard communication to ensure that workers are aware of the hazards of hydrogen sulfide such as a marking on a bulk packaging. D. IBC Rebottling Under both the UN Model Regulations and the HMR, replacement of the rigid plastic receptacle of a composite IBC is considered a “repair” under certain conditions and, thus not subject to design qualification testing as a new or different design. The UN Model Regulations were amended to specify that a replacement bottle ( i.e., rigid plastic receptacle) must be of the original tested design type and limits the replacement to a bottle from the original manufacturer. In the ANPRM, we invited comments on this amendment and how, if adopted into the HMR, it would impact the use of IBCs in domestic or international commerce. All commenters who addressed this issue supported the adoption of the UN Model Regulations definition of “repair” for IBC rebottling purposes. The comments included a request for an extended compliance date of January 1, 2012 to provide users and manufacturers of composite IBCs adequate time to implement the provision and not place them at an economic disadvantage with international counterparts. E. Metal Hydride Storage Systems in Conveyances A metal hydride storage system is a single complete hydrogen storage system that includes a receptacle, metal hydride, a pressure relief device, a shut-off valve, service equipment, and internal components. The HMR currently do not prescribe specific packaging or shipping methods for metal hydride storage systems containing hydrogen. However, PHMSA has issued a number of special permits to allow the use of these systems for transport. The UN Model Regulations, in new Packing Instruction P205, prescribe standards for the construction, qualification, marking and requalification of such systems. In the ANPRM, PHMSA invited comments on whether similar standards should be adopted into the HMR. One commenter supported adoption of the standards for the construction, qualification, marking, and requalification of metal hydride storage systems containing hydrogen. F. In Vitro Testing for Corrosivity In 1993, RSPA began recognizing an alternative test method ( i.e., in vitro testing commercially available as Corrositex®), which is not carried out in live animals, to determine the corrosivity of a hazardous material for transportation purposes under the terms and conditions specified in a special permit (DOT-SP 10904). Similar in vitro test methods are prescribed in the following Organization for Economic Cooperation and Development (OECD) Guidelines for the Testing of Chemicals and were adopted in the UN Model Regulations: • No. 430, “ In Vitro Skin Corrosion: Transcutaneous Electrical Resistance Test (TER)” (2004); • No. 431, “ In Vitro Skin Corrosion: Human Skin Model Test” (2004); and, • No. 435, “ In Vitro Membrane Barrier Test Method for Skin Corrosion” (2006). Because methods 430 and 431 can be used to determine corrosivity for other than transportation purposes, they cannot be used to determine the Packing Group (PG) assignment of a material that tests positive for corrosivity for the purposes of hazardous materials transportation. A negative result for corrosivity under methods 430 and 431 can, however, preclude further testing to determine PG assignment using method 404, the current OECD Guideline involving in vivo testing or method 435, the newly adopted OECD Guideline involving in vitro testing. All commenters responding to the ANPRM supported adoption and use of the OECD in vitro test methods for determining corrosivity on the basis of reducing the number of tests requiring live animals. III. Comments Submitted in Response to Noteworthy Harmonization Amendments Proposed in the August 24, 2010 NPRM; the Final Rule In our latest harmonization effort, we received over 2,200 comments in response to the NPRM (75 FR 52070, August 24, 2010). The majority of the comments received were from individuals in support of adoption of corrosivity testing methods not based on the results of live animal testing. The following individuals, companies, and organizations submitted comments to the NPRM (in chronological order of submittal). We note, however, that in lieu of listing each individual commenting, we have listed PETA as a proxy for all comments received supporting adoption of corrosivity testing methods alternative to live animal testing: (1) R.R. Street & Co. (Street); (2) Infotrac; (3) Vanguard Logistics Services (VLS); (4) Zebrowski, Department of Energy (DOE); (5) 3M; (6) The Japan Electrical Manufacturer's Association (JEMA); (7) Andersen Products (Andersen); (8) FedEx Express (FedEx); (9) Saft America, Inc. (Saft); (10) People for the Ethical Treatment of Animals (PETA); (11) Toshiba America Electronic Components, Inc. (TAEC); (12) Association of Hazmat Shippers, Inc. (AHS); (13) National Nuclear Security Administration Service Center, DOE (NNSA); (14) Sporting Arms and Ammunition Manufacturer's Institute (SAAMI); (15) Baker Hughes (Baker); (16) Signa Chemistry, Inc. (Signa); (17) Institute of Maker's of Explosives (IME); (18) United Parcel Service (UPS); (19) Titan Specialties, Ltd. (Titan); (20) Human Focused Testing; (21) American Veterinary Medical Association (AVMA); (22) Valspar; (23) Utility Solid Waste Activities Group (USWAG); (24) Trulite, Inc. (Trulite); (25) The Rechargeable Battery Association (PRBA); (26) American Petroleum Institute (API); (27) American Coatings Association, Inc. (ACA); (28) BIC Corporation (BIC); (29) American Trucking Associations (ATA); (30) Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA); (31) Healthcare Distribution Management Association (HDMA); (32) Aviation Suppliers Association (ASA); (33) Modification and Replacement Parts Association (MARPA); (34) International Vessel Operators Dangerous Goods Association (IVODGA); (35) TravelScoot, USA (Scoot); (36) Dangerous Goods Advisory Council (DGAC); (37) Lilliputian Systems, Inc. (LSI); (38) Department of Defense Explosives Safety Board (ESB); (39) Ensign-Bickford Aerospace & Defense (EBAD) (40) Safety Specialists, Inc. (SSI); (41) Owen Compliance Services, Inc. (OCS); (42) Potomac Strategy Associates (PSA); (43) Arkema, Inc. (Arkema); (44) Association of American Railroads (AAR); (45) Air Line Pilots Association (ALPA); (46) US Fuel Cell Council (USFCC); (47) International Air Transport Association (IATA); (48) Alaska Airlines (AA); (49) PPG Industries, Inc. (PPG); and (50) Edgcomb Law Group (ELG). A. Harmonization Amendments Adopted in This Final Rule In this final rule, PHMSA is adopting the following amendments to harmonize the HMR with the most recent revisions to the UN Model Regulations, ICAO Technical Instructions, and the IMDG Code: 1. Petitions for Rulemaking We are addressing one petition for rulemaking, P-1550, from PETA requesting that PHMSA incorporate by reference OECD Guidelines 430, 431 and 435 into the HMR that prescribe in vitro testing methods for determining corrosivity. 2. Hazardous Materials Table (HMT) Amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limitations, and vessel stowage provisions. 3. Organic Peroxide Tables Amendments to the Organic Peroxide Tables to add, revise, or remove certain hazardous materials and provisions. 4. Incorporation by Reference Amendments to incorporate by reference the 2011-2012 ICAO Technical Instructions, Amendment 35-10 to the IMDG Code, sixteenth revised edition of the UN Model Regulations and the fifth revised edition of the UN Manual of Tests and Criteria. Additionally, we are updating our incorporation by reference of the Canadian Transportation of Dangerous Goods Regulations to include Amendment 6 (SOR/2008-34) February 7, 2008 (pertains to miscellaneous amendments); and Amendment 7 (SOR/2007-179) August 22, 2007 (pertains to highway cargo tanks). This incorporation by reference augments the broad reciprocity provided in § 171.12 where the HMR allow the use of the Canadian TDG Regulations under certain conditions when transporting hazardous materials to or from Canada by highway or rail. 5. Limited Quantities We received a number of comments in response to the limited quantity and ORM-D classification amendments proposed in the August 2010 NPRM. Commenters can basically be categorized into two groups: Those supporting harmonization with the international standards and regulations for limited quantities and those in opposition to the eventual elimination of the ORM-D classification. The remainder of the commenters offered suggestions or revisions to clarify or aid understanding of the proposed amendments. Those commenters generally supporting harmonization of the limited quantity provisions include: Alaska Airlines; American Coatings Association; American Trucking Associations; Association of Hazmat Shipper, Inc.; Council on Safe Transportation of Hazardous Articles, Inc.; Dangerous Goods Advisory Council; FedEx Express; International Vessel Operators Dangerous Goods Association; PPG Industries, Inc.; Sporting Arms and Ammunition Manufacturers Institute, Inc.; and United Parcel Service. Those commenters opposing the eventual elimination of the ORM-D hazard classification include: American Coatings Association; Aviation Suppliers Association; Healthcare Distribution Management Association; Modification and Replacement Parts Association; PPG Industries, Inc.; Safety Specialists, Inc.; Utility Solid Waste Activities Group; and Valspar. Due to the large number of commenters and the variety of comments provided, we outline pertinent topic areas to better address all the comments. The comments are discussed and addressed as follows: a. Air-specific requirements. In the NPRM, we proposed to revise § 173.27 to add a new table outlining air transport requirements for limited quantity material including package quantity limits consistent with the ICAO Technical Instructions. The proposed quantity limits for air transport differ from the quantity limits for other modes, which was a point of contention for some commenters. Three commenters (ACA, DGAC, SSI) disagreed with the adoption of the proposed package limits in the table and one commenter (COSTHA) expressed concern that the table is too broad. ACA asserted: Introducing these limits will only frustrate domestic transportation and introduce unnecessary complexity into a fairly simple process. In the coatings industry, air shipments are not the norm and are only used when there is some urgency or the destination is a remote location. Requiring different inner and outer packaging quantity limits for air will eliminate the efficiency of a “one size fits all LQ shipments” process. SSI added: Some materials that were ORM-D may not be eligible to be shipped as limited quantity. Most inner packagings have been severely reduced. Isopropanol UN1219 (rubbing alcohol) can be presently shipped in inner containers up to 1 liter. Under the new Table 3 the inner container is reduced to 500 milliliter. This product is normally sold in pints, quarts, and gallons. Quarts would not be eligible for limited quantity air shipments. This will require shippers to ship in UN standard packaging, apply hazard class labels and meet all other requirements for fully regulated shipments. We understand that more inner packagings may be required of a material authorized to be shipped as a limited quantity by air. SSI used Isopropanol as an example in their comments where the inner packaging quantity limits are reduced from 1 liter to 500 milliliters for a Packing Group II Class 3 (flammable liquid) when the current limits of the HMR are compared with the ICAO Technical Instructions. SSI also stated that the product is sold in pints, quarts and gallons. Currently under the HMR, the gallon is ineligible as a limited quantity. Under the amendment proposed in the NPRM, the gallon and quart would be ineligible for air transport as a limited quantity. However, because the outer packaging quantity limit is 1 liter for a Packing Group II Class 3 (flammable liquid), SSI would just have to substitute 2 one-pint inner packagings for a one-quart container of product in the same package. DGAC reasoned: The HMR limited quantity provisions predate ICAO TI limited quantity provisions. When limited quantity provisions were introduced in the ICAO TI * * * on the basis of existing U.S. limited quantity provisions, additional limitations were included * * * RSPA and PHMSA have, up until now, not deemed it necessary to incorporate these limitations in the HMR. The long intervening period between when the limits were first introduced in the ICAO TI and the present suggests that it is unnecessary to adopt these limits for the sake of harmonization. Further, [we are] unaware of any new safety information that would justify introducing these limits at this time. DGAC further argued: Introducing these limits will serve to frustrate domestic transportation. A key objective of * * * PHMSA has been to provide multimodal harmonization * * * so that the same package will essentially be suitable by all modes of transportation. This is currently true for limited quantity packages * * * By introducing new limits, as shown in the table referenced by proposed § 173.27(f), limited quantity packages prepared for ground or sea transport may not necessarily be suitable for air transport. Most shippers commonly transport * * * limited quantity packages by modes other than air. Currently, with limited quantity package requirements for all modes closely aligned, transporting a limited quantity package is relatively straightforward. If the limitations on inner and outer package quantity limits and new performance requirements are introduced * * * it may be necessary to repackage ground/sea limited quantity packages for purposes of air transport. [We] are unaware of any safety concerns that would justify the imposition of these new limitations. Major differences already exist under the HMR for the air transport of limited quantities as compared to other modes. For example, limited quantity and consumer commodity inner packagings containing liquids are subject to the pressure differential capability requirements in § 173.27(c). COSTHA explained further confusion: It is important for shippers to use the § 172.101 Table to determine eligibility for a limited quantity * * * However, if one uses only Table 3, the shipper may inappropriately determine that a material is eligible for shipment as a limited quantity. For example, [c]hlorosilanes are not permitted to be packaged in accordance with limited quantity provisions * * * however, [certain classes of PG II materials] (many chlorosilanes fall into these classes) are identified as having acceptable limits * * * according to the § 173.27 Table 3. Given that limited quantities is a source of confusion for many shippers and carriers, this table does less to clarify a point and more to confuse the reader. Section 173.27(f) clearly states that, for transportation by aircraft, materials packaged as limited quantities must be eligible for transportation aboard a passenger-carrying aircraft. In this final rule, we are adding additional clarification in § 173.27(f) to emphasize this critical step in determining limited quantity eligibility by also referring the reader to Column (9A) of the HMT. As stated in the NPRM, PHMSA is studying the feasibility of revising the HMT to further assist in determining limited quantity eligibility by air or possibly by all modes of transportation. Two commenters (ASA, MARPA) were critical of the nature of proposed regulatory changes without an apparent safety need, specifically with regard to the limited quantity marking for air transport consistent with the ICAO Technical Instructions. The commenters argued that the constant changes make compliance with the regulations difficult. ASA and MARPA stated: The 2009-2010 [ICAO TI] authorized * * * the UN identification number in a diamond shape [as] the mandatory way to mark limited quantity packages starting in 2011 * * * Beginning in 2011, ICAO has abandoned the marking protocols announced in 2009, and established a new, different identification protocol for identifying limited quantities * * * Instead of placing the UN identification number in the diamond shape, shippers will be required to place a “Y” in the diamond shape * * * There appears to be no reason other than mere harmonization for the sake of harmonization for adopting the ICAO limited quantity marking. [The] marking provides no additional value * * * because many people in the United States system will have no idea what the “Y” marking means * * * Although “Y” is the letter that precedes limited quantity packing instructions in the ICAO system, the letter “Y” has no special meaning in the existing United States Regulations. b. Dual marking system. Support for harmonization efforts including the adoption of the square-on-point limited quantity marking ( i.e., the square-on-point with top and bottom portions black and the center white) generally coincided with support for the eventual elimination of the ORM-D classification along with the ORM-D marking. The basis for support was that this would eliminate a dual system of marking packages for domestic and international transportation. With regard to elimination of a dual marking system, some commenters (AA, FedEx, IVOGDA) indicated that a dual system of marking creates confusion and requires carriers and shippers to adjust their training programs to account for this dual system. They therefore recommend PHMSA consider an earlier implementation date than the proposed January 1, 2013 date. AA added: We encounter almost every day reused boxes in the U.S. mail, passenger baggage, or cargo shipments that have old ORM-D marks. This takes considerable time to inspect and causes frustration to the public when non-hazardous shipments are denied transportation because of a marking they do not understand as an indication of hazardous materials. PHMSA notes that adoption of a new limited quantity marking(s) may not necessarily alleviate or eliminate use of packaging premarked with the limited quantity square-on-point for non-hazardous materials. Notwithstanding the general comments regarding dual marking, several commenters offered suggestions or revisions to improve or clarify the proposed requirements. As part of the NPRM, we authorized voluntary use of the limited quantity marking. UPS urged PHMSA to delay voluntary use to allow carriers time to develop appropriate training in response to a final rule, stating that: In [our] experience, this kind of authorization * * * can lead to practical difficulties which in turn could have compliance and safety implications * * * Training in UPS will be needed to educate U.S. package handlers of the meaning of the limited quantity marking. Additionally, on the basis of their opposition to adoption of the air transport requirements for limited quantities consistent with the ICAO TI, DGAC recommended that: The “Y” package mark [proposed] in § 172.315 not be required * * * [and] recommend that [PHMSA] allow permissive use of the “Y” mark for all modes of transport when the package meets the relevant requirements of the ICAO TI. We agree with the DGAC recommendation that a “Y” marked package in full conformance with the air transport requirements for a limited quantity package should be authorized transportation by all modes and are revising § 171.22 accordingly. However, we do not agree with their suggestion that the limited quantity “Y” mark be voluntary. There are currently two different ways to mark a package of limited quantities in the HMR and a third (four if counting packaged ORM-D-AIR materials) would be very disruptive. Therefore, in this final rule, PHMSA is adopting the “Y” mark as proposed and providing a transition period to allow for the continued use of existing markings until January 1, 2012. c. Elimination of the ORM-D class. Most commenters opposing the elimination of the ORM-D classification recommend using a separate rulemaking to implement this proposal. Some question whether the costs of eliminating this classification have been fully considered; others question whether there is sufficient safety justification to warrant replacing the current domestic ORM-D provisions with internationally harmonized provisions. A sampling of comments received follows. ACA argued: Although [we] supported harmonization of the limited quantities exceptions at the UN discussions, [there was an] understanding that the consumer commodity exception was a separate issue * * * In the coatings and adhesives industry, we are unaware of any major incidents with consumer commodity shipments. While PHMSA indicates that “aligning the existing limited quantity provisions in the HMR with the international standards will substantially enhance safety,” we question how this applies to the proposal to eliminate ORM-D consumer commodities. Valspar asserted: We believe PHMSA has overreached the HM-215 harmonization process by proposing * * * to eliminate the well-defined ORM-D (Consumer Commodity) hazard class. We believe any proposal * * * should not be linked to the international harmonization program. In several industry/regulatory conferences it has been proposed that Limited Quantity and Consumer Commodity are synonymous. We do not agree with this premise and strive to ensure that our “Consumer Commodities” meet the spirit and HMR definition of “* * * intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use.” [We ship] many items under Limited Quantity provisions that we do not believe meet the “suitability” test and assert there is an important distinction between the two. We applaud PHMSA for clearly defining the pathway to ORM-D through Limited Quantity and Special Provision options and can only imagine whether this can be misused through other less clear regulation * * * We challenge PHMSA to revisit the assertion to Executive Order 12866 cited in the HM-215K NPRM that only considers the listed harmonization to be beneficial, with no acknowledgement of the financial cost to ORM-D shippers. DGAC expressed concern that: Eliminating the ORM-D classification and package marking [will make it] that such packages will no longer be excepted from the § 175.75 requirements for air transport. No similar requirement applies under the ICAO TI so * * * this change cannot be justified on the basis of harmonization * * * [We believe] PHMSA considers limited quantity packages and currently classified ORM-D packages as posing comparable hazard[s]. Consistent with that approach, we recommend that PHMSA similarly except all limited quantity packages from the § 175.75 requirements. We agree with DGAC regarding § 175.75 quantity limits for limited quantity packages and are revising the section accordingly. Limited quantity shipments will enjoy the same exception from the § 175.75 quantity limits as ORM-D-AIR materials currently receive. USWAG stated: We believe elimination of the ORM-D standards for transportation * * * will disrupt longstanding shipping practices while failing to provide commensurate safety benefits. The commenter also expressed concern for downstream shippers who have received ORM-D packages but can no longer transport this package beginning on the January 1, 2014 proposed compliance date. USWAG encouraged PHMSA to implement a phased-in approach that would authorize downstream shippers (that do not repackage these materials) to use ORM-D provisions for an additional period of time. One commenter (HDMA) provided information that the proposal as written would impose significant cost on the domestic transport of medicines and other healthcare or consumer products. HDMA members concluded that compliance with the regulations would require replacement of more than 10 million plastic totes embossed with the ORM-D marking, costing members an estimated $70 million to purchase new totes with the new limited quantity marking. HDMA is prepared to phase out the use of totes with the ORM-D marking but believes this should be done over an extended period of time to enable existing totes embossed with the marking to be used over their lifetime. HDMA stated: PHMSA may not have recognized that some industries rely on containers that are embossed with the transport mark and hence conversion to a new mark is considerably more complicated than simply changing a label. Just as PHMSA has done in the past, if there is merit to a particular segment of the regulated community requiring a longer transition period to be considered, it shall be observed on a case-by-case basis. In their comments, HDMA did not indicate what a “normal” lifetime would be. In their defense, however, they provided comments that were quantified and directly related to their concerns about the regulatory and economic burden placed upon their particular industry. Finally, several commenters ( e.g., COSTHA, FedEx) noted concern over use of the ORM-D mark after the transition period ends ( i.e., beginning January 1, 2014). The commenters recommend that PHMSA clarify that at the end of the transition period, a package marked with the ORM-D mark will no longer indicate that a packaging contains a hazardous material ( i.e., a consumer commodity). d. Conclusion. In the August 2010 NPRM, PHMSA outlined our determination, partially based on our perception of favorable comments received in response to the ANPRM, that aligning the existing limited quantity provisions in the HMR with the international standards and regulations ( i.e., UN Model Regulations, IMDG Code and the ICAO TI) would enhance safety by facilitating a single, uniform system of transporting limited quantity materials. We emphasized the proposals did not include the immediate or short-term removal of the existing provisions in the HMR for limited quantities reclassed as ORM-D (including those for consumer commodities, cartridges, small arms and cartridges, power device) and included a delayed compliance period we believed was sufficient in length to allow stakeholders time to comply with the transition to the revised limited quantity requirements and eventual elimination of the ORM-D classification. Based on careful consideration of the comments received in response to the proposals made in the NPRM, PHMSA is moving forward with a substantially revised final rule that adopts the new limited quantity provisions and the eventual phase-out of the ORM-D hazard class. This will implement a standardized system for national and international multimodal transportation. The approach of deminimis quantities, excepted quantities, limited quantities and consumer commodities will all have the same provisions and requirements for international and national transportation in a system that will promote compliance, efficiency and consistent training and lower costs after implementation. 6. Classification of Certain Division 1.4S Explosives In the August 24, 2010 NPRM, PHMSA stated it understood commenter concerns that prescribing additional tests usually results in increased research and development costs. PHMSA also acknowledged that it believed there was merit to additional prescribed tests when they result in a credible and measureable increase in safety. Consequently, in the NPRM we proposed to require the phased-in testing of all new and previously approved Division 1.4S explosives articles and substances, depending on the intended mode of transport. For newly produced explosive articles, a person who successfully performs the Type 6(d) test would not be required to also perform the Type 6(a) test. PHMSA believes such initiatives will greatly reduce research and development costs without compromising safety. In the NPRM, PHMSA proposed to adopt the requirement for the Type 6(d) test as prescribed in Section 16.7 of the fifth revised edition of the UN Manual of Tests and Criteria in the new § 172.102(c)(1), special provision 347. For affected articles (or substances) intended for transportation by aircraft, the proposed compliance date of this new requirement was April 1, 2011. If a manufacturer or approval holder of affected articles that previously classed and approved an article as Division 1.4S chooses to continue offering such shipments by aircraft, we proposed the articles must be successfully tested under Test Series 6(d) and a new approval be obtained from PHMSA. Additionally, we proposed that a previously classed and approved Division 1.4S article that is not successfully tested under Test Series 6(d) must be assigned to a compatibility group other than “S” ( e.g., B, C, or D) prior to the April 1, 2011 compliance date if intended for transportation by aircraft on or after that date. PHMSA also proposed that the effective date of testing to maintain Division 1.4S classification or reassignment to a higher compatibility group other than “S” be no later than January 1, 2014 for Division 1.4S articles approved prior to January 1, 2012 and are intended for domestic highway or rail transportation. For previously-approved affected articles transported by highway, rail and vessel, reassignment to a compatibility group other than “S” may be accomplished by using existing data and, when recommended by an authorized examination and testing agency, approved by PHMSA. For international highway, rail and vessel transportation, the effective date of Type 6(d) testing requirements or reassignment for new and previously produced affected articles would be January 1, 2012 ( i.e., the compliance date of a final rule under this docket, if adopted as proposed). A number of commenters (Baker, EBAD, ESD, IME, Infotrac, NNSA, OCS, SAAMI, and Titan) addressed our proposal to adopt the Type 6(d) test and associated requirements. Several commenters expressed support for comments submitted by IME and requested that PHMSA give consideration to their comments. Thus, our response to comments will primarily be structured based on the comments IME submitted. a. Compliance dates (i) Air transport. IME expressed concern that the proposed compliance date for Type 6(d) testing to determine Division 1.4S classification for materials to be transported by air precedes the compliance date for the rulemaking in general. IME stated: The “compliance date of a final rule under this docket” will be January 1, 2012. Simultaneously, however, the proposal establishes a compliance date for transportation by aircraft of April 1, 2011. Accordingly, the compliance date for an individual mode regulated under the rule would precede the compliance date for the rule itself, rendering the April 1, 2011 compliance date both unreasonable and unenforceable. We disagree. As general policy, PHMSA implements a one-year transition period for international harmonization rulemakings. Thus, we typically publish a rulemaking under the HM-215 docket to be effective January 1 of a given year (to coincide with international effective dates) and require compliance one year later to afford stakeholders the opportunity to prepare for compliance. PHMSA is not bound to the one year transition period and has discretion to institute an earlier compliance date when circumstances warrant. The implementation of this requirement was viewed to be significant by the ICAO Dangerous Goods Panel and an emergency addendum was requested from the Air Navigation Commission. Preventing the transportation of an explosive article with the ability to exit its packaging that could result in collateral damage on a passenger aircraft was determined to be an immediate safety concern and was implemented on very short notice for international air transportation. Therefore, because of concern for the safety in transport of these articles by air and to affect a transition for international air transport with minimal disharmony in compliance dates (the Type 6(d) test is required under ICAO Technical Instructions as of January 1, 2011), we proposed to implement the April 1, 2011, compliance date for Type 6(d) testing for transport by aircraft. IME also expressed concern that the proposed compliance date of April 1, 2011 for air transport is unattainable. IME stated further: [T]hat PHMSA's internal policy establishes a 120-day review period for processing approvals * * *. [W]e have determined that in order to meet the April 1, 2011 compliance deadline for air transportation, approval applicants planning to continue shipping by air would have to ensure that all required testing is completed and the results submitted to PHMSA by December 2, 2010. The required testing must be performed or witnessed by “an authorized examination and testing agency approved by PHMSA.” On average, the lead time required to schedule testing with a PHMSA-approved laboratory is six weeks. An additional two weeks would then be required for testing the laboratory to perform the required tests and generate a report * * *. Accordingly, applicants intending to meet the April 1, 2011 deadline would have [had to] finalize arrangements with the testing laboratories by October 4, 2010—twenty-one days prior to the close of the public comment period * * *. Given the impossibility of timely compliance, the proposed April 1, 2011 date will function not as a compliance deadline, but as an automatic prohibition on [of] air transport of the affected 1.4S articles. PHMSA acknowledges the strict compliance timeline proposed for the air transport of affected articles and substances. We note, however, that the PHMSA imposed 120-day period for processing of approvals is not a minimum time period but general guidance for estimating the time period to review and process an approval application dependent on multiple factors such as the complexity of an application or errors in its submittal. The approval process may take less than 120 days and routinely does. Additionally, PHMSA's Approvals and Permits Division recently streamlined the explosive approval process to accommodate an influx of approval requests based on adoption of Type 6(d) test prescribed in this rulemaking. Finally, shippers are not constrained to the use of domestic laboratories approved by PHMSA but may utilize the resources of laboratories under the umbrella of other competent authorities ( e.g., Transport Canada). However, given the strict timeline proposed in the August 2010 NPRM, the significant number of approval applications we expect to receive, and the potential for delays at authorized testing laboratories attempting to accommodate the volume of testing or reclassification requests, we are extending the compliance date for air transport to July 1, 2011. (ii) Vessel transport. IME noted our failure to indicate a compliance date for domestic vessel transportation. We agree. Our intent was to implement a compliance date that coincides with the effective date of the IMDG Code requirement for the Type 6(d) test (January 1, 2012). Therefore in this final rule, we will require the Type 6(d) test for Division 1.4S classification beginning January 1, 2012 for both domestic and international vessel transportation. (iii) Modal variability. IME expressed concern that the varying compliance dates for air transport (proposed April 1, 2011), international highway, rail, and vessel (domestic and international) (proposed January 1, 2012), and domestic highway and rail (proposed January 1, 2014) will result in confusion and unintentional noncompliance with specific regard to downstream customers. IME reasoned: The customer has no way of knowing that the manufacturer ships only domestically [by highway] and has not, therefore, reclassified the product to meet the earlier compliance date for international transport. This leads to unintentional noncompliance by the downstream customer * * *. We recommend that PHMSA promulgate a single compliance date for all modes and for domestic and international transportation. We disagree. Unawareness of a requirement cannot be used as a defense for non-compliance. Downstream customers or shippers may utilize a number of resources to determine whether an explosive article or substance subject to the Type 6(d) test has been successfully tested. For example, they can obtain a copy of the approval issued by PHMSA. Additionally, it is the shipper's responsibility to properly class and describe a material ( see § 173.22) and to be trained on any applicable requirements ( see § 172.704) of the HMR. That said, the Approvals and Permits Division will issue guidance to all current approval holders for affected Division 1.4S articles and materials to provide detailed instruction on the new requirement for Type 6(d) testing. This will include issuing new or amended approvals indicating whether a Type 6(d) test has been successfully conducted which can then be used by downstream customers and shippers to aid in transport decision-making. b. Testing requirements. (i) Self-testing. In response to the ANPRM, IME recommended allowing self-testing and video documentation for articles previously approved as Division 1.4S. IME continued to assert that testing requirements for previously approved articles not be overly broad and questioned why this recommendation was not addressed even though PHMSA specifically acknowledged IME's comments in the NPRM. IME reiterated: Providing manufacturers with the option to self-test is an effective means of ensuring reasonable application of the new test. Additionally, allowing self-testing of already approved explosives articles will assist industry in minimizing the financial impact of implementation of a new test on already approved, safely transported, explosives. We disagree. PHMSA believes a uniform process for testing using the Type 6(d) test to determine Division 1.4S classification is the best approach and we do not believe incorporating variability into the process by allowing self-testing and video-documentation for already approved articles complements this approach. PHMSA understands the need to facilitate any possible cost reduction regarding the application of this new testing requirement. We also maintain, however, that in the interest of uniform safety standards under the HMR, requiring that testing be observed or conducted by a PHMSA-approved laboratory is the best approach. This approach will not be codified in the HMR but rather will be incorporated into the explosives approval process as specified in § 173.56 of the HMR. (ii) Clarification of NPRM preamble. Certain phrases and terms were used in the August 2010, NPRM which have caused confusion. We would like to clarify. Regarding the phrase “incremental testing,” use of the phrase refers to the staggered compliance dates depending on the mode of transport or domestic/international transport and does not indicate differences in reclassification testing. We are removing any reference to this phrase in the preamble to this final rule to avoid further confusion. Regarding the term “design,” as in “previously approved designs,” the term was meant to signify individual explosives articles or substances. We are also deleting any use of this term in the preamble to this final rule to avoid any ambiguity in the use of the term. (iii) Modal difference. In response to our proposed implementation of the new testing requirement for Division 1.4S classification, IME objected to any varying testing criteria tied to the intended mode of transport, stating: Such action is not consistent with the UN classification system; additionally, an explosive's reaction to stimuli is not affected by the mode of transport. PHMSA offers no rationale for excluding the use of existing test data for the reclassification of articles intended for air transport, and the distinction would inevitably result in confusion and unintended noncompliance in the regulated community. We agree that there should be uniform testing criteria across all modes. We apologize for the lack of clarity in implementation of this new testing requirement and will clarify further in the following section (c) discussion of our implementation of the Type 6(d) test. (iv) Laboratory recommendation. For previously approved articles, we proposed to allow reassignment to a compatibility group other than “S” using existing data and when recommended by a PHMSA-approved laboratory. IME did not support the proposal to require a recommendation from a PHMSA-approved laboratory where a previously approved article is being reassigned. IME argued: Inability to successfully pass the new Type 6(d) test does not invalidate the original laboratory tests and recommendation[s] that were previously sufficient to attain 1.4S classification. Accordingly, there is no rational basis for requiring a laboratory recommendation to support a downgrade in classification. A laboratory recommendation should only be required where the original classification is not supported by laboratory testing and a corresponding recommendation * * * [W]e are also concerned that if the proposal is promulgated as drafted, some testing laboratories may be reticent to issue the required recommendation solely on the basis of existing test data, and may require new testing. We appreciate the concerns presented by IME. Again, we apologize for any lack of clarity in implementing this new provision. As indicated previously, our Approvals and Permits Division will be issuing guidance and instruction on testing or reclassification of previously approved Division 1.4S articles or substances. As part of that instruction and in order to alleviate any potential problems from laboratories being reticent to provide a recommendation based on existing data, the Approvals and Permits Division will be providing guidelines to laboratories for which types or batches of already approved articles and substances should be reclassed into which type of downgraded compatibility group. c. Implementation of the Type 6(d) test in the explosives approval process. As IME accurately summarized in its comments, there are three categories of explosive articles or substances affected by the test requirement: (1) Previously approved Division 1.4S articles that will pass the Type 6(d) test; (2) previously approved Division 1.4S articles that will not pass the Type 6(d) test and therefore need to be reassigned to a more conservative compatibility group other than “S”; and (3) new explosive articles for which Division 1.4S classification must be determined through successful Type 6(d) testing. All explosive articles affected by the Type 6(d) test requirement fit into these three categories regardless of the mode of transport. The compliance date for affected articles is dependent upon the intended mode of transport and whether they are to be transported domestically or internationally. Beginning January 1, 2012, any new explosive articles must be successfully subjected to the Type 6(d) test to determine whether Division 1.4S classification is appropriate. However, for a new explosive material intended for transport by aircraft, the compliance date for successful Type 6(d) testing is no later than July 1, 2011. For existing approved Division 1.4S articles intended for transport by air, successful Type 6(d) testing is also required no later than July 1, 2011; otherwise, the articles must be reassigned to another compatibility group and a new approval issued by PHMSA prior to being offered for transportation or transported by aircraft. Beginning January 1, 2012, existing approved Division 1.4S articles intended for international transport by highway, rail, or vessel and for domestic transport by vessel, successful Type 6(d) testing is required; otherwise, the articles must be reassigned to another compatibility group and a new approval issued by PHMSA prior to being offered for transportation. Finally, for existing approved Division 1.4S articles intended for domestic transportation by highway or rail, successful testing or compatibility group reassignment is required beginning January 1, 2014. We realize the intended mode of transport may change as markets change and evolve but staggered compliance dates we believe are necessary in order to provide sufficient time to manufacturers, shippers, PHMSA-approved laboratories, and our Approvals and Permits Division to accommodate the number of approved Division 1.4S articles that will need testing or reclassification as well as attempting to allay some of the costs to manufacturers who only transport by domestic highway or rail. d. Federal considerations. Two commenters (ESB, NNSA) within the Department of Defense and Department of Energy, respectively, objected to the Type 6(d) test requirement for previously approved Division 1.4S explosive material based on cost and logistical concerns. NNSA noted: [M]ore significant than the added costs, are the limited testing assets available necessary to complete testing by the prescribed deadline in the NPRM. [We do not] recognize the need to conduct UN Test Series 6(d) testing on all future permanent hazard classification requests as specified in the NPRM. ESB added: [We object to] with applying the test Type 6(d) for articles previously classified. DOD has been assigning classifications using a methodology that includes assessing projections, fireballs, and jets of flame from unconfined initiation testing. DOD would consider this methodology as equivalent testing and criteria for the assignments of the eight Divisions 1.4 explosive [a]rticles. The DOD [has] not noted any transportation issues with the 378 articles assigned these UN numbers * * * Conducting test Type 6(d) for the 378 articles would take a considerable amount of time without any credible or measurable increase in safety * * * Reclassifying * * * by reassigning CGs other than S is also not a viable option due to the complexity of DOD logistics. Consolidating, and remarking each shipping container located at strategic positions around the world for [defense purposes] would be costly, time consuming and potentially have little safety improvements. ESB recommended adding a grandfathered exception or issuing a special permit for previously approved DOD Division 1.4S material. We acknowledge concerns by Federal agencies regarding costs and time constraints in the interest of national security. We are currently working directly with potentially affected government stakeholders to remedy concerns regarding implementation of the new requirement for the Type 6(d) test on such entities. 7. Classification of Sour Crude Oil PHMSA agreed with comments submitted in response to the October 2009 ANPRM that a new proper shipping name is not necessary and that there are more appropriate ways to communicate the potential inhalation hazard risk to transport workers. Therefore, in the August 2010 NPRM, PHMSA proposed to adopt the new proper shipping name found in the UN Model Regulations—“Petroleum sour crude oil, flammable, toxic”—with the letter “I” in Column (1) of the HMT indicating that this description is appropriate for use during international transportation. However, PHMSA did not propose to require use of the new proper shipping name for domestic transportation. PHMSA did propose that a new marking be applied to bulk packagings containing sour crude oil to communicate the potential inhalation risk in transportation. Three commenters (API, ATA, DGAC) opposed our proposed requirements as ill-conceived and impractical and had concerns with the new marking. They believe the new marking is not necessary based on industry best practices already in place. One commenter (AAR) sought clarification of rail carrier requirements in relation to the proposed marking requirement. Although the commenters opposed our proposed requirements, they strongly support hazard communication processes and procedures to protect employees, the public and the environment from any unreasonable risk of danger from hydrogen sulfide gas. API noted: Cargo specific testing of individual packages upon loading, followed by the required identification, classification, packaging selection, marks, labels, placards, and documentation process is impractical. The physical and chemical criteria of the DG/HazMat define the basic shipping information * * * The preparation of shipping information and selection of packagings is typically done well in advance of loading on the basis of known, reliably measured, physical and chemical criteria of the materials being transported. When a wide range of the test results is possible, the DG/HazMat classifiers generally utilize the most conservative data to develop the basic shipping information * * * It is impossible to predict the concentration of H2S in the head space vapors evolving from liquid petroleum crude oils. There is not [a] standardized test, statistical correlation, or known methodology to do this * * * Without a reliable, proven methodology, any attempt to develop a classification process regarding potential, future H2S vapor space concentrations is unrealistic * * * API could support the use of a differentiated graphic, unique in communicating the potential H2S vapor [but any] such mark should be considered voluntary and not mandated * * *. Companies should be allowed the flexibility in choosing an option that works best for their operations. DGAC added: [W]e are concerned that providing a warning for select crude oils may result in decreased vigilance when other substances also posing a potential hydrogen sulfide risk are handled * * *. If * * * PHMSA maintains that a mark is still necessary, we recommend that the applicability of any marking be limited to cargo tank truck operations * * * PHMSA should allow the warning to appear in the vicinity of the loading/unloading operation or on the vehicle at the loading location. This would avoid the need to add and remove the mark from the cargo tank truck * * * We consider the proposed GHS poison mark to be inappropriate * * * Applying the PHMSA proposed mark on crude oil tanks that do not meet the inhalation toxicity criteria results in a hazard communication conflict which should and can be avoided * * *. Should PHMSA maintain a warning is needed, we recommend a warning sign in English that conveys the message that there is a potential hydrogen sulfide hazard. An example could be * * * “Danger, Possible Hydrogen Sulfide Inhalation Hazard,” * * * [to be possibly] supplemented by pictograms. ATA expressed concerns that: Not every load of sour crude will form hydrogen sulfide during transportation, which will require carriers to repeatedly affix and remove markings * * * If carriers are required to repeatedly alter marking requirements, issues of employee safety from climbing on top of tank trucks as well as economic issues * * * must be better understood. [We] recommend that the warning be located at the loading or unloading facility rather than on the tank truck or other bulk container. We agree in part with the comments. We continue to maintain that there is a safety risk to hazmat employees that may become exposed to hydrogen sulfide vapor in proximity to openings on packagings during a loading or unloading operation due to elevated concentrations of hydrogen sulfide vapors. We do not believe this risk is limited to cargo tank motor vehicles. It may be that the primary mode of transportation for petroleum crude oil is by cargo tank motor vehicle, but we also continue to maintain that any proposed requirement should apply to all bulk packagings as we believe this risk may be present in any packaging with a bulk quantity of petroleum crude oil. PHMSA agrees with commenters who have stated that a hazard warning statement specific to hydrogen sulfide gas on bulk packagings would provide for appropriate communication of the risk of potential exposure to such gas. PHMSA notes that such a marking is both specific to the gas and aligns with corresponding warnings currently employed in practice on the shipping documentation. Therefore, in this final rule, PHMSA is amending the marking requirement originally proposed to provide more flexibility to shippers and carriers by allowing a text warning such as “Danger, Possible Hydrogen Sulfide Inhalation Hazard” on bulk packagings containing sour crude to communicate the potential inhalation risk in transportation. See Section 172.327 for a discussion of the new marking requirements. 8. IBC Rebottling In the NPRM, PHMSA proposed to adopt the revised definition of “repair” for composite IBCs consistent with international standards. To specifically address commenters' concerns, PHMSA noted that any proposed compliance date would be no earlier than January 1, 2012, thus providing ample time to comply with the new IBC requirement. We did not receive any additional comments in response to the NPRM. Therefore, in this final rule we are adopting the revised definition of “repair” of an IBC as proposed. See Section 180.350 for a discussion of the revised requirement. 9. Metal Hydride Storage Systems in Conveyances In the August 2010 NPRM, PHMSA proposed to adopt the standards for the construction, qualification, marking and requalification of hydrogen in metal hydride storage systems adopted in the UN Model Regulations. We did not receive any additional comments in response to the NPRM. Therefore, in this final rule we are adopting the requirements as proposed. See Section 173.311 for a discussion of requirements for hydrogen in a metal hydride storage system. 10. In Vitro Testing for Corrosivity Based on the overwhelming support for adoption into the HMR, in the NPRM PHMSA proposed to adopt and authorize the use of the OECD in vitro methods. We received over 2,200 comments additional to that received from PETA, in response to the NPRM supporting the adoption of in vitro testing methods to determine corrosivity and urging PHMSA to stop the requirement for use of methods based on live animal testing. Therefore, in this final rule we are adopting the OECD in vitro testing methods as proposed. See Section 173.137 for further discussion of such methods. B. Harmonization Amendments Not Considered for Adoption in This Final Rule This final rule makes changes to the HMR based on amendments made in the UN Model Regulations (sixteenth revised edition), IMDG Code (Amendment 35-10) and the ICAO Technical Instructions (2011-2012), which becomes effective January 1, 2011 (the IMDG Code is effective January 1, 2012). We are not, however, adopting all the amendments made to the various international standards into the HMR. In many cases, we have not adopted amendments to the international recommendations and regulations because the framework or structure of the HMR makes adoption unnecessary. In other cases, we have handled, or will be handling, the amendments in separate rulemaking proceedings. One of the goals of this rulemaking is to continue to maintain consistency between the HMR and the international requirements. We are not striving to make the HMR identical to the international regulations, but rather to remove or avoid potential barriers to international transportation. Below is a listing of those significant amendments to the international regulations that we are not adopting in this final rule, with a brief explanation of why the amendment was not included: 1. Requirements for Radioactive Materials In the NPRM, we did not propose to adopt provisions pertaining to the transportation of Class 7 (radioactive) materials into the HMR. Amendments to requirements pertaining to the transportation of Class 7 (radioactive) materials are based on changes contained in the International Atomic Energy Agency (IAEA) publication, “IAEA Safety Standards: Regulations for the Safe Transport of Radioactive Materials.” Due to their complexity, these changes are being addressed in a separate rulemaking. 2. Requirements for Lithium Batteries PHMSA published an NPRM under Docket HM-224F (75 FR 1302, January 11, 2010) that proposed to adopt provisions to ensure all lithium batteries are packaged properly to reduce the possibility of damage to lithium batteries that could lead to a catastrophic incident, and to minimize the consequences of an incident should one occur. In addition, PHMSA proposed to require lithium battery shipments to be accompanied by hazard communication that ensures appropriate and careful handling by air carrier personnel, including the flight crew, and informs both transport workers and emergency response personnel of actions to be taken in an emergency. The NPRM, which PHMSA developed in close coordination with our colleagues in the Federal Aviation Administration, is the latest in a series of actions PHMSA has taken to address the very serious risks posed by lithium batteries in transportation. The NPRM included proposed revisions to the HMR that were based on lithium battery provisions in the sixteenth revised edition of the UN Model Regulations. Therefore, except for wheelchairs powered by lithium ion batteries, we are not adopting new provisions pertaining to the transportation of lithium cells and batteries in this rulemaking. The docket for the lithium battery rulemaking can be found elsewhere at http://www.regulations.gov under PHMSA-2009-0095. We note that a number of commenters objected to our inclusion of limitations on the stowage of lithium batteries in § 175.75 of the HMR and strongly urged that the limitations be removed from this rulemaking and addressed in a separate lithium battery rulemaking such as HM-224F. We agree. All reference to lithium batteries in our revisions to § 175.75 are removed from this rulemaking. 3. Requirements for Air Packaging We are not adopting provisions pertaining to certain packagings offered for transportation by aircraft under this rulemaking. PHMSA is considering certain amendments to the HMR related to requirements for the packaging of hazardous materials intended for transportation by aircraft under a separate docket (HM-231A). These would include amendments based on the reformatted packing instructions in the 2011-2012 ICAO Technical Instructions. PHMSA published an ANPRM (73 FR 38361, July 7, 2008) and an NPRM (75 FR 27273, May 14, 2010) related to combination packaging standards offered in air transportation. See http://www.regulations.gov under PHMSA-2007-29364 for more information. IV. Section-by-Section Review Following is a section-by-section review of the amendments in this final rule: Part 171 Section 171.7 The “National Technology Transfer and Advancement Act of 1996” directs agencies to use voluntary consensus standards. According to the Office of Management and Budget (OMB) Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” government agencies must use voluntary consensus standards wherever practical in the development of regulations. Agency adoption of industry standards promotes productivity and efficiency in government and industry, expands opportunities for international trade, conserves resources, improves health and safety, and protects the environment. To these ends, PHMSA actively participates in the development and updating of consensus standards through representation on more than 20 consensus standard bodies. PHMSA regularly reviews updated consensus standards and considers their merit for inclusion in the HMR. Section 171.7 lists all materials incorporated by reference (IBR materials) into the HMR. For this rulemaking, we evaluated updated international consensus standards and regulations pertaining to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements and determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These materials have a well-established and documented safety history. Their adoption maintains the high safety standard currently achieved under the HMR. Some commenters (IATA, PRBA, Saft) indicated concern that the fifth revised edition of the UN Recommendations on the Transportation of Dangerous Goods, Manual of Tests and Criteria (UN Manual) was not included among the IBR materials to be updated and suggest that PHMSA include the document. We agree. PHMSA proposed to incorporate by reference the fifth revised edition of the UN Manual under docket HM-224F published January 11, 2010 (75 FR 1302) because the revised version of the manual contained updated tests for lithium cells and batteries. However, that rulemaking will have an effective date later than this final rule. This rule contains provisions regarding new test requirements for other materials ( e.g., explosives) that are found in the updated edition of the UN Manual making it necessary for us to incorporate by reference the fifth edition. Therefore, we are including the updated fifth revised edition of the UN Manual and updating the IBR materials referenced in the HMR by adding and revising material under the following organizations: • The American Society for Testing and Materials (ASTM) ○ ASTM D56-05, Standard Test Method for Flash Point by Tag Closed Tester (Referenced in § 173.120(c)(1)(i)(A); Added to § 171.7). ○ ASTM D86-07a, Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure (Referenced in § 173.121; Added to § 171.7). ○ ASTM D93-08, Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester (Referenced in § 173.120(c)(1)(ii)(A); Added to § 171.7). ○ ASTM D1078-05, Standard Test Method for Distillation Range of Volatile Organic Liquids (Referenced in § 173.121; Added to § 171.7). ○ ASTM D3278-96(2004)e1, Standard Test Methods for Flash Point of Liquids by Small Scale Closed-Cup Apparatus (Referenced in §§ 173.120(c)(1)(i)(B) and 173.120(c)(1)(ii)(B); Added to § 171.7). ○ ASTM D3828-07a, Standard Test Methods for Flash Point by Small Scale Closed cup Tester (Referenced in § 173.120(c)(1)(i)(C); Added to § 171.7). • The International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2009-2010 Edition is revised to incorporate 2011-2012 Edition. • The International Convention for the Safety of Life at Sea, 1974, as amended (SOLAS) Amendments 2002, Chapter II-2/Regulation 19, Consolidated Edition 2004 is revised to incorporate the 2009 Edition. • The International Maritime Organization (IMO) International Maritime Dangerous Goods Code, 2008 Edition, Incorporating Amendment 34-08, English Edition, Volumes 1 and 2 is revised to incorporate Amendment 35-10. • The International Organization for Standardization (ISO) ○ ISO 1516:2002(E), Determination of flash/no flash—Closed cup equilibrium method (Referenced in § 173.120; Added to § 171.7). ○ ISO 1523:2002(E), Determination of flash point—Closed cup equilibrium method (Referenced in § 173.120; Added to § 171.7). ○ ISO 2592:1973(E), Petroleum products—Determination of flash and fire points—Cleveland open cup method (Revised to incorporate the 2000 Edition). ○ ISO 2719:2002(E), Determination of flash point—Pensky-Martens closed cup method (Referenced in § 173.120; Added to § 171.7). ○ ISO 3405:2000(E), Petroleum products—Determination of distillation characteristics at atmospheric pressure (Referenced in § 173.121; Added to § 171.7). ○ ISO 3679:2004(E), Determination of flash point—Rapid equilibrium closed cup method (Referenced in § 173.120; Added to § 171.7). ○ ISO 3680:2004(E), Determination of flash/no flash—Rapid equilibrium closed cup method (Referenced in § 173.120; Added to § 171.7). ○ ISO 3924:1999(E), Petroleum products—Determination of boiling range distribution—Gas chromatography method (Referenced in § 173.121; Added to § 171.7). ○ ISO 4626:1980(E), Volatile organic liquids—Determination of boiling range of organic solvents used as raw materials (Referenced in § 173.121; Added to § 171.7). ○ ISO 4706:2008(E), Gas cylinders—Refillable welded steel cylinders—Test pressure 60 bar and below (Referenced in § 178.71; Added to § 171.7). ○ ISO 10297:1999, Gas cylinders—Refillable gas cylinder valves—Specification and type testing, First edition, May 1999, (E) (Revised to incorporate 2006 Edition). ○ ISO 10461:2005, Gas cylinders—Seamless aluminum-alloy gas cylinders, Periodic inspection and testing, Second edition, February 2005, (E) (Revised to incorporate Amendment 1 (2006)). ○ ISO 10692-2:2001(E), Gas cylinders—Gas cylinder valve connections for use in the micro-electronics industry—Part 2: Specification and type testing for valve to cylinder connections (Referenced in § 173.40; Added to § 171.7). ○ ISO 13736:2008(E), Determination of flash point—Abel closed-cup method (Referenced in § 173.120; Added to § 171.7). ○ ISO 16111:2008(E), Transportable gas storage devices—Hydrogen absorbed in reversible metal hydride (Referenced in §§ 173.311 and 178.71; Added to § 171.7). ○ ISO 18172-1:2007(E), Gas cylinders—Refillable welded stainless steel cylinders—Part 1: Test pressure 6 MPa and below (Referenced in § 178.71; Added to § 171.7). ○ ISO 20703:2006(E), Gas cylinders—Refillable welded aluminum-alloy cylinders—Design, construction and testing (Referenced in § 178.71; Added to § 171.7). • Organization for Economic Cooperation and Development (OECD) ○ Guidelines for the Testing of Chemicals, Test Guideline 404, Acute Dermal Irritation/Corrosion (1992) (Revised to incorporate 2002 edition). ○ Guidelines for the Testing of Chemicals, Test Guideline 430, In Vitro Skin Corrosion: Transcutaneous Electrical Resistance Test (TER) (2004) (Referenced in § 173.137; Added to § 171.7). ○ Guidelines for the Testing of Chemicals, Test Guideline 431, In Vitro Skin Corrosion: Human Skin Model Test (2004) (Referenced in § 173.137; Added to § 171.7). ○ Guidelines for the Testing of Chemicals, Test Guideline 435, In Vitro Membrane Barrier Test Method for Skin Corrosion (2006) (Referenced in § 173.137; Added to § 171.7). • Transport Canada, Transportation of Dangerous Goods Regulations, including Clear Language Amendments 1 through 5 (Revised to add SOR/2008-34 (Amendment 6; February 7, 2008) in its entirety and SOR/2007-179 (Amendment 7; July 31, 2007)). • The United Nations Recommendations on the Transport of Dangerous Goods, Model Regulations, fifteenth revised edition (2007), Volumes I and II (Revised to incorporate the sixteenth revised edition). • The United Nations Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, fourth revised edition, (2003), and Addendum 2 (2004). (Revised to incorporate the fifth revised edition). Section 171.8 This section defines terms generally used throughout the HMR that have broad or multi-modal applicability. We received no comments regarding our proposed adoption of new definitions. Therefore, in this final rule PHMSA is adding the following defined terms based on their adoption in the UN Model Regulations: Metal hydride storage system. This term means a single complete hydrogen storage system that includes a receptacle, metal hydride, pressure relief device, shut-off valve, service equipment and internal components used for the transportation of hydrogen only. Open cryogenic receptacle. This term means a transportable thermally insulated receptacle for refrigerated liquefied gases maintained at atmospheric pressure by continuous venting of the refrigerated gas. Additionally, we proposed to revise the definition of Oxidizing gas to specify that an oxidizing gas is a pure gas or gas mixture with an oxidizing power greater than 23.5% as determined by a method specified in ISO 10156:1996 or 10156-2:2005. See also Sections 172.101 and 173.115, for discussion of changes to the “Compressed gas, n.o.s., UN1956.” HMT entry and definition, respectively. We received no comments on the revised definition. Therefore, in this final rule we are adopting the revision as proposed. Section 171.23 Section 171.23 prescribes the conditional requirements for specific materials and packages transported under the various international standards as permitted by the HMR. In this final rule we are removing the § 171.23(b)(9) requirement that stipulates Division 6.1 poisonous materials transported as limited quantities are not excepted from labeling. This change aligns the labeling requirements in the HMR for limited quantities with the international standards without compromising safety. Section 171.25 Section 171.25 prescribes the additional requirements for specific materials and packages transported under the IMDG Code as permitted by the HMR. In this final rule, we are deleting paragraphs (c)(5) and (d)(3). Paragraphs (c)(5) and (d)(3) required portable tanks, cargo tanks, and tank cars containing cryogenic liquids transported by vessel to be stowed on deck regardless of the stowage requirements authorized under the IMDG Code. The IMDG Code now requires this same stowage for certain packagings containing cryogenic materials aboard a vessel, thus, paragraphs (c)(5) and (d)(3) are no longer necessary. Effective January 1, 1997, vehicles and mechanical equipment containing internal combustion engines were no longer subject to the IMDG Code as conditionally designated under Amendment 28-96. Effective January 1, 2012, such articles will once again be subject to the IMDG Code under Amendment 35-10. Because the new requirements in the IMDG Code are more stringent than requirements for similar material in the HMR, PHMSA is amending § 171.25 by revising paragraph (b)(1) and adding a new paragraph (b)(4) permitting use of the IMDG Code or the HMR to prepare and stow vehicles and mechanical equipment containing internal combustion engines when offered for transport by vessel. Part 172 Section 172.101 Introductory text to the § 172.101 HMT contains explanatory text for each of the columns that comprise the HMT. Currently, § 172.101(c)(10) provides specific requirements regarding the selection of an appropriate proper shipping name for mixtures and solutions containing more than one hazardous material of the same hazard class. In many cases, such mixtures and solutions are best described by a generic or “not otherwise specified” entry ( i.e., an “n.o.s.” entry). For example, a solution containing two or more flammable liquid constituents may best be described under the entry “Flammable liquids, n.o.s., UN1993.” However, in some cases where two or more hazardous materials are present, a single hazardous material may predominate where the other hazardous materials may be present in only trace amounts. In such cases, a description applicable to the predominant material may be more appropriate. A recent incident underscores the importance of using the most specific and appropriate shipping description. In that incident, an aluminum cylinder containing 99.9% pure ethyl chloride ruptured in storage incidental to transport. It was determined that the root cause was a reaction between the cylinder's contents and the aluminum. The relevant construction standard for the cylinder indicated that ethyl chloride was reactive with aluminum and that aluminum was not recommended for the transport of ethyl chloride. However, the shipper selected a generic compressed gas shipping description rather than the ethyl chloride name due to the presence of trace amounts of other hazardous materials. While we note that the general requirements for packagings still broadly address the responsibility of the shipper in selecting a packaging that is compatible with its lading, and that these requirements were also applicable and apparently overlooked, the incident nonetheless highlights the benefit of using a more specific description, where appropriate, to help ensure that the most appropriate transport provisions are followed. To address this issue, the UN Model Regulations were amended to require, except as otherwise specified, that a mixture or solution of a single predominant hazardous material containing only traces of one or more additional hazardous materials listed by name in the HMT or additional non-hazardous constituents be assigned the UN number and proper shipping name of the predominant material contributing to the overall hazard classification of the mixture or solution. Adopting a similar provision in the HMR will enhance a shipper's ability to select the most appropriate shipping description. In the NPRM, PHMSA proposed to add a new paragraph, § 172.101(c)(10)(iv), outlining the authorization to describe the mixture or solution based on the predominant material contributing to the hazard classification. One commenter (DOE) suggested that we remove the reference to non-hazardous material in § 172.101(c)(10)(iv) because the mixture of hazardous material and non-hazardous material is already addressed in § 172.101(c)(10)(i). Additionally, the commenter asked for clarification of instances when the provision should be used and asked to define the meaning of “trace amounts.” We agree. It is correct that § 172.101(c)(10)(i) already addresses a mixture or solution of a hazardous material and non-hazardous material. The provision pertains to a mixture or solution containing non-hazardous material in such quantities that it does not alter the physical state or purity of the hazardous material it is mixed with, as well as either the hazard classification, packing group, subsidiary hazard, or emergency response procedures. The intent of new paragraph § 172.101(c)(10)(iv) is to provide instruction for selecting the most appropriate proper shipping name for a mixture or solution of a hazardous material and traces of one or more other hazardous materials, one or more non-hazardous materials, or both. Where such a mixture or solution occurs that the trace amount of material does not affect the classification, the material must be described using the most appropriate proper shipping name for the predominant hazardous material. Based on the comment received and reconsideration of our proposal, we are instead revising paragraph (c)(10)(i) to provide clarification on properly describing a material that is a mixture or solution of a predominant hazardous material and trace amounts of hazardous or non-hazardous material, or both; rather than add a new paragraph (c)(10)(iv). The six conditions in § 172.101(c)(10)(i) that currently limit a mixture or solution of hazardous material with a non-hazardous material from being described using the proper shipping name of the hazardous material would also apply to a mixture or solution of a single predominant hazardous material and trace amounts of other hazardous or non-hazardous materials or both. With regard to instances when the provision would be used, we would expect it to be applied in cases of mixtures or solutions of a hazardous material that contain small amounts of preservatives or are contaminated with trace amounts of hazardous material in such a way that the “trace amounts” do not affect the packaging, the hazard class, the packing group, etc of the hazardous material. As for defining “trace amounts” we do not specifically define this term because determination of when an amount of material affects the hazard classification is highly variable depending on the physical and chemical properties of the materials involved and the quantities of material involved. Therefore, in this final rule, we are revising § 172.101(c)(10)(i) to provide instruction on properly describing a material that is a mixture or solution of a predominant hazardous material and trace amounts of hazardous or non-hazardous material, or both. Paragraph (e) of § 172.101 provides explanations for the letters that precede identification numbers assigned to proper shipping names in the HMT. In this final rule, PHMSA is adding an explanation for identification numbers associated with certain descriptions under the ICAO Technical Instructions and are preceded by the letters “ID.” Additionally, PHMSA is authorizing use of the international air description, “ID8000, Consumer commodity, 9” in the HMT with material and article eligibility for use of the description based on Special provision A112 and Packing Instruction Y963 of the 2011-2012 ICAO Technical Instructions. Hazardous Materials Table (HMT) In this final rule, PHMSA is making various amendments to the HMT. Readers should review all changes for a complete understanding of the amendments. For purposes of the Government Printing Office's typesetting procedures, changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, appear as a “remove” and “add.” Amendments to the HMT include the following: New HMT entries UN3482 Alkali metal dispersions, flammable or Alkaline earth metal dispersions, flammable. UN3496 Batteries, nickel-metal hydride. This new HMT entry for UN3496 includes a W in Column (1) to indicate use of this hazardous materials description is limited to vessel transport of these materials. Two commenters (Saft, PRBA) indicated concern with our proposed assignment of Special Provision 130 (for transportation of dry batteries— i.e., “Batteries, dry, sealed, n.o.s.”) to this entry and the potential for confusion leading to use of this entry for modes other than vessel. We agree. To help clarify the use of this entry, we have included additional language in Column (2) to refer shippers transporting nickel-metal hydride batteries by modes other than vessel to the HMT entry “Batteries, dry, sealed, n.o.s.” for instruction on the transport requirements for nickel-metal hydride batteries. Additionally, we have revised Special Provision 130 to make clear that for other than nickel-metal hydride batteries transported by vessel subject to Special Provision 340, dry batteries must be transported in accordance with Special Provision 130. UN3485 Calcium hypochlorite, dry, corrosive or Calcium hypochlorite mixtures, dry, corrosive with more than 39% available chlorine (8.8% available oxygen). UN3487 Calcium hypochlorite, hydrated, corrosive or Calcium hypochlorite, hydrated mixture, corrosive with not less than 5.5% but not more than 16% water. UN3486 Calcium hypochlorite mixture, dry, corrosive with more than 10% but not more than 39% available chlorine. ID8000 Consumer commodity. This shipping description is added to the HMT as a Class 9 miscellaneous hazardous material to be used for the air transportation of limited quantities of certain hazardous materials of Class 2 (non-toxic aerosols only), Class 3 (PG II and III only), Division 6.1 (PG III only), and of UN identification numbers UN3077, UN3082, and UN3175, provided such materials do not have a subsidiary risk and are authorized aboard a passenger-carrying aircraft. This amendment is based on changes incorporated into the 2011-2012 ICAO TI. UN3484 Hydrazine aqueous solution, flammable with more than 37% hydrazine, by mass . UN3495 Iodine. Iodine is transported globally under a number of different shipping descriptions dependent on the shipper. In the interest of reducing risks associated with transport of iodine under various descriptions and therefore, various packaging, we are adding this unique UN identification number and shipping description to provide for specific packaging requirements and faster identification and access to emergency response information. UN1471 Lithium hypochlorite, dry or Lithium hypochlorite mixture, Division 5.1, PG III. Lithium hypochlorite is a common commercial product used as a disinfectant that is often mixed with other non-hazardous organic salts. Currently, the HMT only provides for a Division 5.1, PG II designation for this material, yet testing conducted in accordance with the UN Manual of Tests and Criteria has indicated that some common commercial mixtures meet the criteria for classification in Division 5.1, PG III. Therefore, PHMSA is adding a line to the current entry to allow for classification of lithium hypochlorite and mixtures of lithium hypochlorite in PG III, where appropriate. One commenter (FMC) noted that the addition of the proposed PG III entry for the “Lithium hypochlorite, UN1471” shipping description retains the italicized text “with more than 39% available chlorine (8.8% available oxygen)” as well as the word “dry” for lithium hypochlorite mixtures and that this is not consistent with the hazardous materials description in the dangerous goods list in the UN Model Regulations, the ICAO Technical Instructions, and the soon to be adopted IMDG Code. FMC requested that PHMSA revise the entry by deleting the qualifying text as well as the word “dry” to be consistent with international standards and regulations and to provide shippers with the most appropriate shipping description for the transport of lithium hypochlorite materials. Additionally, FMC stated: [M]ore fundamental and practical problems will arise if this qualifying text is retained in the HMR entry for UN1471. Some of the commercial lithium hypochlorite products shipped domestically and internationally by FMC have less than 39% available chlorine (8.8% available oxygen), and so would not be properly described by the entry as it is proposed to be modified. [T]hese products nevertheless meet the criteria for classification in Division 5.1, Packing Group II or III. Consequently, under the HMR, FMC must describe these products by an appropriate entry in the HMT associated with the correct class and packing group, namely “Hypochlorites, inorganic, n.o.s.” (UN3212) if the product meets Packing Group II criteria, or, since UN3212 does not provide a Packing Group III option, “Oxidizing solid, n.o.s.” (UN1479) if the product meets the criteria for assignment to Packing Group III. Thus, for road and rail transport within the United States FMC's lithium hypochlorite products would have to be described by one of three different entries. We agree. Removing the italicized text would facilitate a uniform process of describing lithium hypochlorite materials for transport purposes without reducing the safety of transport when using this description in lieu the descriptions discussed in the comment by FMC. Additionally, we are making a conforming amendment (with the IMDG Code) to the PG II entry for UN1471 to assign special provisions T3 and TP33 applicable to a portable tank when used to transport this material. T3 outlines the minimum test pressure, minimum shell thickness, bottom opening requirements, and pressure relief requirements in addition to the design and constructions requirements for the portable tank. TP33 outlines provisions for transport of granular or powdered solids. Therefore, in this final rule, we are adopting the PG III entry for “Lithium hypochlorite, UN1471” without the italicized text and the word “dry,” as well as making a conforming revision to the shipping description for the PG II entry already in the HMT to read, “Lithium hypochlorite, dry or Lithium hypochlorite mixtures, UN1471.” UN3483 Motor fuel anti-knock mixture, flammable. UN3494 Petroleum sour crude oil, flammable, toxic (this entry is identified in the HMT as appropriate for international transportation under § 172.101(b)(5)). UN3492 Toxic-by-inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m 3 and saturated vapor concentration greater than or equal to 500 LC 50 . UN3493 Toxic-by-inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m 3 and saturated vapor concentration greater than or equal to 10 LC 50 . UN3488 Toxic-by-inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m 3 and saturated vapor concentration greater than or equal to 500 LC 50 . UN3489 Toxic-by-inhalation liquid, flammable, corrosive, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m 3 and saturated vapor concentration greater than or equal to 10 LC 50 . UN3490 Toxic-by-inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m 3 and saturated vapor concentration greater than or equal to 500 LC 50 . UN3491 Toxic-by-inhalation liquid, water-reactive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 1000 ml/m 3 and saturated vapor concentration greater than or equal to 10 LC 50 . Based on a recommendation by a commenter (PPG), we note that two new entries for toxic-by-inhalation (TIH) material ( i.e. , UN3492 and UN3493) added in the sixteenth revised edition of the UN Model Regulations and in this final rule will likely be removed from the dangerous goods table in the seventeenth revised edition of the UN Model Regulations. Shippers who choose to use these new descriptions on shipping papers and markings on boxes may incur additional costs when having to change the material descriptions again should the descriptions be removed from the UN Model Regulations and subsequently, the HMR. Additionally, because of the addition of generic TIH descriptions for toxic, flammable, corrosive material ( i.e. , UN 3488, UN3499), PPG believes the domestic entries for “sec-Butyl chloroformate, NA2742” and “Isobutyl chloroformate, NA2742” are obsolete and recommended that these materials be described using the generic TIH descriptions for consistent hazard communication of these materials between modes of transportation. We agree. Therefore, in this final rule, as a conforming amendment to the addition of the generic TIH entries, we are deleting the domestic use entries “sec-Butyl chloroformate, NA2742” and “Isobutyl chloroformate, NA2742” from the HMT. Amendments to the Column (1) Symbols The entries “Elevated temperature liquid, flammable, n.o.s., with flash point above 37.8 °C, at or above its flash point, UN3256,” “Elevated temperature liquid, n.o.s., at or above 100 °C and below its flash point (including molten metals, molten salts, etc.), UN3257,” and “Elevated temperature solid, n.o.s., at or above 240 °C, UN3258” are revised by adding the symbol G. The symbol G identifies proper shipping names for which a technical name of the hazardous material is required in parentheses in association with the basic description. Requiring the technical name(s) for certain elevated temperatures materials will help emergency responders in selecting the proper materials for extinguishing a fire involving these hazardous materials and will aid in estimating the temperature properties of the materials ( e.g., the melting point). The entries “Metal catalyst, dry, UN2881” and “Metal catalyst, wetted with a visible excess of liquid, UN1378” are revised by adding the symbol G. The symbol G identifies proper shipping names for which a technical name of the hazardous material is required in parentheses in association with the basic description. Requiring the technical name(s) for metal catalysts will aid emergency responders in selecting the proper fire suppressant ( e.g., CO 2 ) if the hazardous material is involved in a fire or in identifying other materials the metal catalyst could react with. The entry “Powder, smokeless, UN0509,” is revised by deleting the symbol D. The symbol D identifies a proper shipping name for domestic use only. This entry has been adopted into the UN Model Regulations, the ICAO TI, and the IMDG Code. This deletion is consistent with our final rule published under Docket HM-215J (74 FR 2200, January 14, 2009) in which we indicated our intent to remove the symbol D in a future rulemaking upon adoption of the entry into international regulations. For the following Division 5.1 (oxidizer) materials and Division 6.1 (toxic) materials, the entries are revised by adding the symbol G. The symbol G identifies proper shipping names for which one or more technical names of the hazardous material must be entered in parentheses in association with the basic description on a shipping paper. Knowledge of the technical name of toxic materials may aid emergency responders with implementing more appropriate first aid measures: UN3141 Antimony compounds, inorganic, liquid, n.o.s. UN1549 Antimony compounds, inorganic, solid, n.o.s. UN1556 Arsenic compounds, liquid, n.o.s. inorganic, including arsenates, n.o.s.; arsenites, n.o.s.; arsenic sulfides, n.o.s.; and organic compounds of arsenic, n.o.s. UN1557 Arsenic compounds, solid, n.o.s. inorganic, including arsenates, n.o.s.; arsenites, n.o.s.; arsenic sulfides, n.o.s.; and organic compounds of arsenic, n.o.s. UN1564 Barium compounds, n.o.s. UN1566 Beryllium compounds, n.o.s. UN3213 Bromates, inorganic, aqueous solution, n.o.s. UN1450 Bromates, inorganic, n.o.s. UN2570 Cadmium compounds. UN3210 Chlorates, inorganic, aqueous solution, n.o.s. UN1461 Chlorates, inorganic, n.o.s. UN1462 Chlorites, inorganic, n.o.s. UN1583 Chloropicrin mixtures, n.o.s. UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s. UN3361 Chlorosilanes, toxic, corrosive, n.o.s. UN1935 Cyanide solutions, n.o.s. UN2856 Fluorosilicates, n.o.s. UN3212 Hypochlorites, inorganic, n.o.s. UN2291 Lead compounds, soluble, n.o.s. UN2024 Mercury compounds, liquid, n.o.s. UN2025 Mercury compounds, solid, n.o.s. UN3144 Nicotine compounds, liquid, n.o.s. or Nicotine preparations, liquid, n.o.s. UN1665 Nicotine compounds, solid, n.o.s. or Nicotine preparations, solid, n.o.s. UN3219 Nitrites, inorganic, aqueous solution, n.o.s. UN2627 Nitrites, inorganic, n.o.s. UN3214 Permanganates, inorganic, aqueous solution, n.o.s. UN1482 Permanganates, inorganic, n.o.s. UN2026 Phenylmercuric compounds, n.o.s. UN2630 Selenates or Selenites. UN3440 Selenium compound, liquid, n.o.s. UN3283 Selenium compound, solid, n.o.s. UN3284 Tellurium compound, solid, n.o.s. UN3285 Vanadium compound, solid, n.o.s. Amendments to the Column (2) Hazardous Materials Descriptions and Proper Shipping Names The proper shipping name for the entry “Detonator, assemblies, non-electric, for blasting, UN0500,” is revised by removing the comma after “Detonator” to read “Detonator assemblies, non-electric, for blasting.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “Engines, internal combustion, flammable gas powered, UN3166,” is revised to read “Engines, internal combustion or Engines, fuel cell, flammable gas powered.” This revision appears as a “Remove/Add” in this rulemaking. One commenter (IATA) suggests that we revise this proper shipping name to the singular “engine” in alignment with use of the singular form for the entries in the UN Model Regulations. We disagree. As indicated by the commenter, § 172.101(c)(1) authorizes use of proper shipping names in the singular or plural form. Therefore, we believe it is not necessary to revise the proper shipping name to the singular “engine” when the shipper is authorized to modify the proper shipping name between singular and plural forms. The proper shipping name for the entry “Engines, internal combustion, flammable liquid powered, UN3166,” is revised to read “Engines, internal combustion or Engines, fuel cell, flammable liquid powered.” This revision appears as a “Remove/Add” in this rulemaking. One commenter (IATA) suggests that we revise this proper shipping name to the singular “engine” in alignment with use of the singular form for the entries in the UN Model Regulations. We disagree. As indicated by the commenter, § 172.101(c)(1) authorizes use of proper shipping names in the singular or plural form. Therefore, we believe it is not necessary to revise the proper shipping name to the singular “engine.” The proper shipping names “Formaldehyde, solutions, flammable, UN1198” and “Formaldehyde, solutions, with not less than 25 percent formaldehyde, UN2209” are revised to remove an errant comma between the words “Formaldehyde” and “solutions.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “1-Hydroxybenzotriazole, anhydrous, wetted with not less than 20 percent water, by mass, UN3474” is revised to read “1-Hydroxybenzotriazole, monohydrate.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the PG II entry for Lithium hypochlorite, dry with more than 39% available chlorine (8.8% available oxygen) or Lithium hypochlorite mixture, dry with more than 39% available chlorine (8.8% available oxygen), UN1471” is revised to read “Lithium hypochlorite, dry or Lithium hypochlorite mixture” to conform with the addition of the new PG III entry and international use of this proper shipping name. This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “Nitric acid other than red fuming, with less than 65 percent nitric acid, UN2031” is revised to read “Nitric acid other than red fuming, with more than 20 percent and less than 65 percent nitric acid, UN2031.” The proper shipping name for the Packing Group I entry “Nitric acid other than red fuming, with more than 70 percent nitric acid, UN2031” is added to the HMT. In a final rule published on January 14, 2009 (HM-215J; 74 FR 2200), errors were made to both nitric acid entries and in this final rule, PHMSA aligns them correctly in accordance with the various international standards. Additionally, we are removing the outdated Packing Group II entry “Nitric acid other than red fuming, with not more than 70 percent nitric acid, UN2031” that should have been removed from the HMT in the same final rule. The proper shipping name for the entry “Tars, liquid including road asphalt and oils, bitumen and cut backs, UN1999” is revised to read “Tars, liquid including road oils and cutback bitumens.” The entries in the HMT applicable to transport of bitumen may cause confusion with respect to the proper classification of the material. The entries include “Combustible liquid, n.o.s., NA1993, combustible liquid” and “Tars, liquid including road asphalt and oils, bitumen and cut backs, UN1999, 3,” and the entries “Elevated temperature liquid, flammable, n.o.s., UN3256, 3” and “Elevated temperature liquid, n.o.s., UN3257, 9,” when the material is heated and offered for transport. Bitumen is a hydrocarbon material derived from crude oil having a flashpoint of 160 °C or greater. Bitumens typically do not meet the classification for a Class 3 flammable liquid except for cutback bitumens which are blended with a flammable material such as kerosene. Also, road asphalt is bitumen mixed with sand and fillers which also does not meet the classification for a Class 3 flammable liquid. Therefore, we are revising the proper shipping name “Tars, liquid including road asphalt and oils, bitumen and cut backs” by removing reference to asphalt and clarifying applicability to cutback bitumens to read “Tars, liquid including road oils and cutback bitumens.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “Trinitro-meta-cresol, UN0216” is revised to read “Trinitro-m-cresol.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “Vehicle, flammable gas powered, UN3166,” is revised to read “Vehicle, flammable gas powered or Vehicle, fuel cell, flammable gas powered.” This revision appears as a “Remove/Add” in this rulemaking. The proper shipping name for the entry “Vehicle, flammable liquid powered, UN3166,” is revised to read “Vehicle, flammable liquid powered or Vehicle, fuel cell, flammable liquid powered.” This revision appears as a “Remove/Add” in this rulemaking. Amendments to the Column (3) Hazard Class or Division PHMSA is revising the classification of a number of entries to Division 6.1 poisonous primary hazards for consistency with the adoption of classification changes into the sixteenth revised edition of the UN Model Regulations. The changes are based on data provided from a thorough review of literature on toxic-by-inhalation materials. The review of literature is provided in Informal Document UN/SCETDG/33/INF.8 submitted to the 33rd session of the UN Sub-Committee of Experts on the Transport of Dangerous Goods which is available at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf33.html . For the entry “Tetranitromethane, UN1510,” the Class 5 (oxidizer) material's primary hazard is revised to a Division 6.1 (poisonous) material primary hazard. For the following Class 3 (flammable liquid) materials, the Class 3 primary hazard is revised to a Division 6.1 (poisonous) material primary hazard. UN2481 Ethyl isocyanate. UN2486 Isobutyl isocyanate. UN2483 Isopropyl isocyanate. UN3079 Methacrylonitrile, stabilized. UN2605 Methoxymethyl isocyanate. For the following Class 8 (corrosive) materials, the Class 8 primary hazard is revised to a Division 6.1 (poisonous) material primary hazard. UN1810 Phosphorous oxychloride. UN1834 Sulfur chloride. UN1838 Titanium tetrachloride. Amendments to the Column (5) Packing Group (PG) The entry “Carbon dioxide, solid or Dry ice, UN1845” is revised by deleting the PG III designation. In general, the PG assigned to a material identifies the degree of hazard the material represents and determines the performance level of the packaging required for the material. For example, a PG II material ( i.e., a moderate hazard material) is considered more hazardous and requires more stringent packaging than a PG III material ( i.e., a low hazard material). Dry ice presents minimal risk during transport except where concentrations may build up in a confined space. Therefore, in this final rule, PHMSA is deleting the PG III designation from the entry. For the following Division 6.1 poisonous materials, the PG is revised to read PG I. UN2668 Chloroacetonitrile. UN1810 Phosphorous oxychloride. UN2474 Thiophosgene. UN1838 Titanium tetrachloride. PHMSA is making this revision to the PG assignment for these entries for consistency with the adoption of changes into the sixteenth revised edition of the UN Model Regulations. The changes are based on data provided from a thorough review of literature on toxic-by-inhalation materials. The review of literature is provided in Informal Document UN/SCETDG/33/INF.8 submitted to the 33rd session of the UN Sub-Committee of Experts on the Transport of Dangerous Goods which is available at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf33.html . Amendments to the Column (6) Label(s) For the following hazardous material entries, PHMSA is revising the label requirements for consistency with changes made to the classification of these materials under amendments to Column (3) ( see above). The Class 3 (flammable liquid), Class 8 (corrosive), or Division 5.1 (oxidizer) primary hazard labels, as appropriate, and the Division 6.1 (poisonous) subsidiary hazard label are revised to a Division 6.1 (poisonous) material primary hazard label and Class 3, Class 8, or Division 5.1 subsidiary hazard label to read “6.1, 3,” “6.1, 8,” or “6.1, 5.1,” as appropriate. UN2481 Ethyl isocyanate. UN2486 Isobutyl isocyanate. UN2483 Isopropyl isocyanate. UN3079 Methacrylonitrile, stabilized. UN2605 Methoxymethyl isocyanate. UN1810 Phosphorous oxychloride. UN1834 Sulfur chloride. UN1838 Titanium tetrachloride. The entry “Chlorosilanes, toxic, corrosive, flammable, n.o.s., UN3362” is revised by correctly ordering the sequence of labeling hazards to reflect the proper shipping name to read “6.1, 8, 3.” Amendments to the Column (7) Special Provisions The entry “Chloropicrin, UN1580” is revised by replacing the portable tank instruction T Code T14 with T22. The UN Committee of Experts on the Transport of Dangerous Goods revised the T Code assignment for a number of Division 6.1 (toxic-by-inhalation) materials from T14 to T22. Assigning T22 requires a higher pressure for the periodic hydrostatic test (6 bar to 10 bar) and a thicker minimum shell thickness (6 mm to 10 mm). Therefore, for consistency with revisions made to the T Code assignments under the sixteenth revised edition of the UN Model Regulations, we are revising the T Code to read T22. The entry “Compressed gas, n.o.s., UN1956” is revised by deleting special provision 77 which authorizes the use of this entry for mixtures of gases with less than 23.5% oxygen when no other oxidizing gases are present. Because we are modifying the definition of oxidizing gas in § 171.8 of the HMR to indicate that “a gas which may, by providing oxygen, cause or contribute to the combustion of other material more than air does means pure gases or gas mixtures with an oxidizing power greater than 23.5% oxygen” and because the entry “Compressed gas, oxidizing, n.o.s., UN3156” is currently available in the HMT, the special provision is redundant and no longer necessary. The entry “Environmentally hazardous substance, solid, UN3077” is revised by adding new special provision A112 authorizing the transportation of certain IBCs containing this material up to a maximum net quantity of 1,000 kg by passenger or cargo-only aircraft. The entry “Ethylene oxide or Ethylene oxide with nitrogen up to a total pressure of 1 MPa (10 bar) at 50 degrees C, UN1040 is revised by deleting special provision A59 and adding new special provision 342. The provisions in A59 applied only to air transport but they now apply to all modes under new Special provision 342. See Section 172.102 special provisions for a discussion of new special provision 342. The entry “1-Hydroxybenzotriazole, monohydrate, UN3474” is revised by deleting special provision 162. Special provision 162 requires that for the material to be transported as a Division 4.1 desensitized material, it must be transported in such a manner that at no time during the course of transportation does the percentage concentration of water fall below 20%. Anhydrous hydroxybenzotriazole rapidly converts to the monohydrate form in the presence of water, that is, the thermally stable form of the substance. Additionally, tests have indicated that the monohydrate maintains its wate [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-33324. Public record. Not legal advice.