Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 175, 176, and 178

[Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J)]

RIN 2137-AE31

Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions

AGENCY:

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

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

PHMSA proposes to amend 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 quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes 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.

The proposals include amendments and clarifications addressing the safe transportation of batteries and battery-powered devices. Consistent with recent changes to the International Civil Aviation Organization's Technical Instructions, PHMSA is proposing to clarify the prohibition against transporting electrical devices, including batteries and battery-powered devices that are likely to create sparks or generate a dangerous amount of heat. PHMSA also is proposing to modify and enhance requirements for the packaging and handling of batteries and battery-powered devices, particularly in air commerce, to emphasize the safety precautions that are necessary to prevent incidents during transportation. PHMSA developed these proposals in conjunction with the Federal Aviation Administration in order to enhance the safe transportation of batteries and battery-powered devices.

DATES:

Comments must be received by September 29, 2008.

ADDRESSES:

You may submit comments by any of the following methods:

•

Federal Rulemaking Portal: http://www.regulations.gov

. Follow the on-line instructions for submitting comments.

•

Fax:

1-202-493-2251.

•

Mail:

Docket Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

•

Hand Delivery:

To U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

Instructions:

Include the agency name and docket number PHMSA-2008-0005 (HM-215J) or RIN 2137-AE31 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to

http://www.regulations.gov

including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard.

Privacy Act:

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (65 FR 19477), or you may visit

http://www.regulations.gov

.

Docket:

You may view the public docket through the Internet at

http://www.regulations.gov

or in person at the Docket Operations office at the above address (See

ADDRESSES

).

FOR FURTHER INFORMATION CONTACT:

T. Glenn Foster or Charles Betts, Office of Hazardous Materials Standards, telephone (202) 366-8553, or Shane Kelley, International Standards, telephone (202) 366-0656, 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. Transportation of Batteries and Battery-Powered Devices

A. Current Regulatory Requirements

B. Accident/Incident History

C. Recent Actions To Enhance Battery Safety

D. Proposals To Enhance the Safe Transportation of Batteries

III. Additional Harmonization Proposals in This NPRM

IV. Amendments Not Being Considered for Adoption in This NPRM

V. Section-by-Section Review

VI. 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 Policies and Procedures

F. Paperwork Reduction Act

G. Regulatory Identifier Number (RIN)

H. Unfunded Mandates Reform Act

I. Environment Assessment

J. Privacy Act

K. International Trade Analysis

I. Background

By final order published December 21, 1990 (Docket HM-181; 55 FR 52402), we comprehensively revised the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) to harmonize U.S. requirements with the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations). The UN Recommendations are not regulations, but rather are recommendations issued by the UN Committee of Experts on the Transport of Dangerous Goods (TDG) and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). These recommendations are amended and updated biennially by the TDG 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 Technical Instructions (ICAO TI) for the Transport of Dangerous Goods by Air.

Since publication of the 1990 rule, we have issued seven additional international harmonization rules (Dockets HM-215A, 59 FR 67390; HM-215B, 62 FR 24690; HM-215C, 64 FR 10742; HM-215D, 66 FR 33316; HM-215E, 68 FR 44992; HM-215G, 69 FR 76044; and HM-215I, 71 FR 78595) based on the corresponding biennial updates of the UN Recommendations, the IMDG Code, and the ICAO TI.

To maintain alignment of the HMR with international requirements, in this NPRM, we are proposing to incorporate

changes based on the Fifteenth revised edition of the UN Recommendations, Amendment 34 to the IMDG Code, and the 2009-2010 ICAO TI which become effective January 1, 2009.

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 facilitates 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 and becomes increasingly important as the volume of hazardous materials transported in international commerce grows. By facilitating compliance, harmonization also tends to enhance safety for international movements, but only if the international standards themselves provide an appropriate level of safety. To that end, 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 consider each amendment on its own merit. Each amendment is considered 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 without imposing undue burdens on the regulated public.

II. Transportation of Batteries and Battery-Powered Equipment, Articles and Devices

A. Current Regulatory Requirements

The most significant proposals in this NPRM address the transportation of batteries and battery-powered devices. Currently batteries and battery-powered devices are subject to a number of requirements in the HMR. Most importantly, the HMR restrict the transportation of electrical devices, including batteries and battery-powered devices, that are likely to create sparks or generate a dangerous amount of heat that could cause fire, smoke, or otherwise adversely affect the packaging material or means of conveyance. These batteries and battery-powered devices are forbidden from transportation unless packaged in a manner that prevents such an occurrence (§ 173.21(c)). Additionally, the following types of batteries are subject to packaging and hazard communication requirements:

• Wet (electric storage) batteries (§ 173.159);

• Batteries containing sodium (§ 173.189);

• Lithium cells and batteries (§ 173.185);

• Solid potassium hydroxide batteries (§ 173.213); and

• Battery-powered vehicles and equipment (§ 173.220).

These requirements primarily address the hazards posed by the chemicals contained in the batteries as opposed to the stored electrical energy. For instance, wet cell batteries are required to be packaged in a manner to prevent leakage of the corrosive battery fluid in the event of an accident. The electrical hazard of the battery is addressed through general requirements to prevent short-circuiting, and the general prohibition on transporting such devices without proper protection and packaging (§ 173.21(c)). But the HMR currently prescribes no separate or unique classification for identifying materials that present a hazard in transport based on their stored electrical energy. This proposed rule will address the electrical hazards posed by batteries and battery-powered devices by enhancing packaging and hazard communication requirements.

B. Accident/Incident History

A growing number of incidents involving batteries and battery-powered devices transported by aircraft (see Section II.B) has highlighted the transportation safety risks. Additionally, several factors are contributing to a heightened concern for the future transport of these devices, with particular attention to the risk onboard aircraft, including: (1) The increasing number of batteries and battery-powered portable and handheld devices (e.g., laptops, cellular phones, etc.) carried by airline passengers and otherwise transported in commerce; (2) the development and use of batteries with extended operating life and greater stored energy; and (3) the increasing number of counterfeit batteries in distribution and use. If not adequately protected from damage, short circuiting or, for devices containing batteries, inadvertent activation, batteries and battery-powered devices of all types can create or cause sparks or a dangerous amount of heat for extended periods, and in some cases, cause a fire. Cargo fires are a significant hazard in all modes of transportation and can have particularly catastrophic results in air transportation. If located aboard an aircraft during flight, inadequately protected batteries and battery-powered devices can pose a significant threat to the safety of people, property, and the environment.

PHMSA and the Federal Aviation Administration (FAA) are aware of more than 90 incidents involving batteries or battery-powered devices in air transportation since 1996 that produced smoke, fire or a dangerous amount of heat. These incidents have occurred either on board an aircraft in cargo, checked, or carry-on baggage, or in ground transport facilities associated with air transportation. Many of these incidents involved shipments of batteries as cargo. The remainder involved shipments of electrically powered vehicles, equipment, or apparatus containing batteries. Since most batteries are excepted from the incident reporting requirements in the HMR, it is likely there have been additional incidents in all modes of transportation that were not reported.

One major injury and several minor injuries were reported from these incidents. In some cases, the property damage and business interruption costs resulting from the incidents were significant. Most incidents occurred or were discovered on the ground in air transport facilities or vehicles. Three incidents occurred in flight on passenger and cargo planes, resulting in emergency landings or flight plan diversions.

C. Recent Actions To Enhance Battery Safety

In response to these incidents, PHMSA's predecessor agency (the Research and Special Programs Administration) issued a public advisory on July 7, 1999 (64 FR 36743), reminding the transportation industry and public that batteries and electric devices that contain batteries are forbidden for transport unless properly packaged to prevent the creation of sparks or generation of a dangerous amount of heat (§ 173.21). The FAA issued safety advisories to the airline industry on July 2, 1999, and again on May 23, 2002.

In response to a series of incidents involving batteries carried by airline passengers, PHMSA initiated a campaign to educate the public about ways to reduce the risks posed in the transportation of batteries and battery-

powered devices. The campaign included establishing a dedicated Web page for air travelers and developing a battery safety guide that includes safety measures and tips for the general public, for distribution at airports, in retail outlets, and through electronic media. As part of our battery safety campaign, we recommended various practical measures for complying with the regulations and reducing transportation risks. Recommended practices include keeping batteries installed in electronic devices; packing spare batteries individually in carry-on baggage; keeping spare batteries in their original retail packaging; separating batteries from other metallic objects, such as keys, coins and jewelry; securely packing battery-powered devices in a manner to prevent accidental activation; and ensuring batteries are undamaged and purchased from reputable sources. On March 26, 2007, PHMSA issued a safety advisory notice (72 FR 14167) to further inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried on board an aircraft.

We have also initiated a comprehensive strategy aimed at reducing the risks posed by batteries and battery-powered devices in transportation. On February 22, 2007; April 26, 2007; May 24-25, 2007; and April 11, 2008, PHMSA hosted meetings with public and private sector stakeholders who share our concern for the safe transportation of batteries and battery-powered devices. The meetings provided an opportunity for representatives of the National Transportation Safety Board (NTSB), the Consumer Product Safety Commission, manufacturers of batteries and battery-powered devices, airlines, airline employee organizations, testing laboratories, and the emergency response and law enforcement communities to share and disseminate information about battery-related risks and developments. Understanding these risks is essential to promote improvements in industry standards and best practices. Together we identified a series of immediate and longer-term actions that participants are taking or will take to enhance safety, including:

• Comprehensive reporting and investigation of battery-related incidents;

• Improved battery, consumer product, and software design;

• Development and implementation of a technical standards agenda;

• Consideration and implementation of improved regulatory standards;

• Focused enforcement; and

• Development and implementation of a public outreach and education campaign.

The new requirements proposed in this NPRM are an important element of the safety strategy, designed to address specific battery-related hazards not adequately addressed by existing HMR requirements.

D. Proposals To Enhance the Safe Transportation of Batteries

In this NPRM, we propose the following provisions to enhance the safe transportation of batteries and battery-powered devices:

• Require reporting of incidents involving batteries and battery-powered devices (devices include equipment) or vehicles.

• Clarify the requirement that batteries, and battery-powered devices and vehicles, be offered for transportation and transported in a manner that prevents short-circuiting, dangerous evolution of heat, damage to terminals, and, in the case of transportation by aircraft, unintentional activation.

• Require a certification on the shipping documentation that batteries and battery-powered devices have met the conditions and all requirements for transport as specified in the applicable exception or special provision.

• Eliminate the requirement to disconnect the terminals when a battery-powered wheelchair or mobility aid is transported as checked baggage, provided the wheelchair or mobility aid design provides an effective means of preventing unintentional activation.

The measures proposed in this rule will harmonize the HMR with international standards applicable to the transportation of batteries and battery-powered devices. More importantly, these measures will provide data and information to develop an understanding of the root causes of battery incidents in transportation and reduce the associated risks.

1. Prevention of Short Circuits, Dangerous Evolution of Heat, Sparks, Unintentional Activation, or Damage to Terminals

In this NPRM, we are proposing a number of revisions to clarify that batteries of all types and battery-powered devices, equipment, and vehicles must be packaged for transportation in a manner that prevents short-circuiting, damage to terminals, dangerous evolution of heat, and, for transportation by aircraft, unintentional activation. We are also proposing several examples of packaging methods that may meet this performance standard, including packaging each battery or each battery-powered device in fully enclosed inner packagings made of non-conductive material, and separating batteries and battery-powered devices in a manner to prevent contact with other batteries, devices or conductive materials (e.g., metal) in the packagings. Batteries designed with exposed terminals or connectors should have the exposed terminals or connectors individually protected with non-conductive caps. We propose to include language in §§ 171.15, 171.16, 173.21, 173.159, 173.220, and 175.10 to further clarify these requirements.

2. Incident Reporting

Since most batteries are currently excepted from the incident reporting requirements in the HMR, it is likely that numerous incidents involving batteries and battery-powered devices in all modes of transportation that have gone un-reported. This under-reporting has made it difficult to assess the full extent of incidents in transportation and their causes. Therefore, in this NPRM, we propose to require the reporting in accordance with §§ 171.15 and 171.16 of the HMR of all incidents involving shipments of batteries or battery-powered devices involving fire, violent rupture, explosion, or a dangerous evolution of heat. The proposed reporting requirement applies to all battery shipments, including batteries that are prepared and offered as excepted from HMR requirements. The proposed incident reporting requirement is consistent with incident reporting provisions recently adopted by ICAO. (See §§ 171.15 and 171.16.)

3. Batteries Installed in Equipment

The HMR include a number of provisions applicable to batteries installed in vehicles, machinery, or other types of equipment. Section 173.220 sets forth transportation requirements for internal combustion engines, self-propelled vehicles, mechanical equipment containing internal combustion engines, and battery powered vehicles or equipment. Generally, this section excepts battery-powered vehicles, machinery, and equipment from the HMR, provided they meet certain minimal requirements. We are aware of several incidents resulting in a dangerous evolution of heat initiated by batteries of this design which have been inadequately protected. In this NPRM, we propose to require battery-powered vehicles, machinery, and equipment,

including battery-powered wheelchairs and mobility aids, to conform to the new requirements being proposed in § 173.159, including requirements for protecting terminals and preventing short-circuiting and unintentional activation. In addition, we propose to clarify that battery-powered vehicles, machinery, and equipment are forbidden to be transported unless packaged in a manner preventing the creation of sparks, a dangerous amount of heat and, in air transportation, unintentional activation.

Section 175.10 sets forth exceptions for passengers, crewmembers, and air operators. Currently, the HMR permit a wheelchair or other battery-powered mobility device to be carried on board a passenger aircraft as checked baggage provided that (1) visual inspection, including removal of the battery if necessary, reveals no obvious defects; (2) the battery is disconnected and terminals are insulated to prevent short-circuiting; and (3) the battery is securely attached to the wheelchair or mobility device or removed and separately packaged. We are concerned, however, that repeated handling of the battery in a wheelchair or other mobility device could result in damage or other problems that could compromise safety. Moreover, the design for batteries and their housing has significantly improved in recent years. Therefore, in this NPRM, we propose to revise paragraph § 175.10(a)(15) to eliminate the current requirement to disconnect the terminals when a battery-powered wheelchair or other mobility device is transported as checked baggage provided the device provides an effective means of preventing unintentional activation. Battery terminals must continue to be protected from short-circuiting, but such protection is inherent in the design of most wheelchairs and mobility devices. This proposal will enhance safety while providing improved accommodation for passengers traveling with wheelchairs or mobility devices and is consistent with corresponding provisions in the ICAO TI.

4. Non-Spillable Batteries

Section 173.159 sets forth requirements for the transportation of wet batteries, including non-spillable batteries. As currently provided in § 173.159(d), non-spillable batteries are excepted from the HMR provided certain conditions are met. Unless all of the conditions specified in § 173.159(d) are met, the non-spillable battery is fully subject to the HMR as a wet electric storage battery. International regulations outline the conditions in which a battery can be considered non-spillable and provide packaging requirements specific to non-spillable batteries. Non-spillable batteries meeting additional requirements are excepted from all other requirements of the HMR. In this NPRM, we are proposing to describe in § 173.159(f) the conditions in which a battery can be considered non-spillable and relocate the exceptions pertaining to non-spillable batteries to a new § 173.159a. Consistent with international requirements, we are proposing to specify that batteries can be considered “non-spillable,” provided they are capable of passing a vibration test and a pressure differential test without leakage. We are also proposing to require non-spillable batteries to be packaged in strong outer packaging and securely fastened in the battery holder or the equipment when the battery is an integral part of the operation of mechanical or electronic equipment. In addition, we propose to specify that except for the incident reporting requirements of §§ 171.15 and 171.16, non-spillable batteries are not subject to the requirements of the HMR if they meet the following additional conditions:

• At a temperature of 55 °C (131 °F), the battery does not contain any unabsorbed free-flowing liquid, and must be designed so that electrolyte will not flow from a ruptured or cracked case;

• The battery must be protected against short-circuiting and securely packaged in strong outer packaging;

• The battery must be marked “NONSPILLABLE” or “NONSPILLABLE BATTERY”; and

• For transportation by aircraft;

• They must meet the provisions of § 173.159(b); and

• Indicate that all conditions for transport as specified in the applicable exception or special provision have been met with the words, “not restricted” on the airway bill. This indication will allow freight forwarders and operators to verify that the consignor is aware of, and has complied with, the applicable regulatory requirements.

5. Conforming Amendments

We propose a number of conforming amendments in this NPRM to ensure that batteries are transported in accordance with the proposed requirements in § 173.159. For example, § 173.21(c) currently prohibits the transportation of electrical devices unless packaged to prevent the creation of sparks or generation of a dangerous amount of heat. In this NPRM, we propose to revise this paragraph to clarify that the term “electrical devices” includes “batteries” and “battery-powered devices.” We also propose to revise Special provision 130 to specify that “Batteries, dry, sealed, n.o.s.” are not subject to the requirements of the HMR except those pertaining to incident reporting, short circuit protection, damage to terminals, prevention of a dangerous amount of heat, damage to terminals, and when transported by aircraft, unintentional activation and an indication on the air waybill that all conditions for transport have been met (Special provision 130).

In addition, we are proposing to amend certain entries in the Hazardous Materials Table (HMT) in § 172.101. Currently, under the HMR, dry batteries are not subject to incident reporting or measures to prevent unintentional activation until a dangerous amount of heat has developed. As indicated above, in this NPRM, we propose to extend the requirements for incident reporting and enhanced packaging to cover all batteries and battery-powered devices. Thus, we propose to remove the entry “Batteries, dry,

not subject to the requirements of this subchapter

” in favor of a new entry, ‘”Batteries, dry, sealed, n.o.s.”

Note that shippers must distinguish between the proper shipping name “Batteries, dry, sealed, n.o.s.,” and the existing proper shipping name “Batteries, wet, non-spillable,

electric storage.

” Batteries described as “Batteries, wet, non-spillable,

electric storage

” have metallic lead and lead oxide electrodes and sulfuric acid electrolytes just like regular “wet” batteries, but the acid is either gelled up with silica or absorbed in a mat of micro-glass fibers. These batteries are not truly “sealed” (non-spillable) but are “valve regulated” (they are technically termed “valve-regulated lead-acid” or “VRLA”). The resealable valves prevent the entrance of oxygen from the outside air, but release excess hydrogen and oxygen formed during overcharging. These types of batteries are generally used for 12-volt vehicular starting applications and uninterruptible power supply applications.

Batteries described under the proposed new proper shipping name “Batteries, dry, sealed, n.o.s” are hermetically “sealed” and generally utilize other metals and/or carbon as electrodes. These batteries are typically used for portable power applications. The rechargeable (and some nonrechargeable) types have gelled alkaline electrolytes (rather than acidic) making it difficult for them to generate hydrogen or oxygen when overcharged.

The entry “Batteries, dry, containing potassium hydroxide solid,

electric storage

” would be revised by adding to column (7) a reference to proposed new Special provision “237.” The new special provision would specify that, for transportation by aircraft, “Batteries, dry, containing potassium hydroxide solid,

electric storage

” must be prepared and packaged in accordance with the requirements of § 173.159(a), and for transportation by aircraft, § 173.159(b)(2). The entry “Batteries, wet, non-spillable,

electric storage

” would be revised by adding to column (8A), a reference to proposed new § 173.159a.

Section 173.189 sets forth transportation requirements for batteries containing sodium or cells containing sodium. In this NPRM, we propose to revise paragraph (e) to specify that vehicles, machinery and equipment powered by sodium batteries must be consigned under the entry “Battery-powered vehicle

or

Battery-powered equipment.”

Section 176.84 contains additional stowage and segregation requirements for hazardous materials on cargo and passenger vessels. In this NPRM, in order to fully align the HMR with the IMDG Code, a new vessel stowage code “146” is added to the § 176.84(b) table to specify that, “Category B stowage applies for unit loads in open cargo transport units.” The new vessel stowage code “146” is assigned to “Batteries, wet, filled with acid,

electric storage,

” UN2794 and “Batteries, wet, filled with alkali,

electric storage,

” UN2795 in column (10B) of the HMT.

6. Lithium Batteries

Except for incident reporting requirements, this NPRM does not propose any amendments pertaining to the transportation of lithium batteries. PHMSA is working to evaluate and reduce lithium battery risks through targeted enforcement; inspections and testing, including root cause investigation of all incidents; public outreach; and other non-regulatory initiatives.

As we identify other opportunities for safety improvement, further rulemaking may be necessary. Before developing additional rulemaking proposals, PHMSA plans to complete an assessment of the costs and benefits of further restrictions and available alternatives. In the meantime, we will continue to monitor and evaluate the safety performance of lithium batteries in transportation, identify and target counterfeit and other non-conforming batteries, and encourage the development and introduction of safer battery designs.

III. Additional Harmonization Proposals in This NPRM

In addition to the battery proposals detailed above, in this NPRM, we are proposing the following amendments to harmonize the HMR with the most recent revisions to the UN Recommendations, ICAO TI, and IMDG Code:

•

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 vessels stowage provisions.

•

Fuel Cells:

Amendments to the HMT to add four new proper shipping names to describe the range of fuel used in fuel cell cartridges: (1) Corrosive substances (UN3477); (2) liquefied flammable gas (UN3478); (3) hydrogen in metal hydride (UN3479); and (4) water-reactive substances (UN3476). In addition, we are proposing amendments to expand the types of fuel cell cartridges permitted in carry-on baggage to include water-reactive substances and hydrogen in a metal hydride. Amendments to § 173.230 provide packaging requirements for fuel cells and, except for transportation by aircraft, limited quantity exceptions for the various types of fuel cell cartridges specified above.

•

Small Quantity Exceptions:

Amendments maintaining current allowances for small quantities of Division 2.2, Class 3, Division 4.1, Division 4.2 (PG II and III), Division 4.3 (PG II and III), Division 5.1, Division 5.2, Division 6.1, Class 7, Class 8, and Class 9 materials transported by highway and rail and adopting the UN and ICAO excepted quantity provisions for transportation by aircraft or vessel.

•

Incident Reporting:

Amendments to provisions that except certain hazardous materials or commodities from the requirements of the HMR, including incident reporting requirements. The HMR contain overriding provisions in §§ 171.15 and 171.16 requiring notice of specific types of incidents to the National Response Center (NRC) and submission of a Hazardous Materials Incident Report, DOT Form F 5800.1, when in possession of a hazardous material at the time of an incident. We would amend several provisions to emphasize the need to provide notice to the NRC and to address the need to obtain more accurate and complete data on incidents. The NRC relies on notices to gather and distribute spill data to emergency responders, and the DOT hazardous materials transportation safety program relies on DOT Form F 5800.1 to gather basic information on incidents that occur during transportation.

•

Organic Peroxide Tables:

Amendments to the Organic Peroxide Tables to add, revise, or remove certain hazardous materials and provisions.

•

Incorporation by Reference:

Amendments to incorporate by reference the updated ICAO TI, IMDG Code, and UN Recommendations.

•

Hazard Communication on Air waybills:

Amendments to require the consignor to indicate on the “air waybill” that certain hazardous materials or articles have met the conditions for transport as specified in the applicable exception or special provision.

•

Petitions for Rulemaking:

We are addressing several petitions for rulemaking: P-1490, requesting PHMSA to remove the requirement that the type of package must be included on the notification of pilot-in-command; P-1494, requesting PHMSA to specify that pictograms described in the UN GHS are not prohibited under the HMR; P-1505, requesting PHMSA to include a new proper shipping name “Powder, smokeless,” UN0509, to the § 172.101 HMT and to include the new entry among the explosives assigned Packaging Instruction 114(b) in § 173.62; and P-1516, requesting PHMSA to allow the marine pollutant list to remain the basis in domestic transportation for regulating substances hazardous to the environment while permitting substances meeting the new IMDG Code criteria to be transported as substances hazardous to the environment. We are also addressing petitions P-1517 and P-1518, requesting PHMSA to align provisions for the transport of fuel cell systems and cartridges in the HMR with international standards.

•

Requirements for Marine Pollutants:

Recently, the classification criteria for marine pollutants in the IMDG Code were amended for consistency with the aquatic toxicity criteria adopted within the GHS. The HMR currently allow materials meeting the criteria of a marine pollutant under the prior IMDG Code criteria to be classified as such for domestic or international transportation (see paragraph 4 of the introduction to Appendix B of 172.101). The new classification system adopted into the IMDG Code is complicated, and the associated criteria for classifying mixtures containing marine pollutants would involve an additional layer of complexity without a corresponding

public benefit; therefore, we are not proposing to adopt the new IMDG Code environmental classification system. In this rulemaking, we are proposing to maintain the current regulatory approach to facilitate transportation without mandating use of the new GHS-based criteria. We also propose to adopt a new marking for marine pollutants consistent with the marking adopted within the IMDG Code. These actions will provide the greatest possible harmonization with international requirements without imposing an undue burden on industry. This proposal is also consistent with a Petition for Rulemaking (P-1516) filed by the Dangerous Goods Advisory Council (DGAC). DGAC requested that for domestic transportation the marine pollutant list be maintained as the basis for regulating substances hazardous to the environment while permitting a substance meeting the new IMDG Code criteria to be transported as a substance hazardous to the aquatic environment. DGAC also recommended that the current 10% rule for classifying mixtures containing marine pollutants be used while allowing compliance with the mixture calculation in the IMDG Code. Though we have not proposed to implement a 10% rule for marine pollutants irrespective of whether they are identified as a severe marine pollutant, we request comments on that recommendation. In particular, we are interested in the environmental impacts of such a change and its effect on human health and the environment. We invite comments on the practical consequences of the differing approaches, for instance, in the event of release of such substances into aquatic resources and drinking water.

IV. Amendments Not Being Considered for Adoption in This NPRM

This NPRM proposes changes to the HMR based on amendments to the Fifteenth revised edition of the UN Recommendations, Amendment 34 to the IMDG Code, and the 2009-2010 ICAO TI, which become effective January 1, 2009. However, we are not proposing to adopt all of the amendments to those documents into the HMR. In many cases, amendments to the international recommendations and regulations have not been adopted 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. If we have inadvertently omitted an amendment in this NPRM, we will attempt to include the omission in the final rule. However, our ability to make changes in a final rule is limited by requirements of the Administrative Procedure Act (5 U.S.C. 553). In some instances, we can adopt a provision inadvertently omitted in the NPRM if it is clearly within the scope of changes proposed in the notice, does not require substantive changes from the international standard on which it is based, and imposes minimal or no cost impacts on persons subject to the requirement. Otherwise, in order to provide opportunity for notice and comment, the change must be proposed in an NPRM.

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 proposing to adopt in this NPRM, with a brief explanation of why the amendment was not included:

•

Requirements for Hazardous Materials Security.

The UN and ICAO have adopted minimal requirements pertaining to hazardous materials security. On March 25, 2003, we published a final rule to enhance the security of hazardous materials transported in commerce (68 FR 14510). In the final rule, shippers and carriers of certain highly hazardous materials are required to develop and implement security plans. In addition, all shippers and carriers of hazardous materials are required to include a security component. The security plan requirements apply to shipments of hazardous materials that must be placarded and to select agents. In a separate rulemaking, we are considering revising the list of materials for which security plans are required to ensure that the requirements apply only to those materials that pose a true security risk in transportation. See the advance notice of proposed rulemaking (ANPRM) published on September 21, 2006 (71 FR 55156).

•

Requirements for Radioactive Materials.

We are not proposing to adopt provisions pertaining to the transportation of Class 7 (radioactive) materials. 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 under Docket HM-250.

•

Requirements for Infectious Substances.

The UN and ICAO have adopted minimal standards applicable to the transportation of human remains and animal carcasses as to which there is minimal likelihood that pathogens are present. For purposes of the HMR, such specimens are not considered hazardous, and their transportation is not subject to the HMR. These specimens are currently regulated by the Food and Drug Administration of the U.S. Department of Health and Human Services, the U.S. Department of Agriculture and subject to State and local authorities. Therefore, we are not proposing to incorporate the new international provisions into the HMR.

•

Requirement for Definition of “Target” for Use During Packaging Testing.

Amendments to the HMR pertaining to the definition of a “target” for a drop test performed on non-bulk packagings are not being proposed in this rulemaking. The UN Recommendations amended the description to specify that the surface of a target must be immovable, free of defects, rigid, and large enough to ensure that the test package falls entirely upon the surface. We believe the current provisions in the HMR pertaining to the drop test method for non-bulk packagings adequately address this issue.

•

Requirement for Vibration Test for All Intermediate Bulk Containers (IBCs).

Amendments to the HMR pertaining to the test method and duration of a vibration test for IBCs are not being proposed in this rulemaking. PHMSA successfully helped to introduce to the UN Recommendations a vibration test requirement for IBCs that would both enhance safety and help to establish a more equivalent testing protocol for manufacturers of IBCs worldwide. However, the vibration test adopted by the UN may be conducted as a “stand-alone” design-type test on an otherwise untested IBC. In contrast, the vibration test originally introduced by PHMSA would require the vibration test to be conducted in sequence with other required tests. We believe this method provides a higher degree of safety, and therefore, are not proposing to amend the vibration test requirements currently in the HMR.

•

Requirement for Bromine (UN1744).

In the Fifteenth edition of the UN Recommendations, a packing instruction and a special packing provision for “Bromine,” UN1744 were consolidated into a new packing instruction specifically for Bromine. After reviewing this new packing

instruction, we believe the current provisions in the HMR pertaining to the packaging of Bromine are adequate.

•

Exceptions to Packaging for Paint and Paint-Related Material.

Amendments authorizing certain exceptions from performance testing of packagings containing paint and certain paint-related materials are not being proposed in this rulemaking. Currently, both the UN Recommendations and the HMR contain certain packaging exceptions for specific adhesives, printing inks, printing ink related materials, paint, paint-related materials and resin solutions (see UN Packing Instruction P001, Special Packing Provision PP1 and 49 CFR 173.173(b)(2)). The Fifteenth revised edition of the UN Recommendations expands the exceptions to also include such materials when classified as environmentally hazardous substances. We are currently reviewing the incident data related to these exceptions, and may consider this issue for a future rulemaking.

•

Requirements for Lithium Batteries.

Amendments to the HMR pertaining to lithium batteries based on the Fifteenth revised edition of the UN Recommendations are not being proposed in this rulemaking. We are reviewing these requirements and may consider them for a future rulemaking.

•

Requirements for Additional Signage.

Amendments to the HMR pertaining to additional signage in airports are not being proposed in this rulemaking. We are reviewing these amendments, including the related cost impacts, and may consider them for a future rulemaking. We request comments to provide information and suggestions that we can use during a future review.

V. Section-by-Section Review

Following is a section-by-section review of the amendments proposed in this NPRM. Note that this section-by-section review excludes the proposals applicable to the transportation of batteries and battery-powered devices, which are detailed in Section II of this Notice. We request comments providing information and suggestions that we can use during the review of these proposals.

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 standards bodies. PHMSA regularly reviews updated consensus standards and considers their merit for inclusion in the HMR.

Section 171.7 lists all standards incorporated by reference into the HMR. For this rulemaking, we evaluated updated international consensus standards 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 standards have a well-established and documented safety history; their adoption will maintain the high safety standard currently achieved under the HMR. Therefore, we propose to update the incorporation by reference materials for the ICAO TI, the IMDG Code, and the UN Recommendations. The updated editions of these standards become effective January 1, 2009.

We propose to revise the following standards:

• The Technical Instructions for the Safe Transport of Dangerous Goods by Air, 2007-2008 Edition.

• International Convention for the Safety of Life at Sea (SOLAS) Amendments 2000, Chapter II-2, Regulation 19, 2001.

• The International Maritime Organization’s International Maritime Dangerous Goods Code, 2006 Edition, Incorporating Amendment 33-06, English Edition, Volumes 1 and 2.

• The UN Recommendations on the Transport of Dangerous Goods, Fourteenth revised edition (2005), Volumes I and II.

Section 171.14

This section lists specific transition periods for certain provisions adopted into the HMR. Paragraph (d) of this section specifies transition provisions for previously adopted amendments intended to harmonize the HMR with international standards. We are proposing revisions to this paragraph to provide specific transitional provisions for certain amendments proposed in this NPRM. We are proposing an effective date of January 1, 2009, and a mandatory compliance date of January 1, 2010. We propose to permit voluntary compliance as of January 1, 2009, to correspond with the effective implementation dates of the 2009-2010 ICAO TI and Amendment 34 of the IMDG Code. This authorization would allow shippers to prepare their international shipments in accordance with international standards that will become effective on January 1, 2009.

Section 171.25

Section 171.25 specifies additional requirements for the use of the IMDG Code when a hazardous material is offered for transportation to, from, or within the United States by vessel, and by motor carrier and rail, provided all or part of the movement is by vessel. Recently, an incident occurred in which a portable tank containing “Argon, refrigerated liquid (cryogenic liquid),” UN1951, stowed below the deck of a vessel released its contents, resulting in the asphyxiation deaths of three individuals who entered the confined cargo space where the portable tank was stowed. The HMR currently prohibit the stowage of such materials below deck (§ 176.76(g)) because of the potential hazard of asphyxiation when large volumes of refrigerated liquefied gases are released below the deck of a vessel in confined spaces. However, the IMDG Code does not prohibit the stowage of tanks below deck in all cases. Some refrigerated liquefied gases, including argon, are assigned to stowage “Category B” in column (16) of the dangerous goods list of the IMDG Code. Therefore, in this NPRM, we propose to revise § 171.25 to specify that portable tanks, cargo tanks, and tank cars containing cryogenic liquids must be “on deck” regardless of the stowage authorized in the IMDG Code.

Part 172

Section 172.101 Hazardous Materials Table (HMT)

Section 172.101 contains the HMT and explanations for each of its columns. We propose to make various amendments to the HMT. Readers should review all changes for a complete understanding of the proposed amendments. For purposes of the Government Printing Office's typesetting procedures, proposed

changes to the HMT will appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with proposed revisions to the proper shipping names, will appear as a “remove” and “add.” Proposed amendments to the HMT for the purpose of harmonizing with international standards include, but are not limited to, the following:

In the final rule for Docket HM-215G (69 FR 76044; December 20, 2004), we added new generic entries for Organometallic substances consistent with descriptions added to the UN Recommendations. In the final rule, we allowed the continued use of certain specific Organometallic entries; however, we anticipated removing the specific Organometallic entries from the HMT by January 1, 2007. The entries were to be removed because they were superseded by more appropriate generic entries. However, the entries intended to be removed currently remain in the HMT. Therefore, we are proposing to remove the following Organometallic entries for consistency with the intent of HM-215G:

UN3052 Aluminum alkyl halides, liquid

UN3461 Aluminum alkyl halides, solid

UN3076 Aluminum alkyl hydrides

UN3051 Aluminum alkyls

UN1366 Diethylzinc

UN1370 Dimethylzinc

UN2445 Lithium alkyls, liquid

UN3433 Lithium alkyls, solid

UN3053 Magnesium alkyls

UN2005 Magnesium diphenyl

Special provision “TP12” states: “This material is considered highly corrosive to steel.” The phrase “highly corrosive to steel” is not defined by any specific criteria. Further, “TP12,” unlike other TP codes, is simply a statement and does not apply any regulatory requirement. It is unclear if all highly corrosive materials are assigned Special provision “TP12,” or if this statement provides any useful guidance for selecting an appropriate portable tank. Therefore, we are proposing to revise the following entries by removing Special provision “TP12”:

UN1716 Acetyl bromide

UN1717 Acetyl chloride

UN2584 Alkyl sulfonic acids, liquid

or

Aryl sulfonic acids, liquid

with more than 5 percent free sulfuric acid

UN2571 Alkyl sulfuric acids

UN2817 Ammonium hydrogendifluoride, solution, PG II and III

UN2796 Battery fluid, acid

UN1736 Benzoyl chloride

UN1737 Benzyl bromide

UN1738 Benzyl chloride

UN1738 Benzyl chloride

unstabilized

UN1739 Benzyl chloroformate

UN2692 Boron tribromide

UN1742 Boron trifluoride acetic acid complex, liquid

UN1743 Boron trifluoride propionic acid complex, liquid

UN1744 Bromine

UN1744 Bromine solutions

UN1745 Bromine pentafluoride

UN1746 Bromine trifluoride

UN2513 Bromoacetyl bromide

NA2742 sec-Butyl chloroformate

UN2353 Butyryl chloride

NA9263 Chloropivaloyl chloride

UN1754 Chlorosulfonic acid

with or without sulfur trioxide

UN1755 Chromic acid solution, PG II and PG III

UN1758 Chromium oxychloride

UN2240 Chromosulfuric acid

NA9264 3,5-Dichloro-2,4,6-trifluoropyridine

UN1764 Dichloroacetic acid

UN1768 Difluorophosphoric acid, anhydrous

NA2845 Ethyl phosphonous dichloride, anhydrous [

pyrophoric liquid

]

NA2927 Ethyl phosphonothioic dichloride, anhydrous or Ethyl phosphorodichloridate

UN1776 Fluorophosphoric acid anhydrous

UN1778 Fluorosilicic acid

UN1777 Fluorosulfonic acid

UN1782 Hexafluorophosphoric acid

UN1789 Hydrochloric acid PG II and PG III

UN1786 Hydrofluoric acid and Sulfuric acid mixtures

UN1790 Hydrofluoric acid,

with more than 60 percent strength

UN1790 Hydrofluoric acid,

with not more than 60 percent strength

NA2742 Isobutyl chloroformate

UN3246 Methanesulfonyl chloride

NA9206 Methyl phosphonic dichloride

NA2845 Methyl phosphonous dichloride,

pyrophoric liquid

NA1556 Methyldichloroarsine

UN1826 Nitrating acid mixtures, spent

with more than 50 percent nitric acid

UN1826 Nitrating acid mixtures, spent

with not more than 50 percent nitric acid

UN1796 Nitrating acid mixtures

with more than 50 percent nitric acid

UN1796 Nitrating acid mixtures

with not more than 50 percent nitric acid

UN2031 Nitric acid

other than red fuming, with more than 70 percent nitric acid

UN2031 Nitric acid

other than red fuming, with not more than 20 percent nitric acid

UN2031 Nitric acid

other than red fuming, with not more than 70 percent nitric acid

UN2032 Nitric acid, red fuming

UN1798 Nitrohydrochloric acid

UN2308 Nitrosylsulfuric acid, liquid

UN1873 Perchloric acid

with more than 50 percent but not more than 72 percent acid, by mass

UN1817 Pyrosulfuryl chloride

UN2879 Selenium oxychloride

UN1906 Sludge, acid

UN1828  Sulfur chlorides

UN1829 Sulfur trioxide, stabilized

UN1831 Sulfuric acid, fuming

with less than 30 percent free sulfur trioxide

UN1831 Sulfuric acid, fuming

with 30 percent or more free sulfur trioxide

UN1832 Sulfuric acid, spent

UN1830 Sulfuric acid

with more than 51 percent acid

UN2796 Sulfuric acid

with not more than 51 percent acid

UN1834 Sulfuryl chloride

UN1836 Thionyl chloride

UN2699 Trifluoroacetic acid

NA9269 Trimethoxysilane

We propose to add a new non-bulk packaging section (§ 173.206) for the transportation of certain flammable, corrosive and toxic materials, specifically, chlorosilanes that have water-reactive properties. For a detailed summary of the rationale, see the preamble discussion for § 173.206. The following entries would be revised in Column (8B) by replacing the current non-bulk packaging provision with “206”:

UN1724 Allyltrichlorosilane, stabilized

UN1728 Amyltrichlorosilane

UN1747 Butyltrichlorosilane

UN1753 Chlorophenyltrichlorosilane

UN2986 Chlorosilanes, corrosive, flammable, n.o.s.

UN2987 Chlorosilanes, corrosive, n.o.s.

UN2985 Chlorosilanes, flammable, corrosive, n.o.s.

UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s.

UN3361 Chlorosilanes, toxic, corrosive, n.o.s.

UN1762 Cyclohexenyltrichlorosilane

UN1763 Cyclohexyltrichlorosilane

UN2434 Dibenzyldichlorosilane

UN1766 Dichlorophenyltrichlorosilane

UN1767 Diethyldichlorosilane

UN1162 Dimethyldichlorosilane

UN1769 Diphenyldichlorosilane

UN1771 Dodecyltrichlorosilane

UN2435 Ethylphenyldichlorosilane

UN1196 Ethyltrichlorosilane

UN1781 Hexadecyltrichlorosilane

UN1784 Hexyltrichlorosilane

UN2437 Methylphenyldichlorosilane

UN1250 Methyltrichlorosilane

UN1799 Nonyltrichlorosilane

UN1800 Octadecyltrichlorosilane

UN1801 Octyltrichlorosilane

UN1804 Phenyltrichlorosilane

UN1816 Propyltrichlorosilane

UN1298 Trimethylchlorosilane

UN1305 Vinyltrichlorosilane, stabilized

For consistency in the assignment of Special provision “TP13” (which requires provision of self-contained breathing apparatus when transported by vessel) to all chlorosilanes, the following entries would be revised in Column (7) by adding Special provision “TP13”:

UN2987 Chlorosilanes, corrosive, n.o.s

UN1781 Hexadecyltrichlorosilane

UN1804 Phenyltrichlorosilane

UN1818 Silicon tetrachloride

We consider Special provision “TP7” essential for the safe transport of chlorosilanes. This special provision requires the vapor space to be purged of air by nitrogen or other means. However, there is no consistent assignment of “TP7” to chlorosilanes.

For enhanced safety and consistency with international regulations, the following entries would be revised in Column (7) by adding Special provision “TP7”:

UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s.

UN3361 Chlorosilanes, toxic, corrosive, n.o.s.

UN1250 Methyltrichlorosilane

UN1305 Vinyltrichlorosilane, stabilized

Chlorosilanes of Class 3 and Class 8 are currently authorized for transport in metal IBCs under Special provisions “IB1” and “IB2.” Because metal IBCs have lift-up lids with clamp screws, we are concerned that the overturn of a metal IBC during an accident may lead to an opening of a lift-up lid and result in a release of chlorosilanes from these packagings. To address these concerns, we are proposing to prohibit the use of metal IBCs by removing the respective “IB1” or “IB2” provisions from the following entries. We are also proposing to add Special provision “TP7” to require the vapor space to be purged of air, as discussed above:

UN2986 Chlorosilanes, corrosive, flammable, n.o.s.

UN2987 Chlorosilanes, corrosive, n.o.s.

UN2985 Chlorosilanes, flammable, corrosive, n.o.s.

Bottom discharge openings are currently allowed on portable tanks used for the transport of most chlorosilanes. For example, some chlorosilane entries are assigned Special provision “T7,” which provides for bottom opening requirements. As part of a voluntary initiative to enhance safety, portions of the regulated community have begun to use only portable tanks without bottom discharge connections. To further enhance safety and to prohibit the use of portable tanks with bottom discharge openings, we are proposing to revise the following entries by replacing Special provision “T7” with “T10.” Special provision “T10” prohibits the use of bottom discharge openings. We are also proposing to delete the respective IBC special provisions (as indicated below) to prohibit the use of metal IBCs and add Special provision “TP7” to require the vapor space to be purged of air, as discussed above:

UN1724 Allyltrichlorosilane, stabilized

UN1728 Amyltrichlorosilane

UN1747 Butyltrichlorosilane

UN1753 Chlorophenyltrichlorosilane

UN1762 Cyclohexenyltrichlorosilane

UN1763 Cyclohexyltrichlorosilane

UN2434 Dibenzyldichlorosilane

UN1766 Dichlorophenyltrichlorosilane

UN1767 Diethyldichlorosilane

UN1162 Dimethyldichlorosilane

UN1769 Diphenyldichlorosilane

UN1771 Dodecyltrichlorosilane

UN2435 Ethylphenyldichlorosilane

UN1196 Ethyltrichlorosilane

UN1781 Hexadecyltrichlorosilane

UN1784 Hexyltrichlorosilane

UN2437 Methylphenyldichlorosilane

UN1799 Nonyltrichlorosilane

UN1800 Octadecyltrichlorosilane

UN1801 Octyltrichlorosilane

UN1804 Phenyltrichlorosilane

UN1816 Propyltrichlorosilane

UN1298 Trimethylchlorosilane

As a safety measure for the transport of most chlorosilanes, we are proposing to apply Special provision “T10,” to prohibit bottom discharge openings on portable tanks used to transport chlorosilanes. However, for chlorosilanes meeting the criteria of Division 4.3 and for “n.o.s.” entries meeting the criteria for Classes 3, 8 and Division 6.1 that have been assigned “T10,” we are considering the general assignment of Special provision “T14” rather than “T10.” In addition to prohibiting bottom outlet openings, Special provision “T14” requires a higher minimum test pressure for the periodic hydrostatic pressure test. We believe a higher minimum test pressure would provide an increased level of safety when transporting these types of chlorosilanes in portable tanks. Some chlorosilanes meeting the above classification criteria (e.g., UN2987 and UN1295) have already been assigned Special provision “T14.” Therefore, to enhance safety and for consistency in assigning special provisions, we are proposing to revise the following entries by replacing Special provision “T10” with Special provision “T14” in Column (7):

UN2988 Chlorosilanes, water-reactive, flammable, corrosive, n.o.s.

UN1183 Ethyldichlorosilane

UN1242 Methyldichlorosilane

The following entries would be revised by assigning PG II in column (5) rather than PG I. The flammability properties (i.e., the flashpoint) place them in PG II, and no additional evidence indicates the entries are more corrosive than all the other chlorosilanes classed as a Class 3, subsidiary Class 8, PG II (e.g., UN1126). Therefore, in accordance with the Precedence of hazard table (§ 173.2a), the entries would be classed as Class 3, subsidiary Class 8, PG II materials. In addition, as discussed above, we would replace Special provision “T7” with “T10” for most chlorosilanes, however, for these entries Special provision “T10” would replace the previously assigned Special provision “T11.” Readers should note, this revision is contingent upon the adoption of the proposed change from PG I to PG II. The entries would be revised in Column (5) by assigning PG II and in Column (7) by replacing Special provision “T11” with Special provision “T10”:

UN1250 Methyltrichlorosilane

UN1305 Vinyltrichlorosilane, stabilized

As discussed above, for most chlorosilanes, we are proposing to replace Special provision “T7” with “T10,” which prohibits bottom discharge openings. In addition, we propose to revise the following entries by replacing Special provision “T11” with Special provision “T14” which prohibits bottom discharge openings in portable tanks:

UN2986 Chlorosilanes, corrosive, flammable, n.o.s.

UN2985 Chlorosilanes, flammable, corrosive, n.o.s.

UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s

UN3361 Chlorosilanes, toxic, corrosive, n.o.s.

Chlorosilanes of Division 6.1 are authorized for transport in metal IBCs under Special provision “IB1.” As discussed above, we are proposing to prohibit the use of metal IBCs for the transport of chlorosilanes. Additionally, Special provision “TP27” is recommended for chlorosilanes assigned Special provision “T14.” If found acceptable according to the test pressure definition in § 178.274, Special provision “TP27” allows a test pressure of 4 bar instead of 6 bar. We would assign tank provision “TP27” to all “n.o.s.” entries of Classes 3, 8 and Division 6.1. Entries for Division 4.3 would not be assigned “TP27” because of higher risk of a possible release of a flammable gas. The following entries would be revised in Column (7) by deleting Special provision “IB1” and adding Special provision “TP27”:

UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s

UN3361 Chlorosilanes, toxic, corrosive, n.o.s.

The following entries would be revised by adding Special provision “IP2” to correct an inconsistency. “Chloroacetic acid, solid,” UN1751 is the only Division 6.1, PG II material assigned Special provision “IB8” that is not also assigned Special provision “IP2.” Similarly, the remaining entries listed below are Division 5.1, PG II materials assigned “IB8” but not “IP2”. The following entries would be revised in Column (7) by adding Special provision “IP2”:

UN1751 Chloroacetic acid, solid

UN1463 Chromium trioxide, anhydrous.

UN2465 Dichloroisocyanuric acid, dry or Dichloroisocyanuric acid salts

UN1473 Magnesium bromate

UN2627 Nitrites, inorganic, n.o.s.

UN1484 Potassium bromate

UN1485 Potassium chlorate

UN1487 Potassium nitrate and sodium nitrite mixtures

UN1488 Potassium nitrite

UN1490 Potassium permanganate

UN1493 Silver nitrate

UN1494 Sodium bromate

UN1495 Sodium chlorate

UN3247 Sodium peroxoborate, anhydrous

UN2468 Trichloroisocyanuric acid, dry

UN1512 Zinc ammonium nitrite

UN1514 Zinc nitrate

Special provision “36” places net quantity limits per package for medicines classed as hazardous materials. However, the quantity limits are inconsistent with the net quantity packaging limits authorized under the limited quantities exceptions authorized for these materials. Therefore, these entries would be revised in Column (7) by removing Special provision “36”:

UN3248 Medicine, liquid, flammable, toxic, n.o.s.

UN1851 Medicine, liquid, toxic, n.o.s.

UN3249 Medicine, solid, toxic, n.o.s.

Chemical oxygen generators are subject to stringent packaging and shipping requirements. We are proposing to add a new Special provision “62” to the following entries to emphasize that chemical oxygen generators are not authorized to be transported under the generic “oxidizer, n.o.s.” entries.

UN3098 Oxidizing liquid, corrosive, n.o.s.

UN3139 Oxidizing liquid, n.o.s.

UN3099 Oxidizing liquid, toxic, n.o.s.

UN3085 Oxidizing solid, corrosive, n.o.s.

UN3137 Oxidizing solid, flammable, n.o.s.

UN1479 Oxidizing solid, n.o.s.

UN3100 Oxidizing solid, self-heating, n.o.s.

UN3087 Oxidizing solid, toxic, n.o.s.

UN3121 Oxidizing solid, water-reactive, n.o.s.

The following entries would be revised by adding a reference to packaging section “307” to Column (8A) for consistency with international regulations regarding exception from the HMR for manufactured articles and apparatuses containing minimal amounts of inert gas. See the discussion of changes to § 173.307 for additional information regarding this proposed change.

UN1006 Argon, compressed

UN1046 Helium, compressed

UN1970 Krypton, compressed

UN1065 Neon, compressed

UN2036 Xenon, compressed

The entry “Batteries, dry, containing potassium hydroxide solid,

electric storage

” would be revised by adding to column (7) a reference to proposed new Special provision “237.”

The entries “Boron trifluoride,” UN1008, and “Hydrogen iodide, anhydrous” UN2197, would be revised by adding the Class 8 subsidiary hazard label to Column (6) for consistency with international regulations and for consistency with all other Division 2.3 toxic gas entries in the HMT that also have the Class 8 subsidiary hazard.

The entry “Calcium manganese silicon,” UN2844 would be revised in Column (7) by removing Special provision “IP2.” When this material is transported in other than metal or rigid plastic IBCs, Special provision “IP2” specifies they must be transported in a closed freight container or a closed transport vehicle. However, this is inconsistent with other Division 4.3, PG III materials that are not subject to this Special IBC packaging provision.

For consistency with UN Recommendations, the entry “Chlorine,” UN1017, would be revised in Column (6) by adding the Division 5.1 subsidiary hazard label. This label will help communicate that this material may cause or enhance the combustion of other materials.

The hazardous materials descriptions for the entries “Chloronitrobenzene, liquid

ortho,

” UN3409, and “Chloronitrobenzenes, solid

meta or para,

” UN1578, would be revised in Column (2) by removing the italicized word(s). The italicized word(s) associated with the proper shipping names are a potential source of confusion and would be removed for clarification and consistency with the same entries in the UN Recommendations. This revision appears as a “Remove/Add” in this rulemaking.

The entries “Environmentally hazardous substances, liquid, n.o.s.,” UN3082 and “Environmentally hazardous substances, solid, n.o.s.,” UN3077, would be revised by adding a new Special provision “335” in Column (7). Special provision “335” clarifies that mixtures of non-hazardous solids and environmentally hazardous liquids or solids may be classified as UN3077 provided there is no free liquid visible at the time the substance is loaded or at the time the packaging or transport unit is closed.

In addition to flammable liquid fuel cell cartridges already provided for by the HMR, a number of other rapidly advancing fuel cell technologies employing a range of fuels continue to emerge. In this NPRM, we are proposing to revise the entry for fuel cells containing a flammable liquid (UN3473) to include fuel cell cartridges containing a flammable liquid packed with or contained in equipment, and to add four new proper shipping names to the HMT to describe the range of fuel used in fuel cell cartridges. These entries are (1) water-reactive substances (UN3476); (2) corrosive substances (UN3477); (3) liquefied flammable gas (UN3478); and (4) hydrogen in metal hydride (UN3479). Readers should note that liquefied flammable gases and hydrogen in a metal hydride are both Division 2.1 materials used in fuel cell cartridges. However, the provisions necessary for the safe transportation of these articles are quite different and therefore, it is necessary to distinguish them with separate shipping descriptions.

A new entry “Fuel cell cartridges

or

Fuel cell cartridges contained in equipment

or

Fuel cell cartridges packed with equipment,

containing corrosive substances,

” UN3477, would be added.

The proper shipping name for the entry “Fuel cell cartridges,

containing flammable liquids,

” UN3473, would be revised in Column (2) to read “Fuel cell cartridges

or

Fuel cell cartridges contained in equipment

or

Fuel cell cartridges packed with equipment, containing flammable liquids.” This revision appears as a “Remove/Add” in this rulemaking.

A new entry “Fuel cell cartridges

or

Fuel cell cartridges contained in equipment

or

Fuel cell cartridges packed with equipment,

containing hydrogen in metal hydride,

” UN3479, would be added.

A new entry “Fuel cell cartridges

or

Fuel cell cartridges contained in equipment

or

Fuel cell cartridges packed with equipment,

containing liquefied flammable gas,

” UN3478, would be added.

A new entry “Fuel cell cartridges

or

Fuel cell cartridges contained in equipment

or

Fuel cell cartridges packed with equipment,

containing water-reactive substances,

” UN3476, would be added.

The entry “Gasohol,” NA1203, would be revised in Column (7) by adding Special provision “177” to indicate that mixtures of gasoline and ethanol with less than 10 percent ethanol for use in internal combustion engines (e.g., automobiles) must be assigned the PG II entry regardless of variations in volatility.

The entry “Gasoline,” UN1203, would be revised in Column (7) by adding Special provision “177” to indicate that gasoline for use in an internal combustion engine (e.g., automobiles) must be assigned the PG II entry regardless of variations in volatility.

The proper shipping name for the entry “Hydrogen in a metal hydride storage system,” UN3468, would be revised in Column (2) to read “Hydrogen in a metal hydride storage

system

or

Hydrogen in a metal hydride storage system contained in equipment

or

Hydrogen in a metal hydride storage system packed with equipment.” This revision appears as a “Remove/Add” in this rulemaking.

A new entry “1-Hydroxybenzotriazole, anhydrous,

dry or wetted with less than 20 percent water, by mass,

” UN0508, would be added.

A new entry “1-Hydroxybenzotriazole, anhydrous, wetted

with not less than 20 percent water, by mass,

” UN3474, would be added.

The entry “Hypochlorite solutions,” UN1791, would be revised by adding the PG III description and associated packaging provisions to Columns (5) and (8), respectively. The PG III information was inadvertently omitted in a final rule under Docket HM-215I (71 FR 78596; December 29, 2006). This revision appears as a “Remove/Add” in this rulemaking.

The entry “Magnesium nitrate,” UN1474, would be revised in Column (7) by adding a new Special provision “332.” Special provision “332” specifies magnesium nitrate hexahydrate is not subject to the HMR. Testing conducted by independent laboratories on magnesium nitrate hexahydrate in accordance with Test O.1:

Test for Oxidizing Solids

of the

UN Manual of Tests and Criteria

indicated magnesium nitrate hexahydrate does not have a burning rate to meet the criteria as a Division 5.1 oxidizer.

The hazardous materials description for the entry “Nitric acid,

other than red fuming, with not more than 70 percent nitric acid,

” UN2031, PG II would be revised in Column (2) to read “Nitric acid, other than red fuming, with at least 65 percent, but not more than 70 percent nitric acid” to conform with proper shipping names that have similar descriptions (e.g., UN3366). This entry would also be revised in Column (7) by adding Special provision “IP15,” and in Column (10B) by removing vessel stowage codes “44,” “110,” and “111,” and adding “74” in their place. Special provision “IP15” specifies that for UN2031 with more than 55% nitric acid, the use of rigid plastic IBCs and composite IBCs with a rigid plastic inner receptacle would be authorized for two years from the date of manufacture of the IBC. Finally, the entry would be revised by adding a Division 5.1 subsidiary hazard label to column (6). This revision appears as a “Remove/Add” in this rulemaking.

A new entry “Nitric acid,

other than red fuming, with less than 65 percent nitric acid,

” UN2031, PG II would be added.

The entry “Nitrocellulose, solution, flammable

with not more than 12.6 percent nitrogen, by mass, and not more than 55 percent nitrocellulose,

” UN 2059, PG II and PG III, would be revised in Column (7) by adding a new Special provision “198.” Special provision “198” authorizes nitrocellulose solutions containing less than 20% nitrocellulose to be transported as paint or printing ink.

The entry “Organometallic substance, liquid, water-reactive, flammable,” UN3399, would be revised in Column (10A) by removing vessel stowage location code “E” and adding “D” to harmonize with the IMDG Code and SOLAS. Amendments were also made to SOLAS Chapter II-2/Regulation 19 strictly prohibiting the stowage of 4.3 liquids having a flashpoint less than 23 °C under deck or in enclosed roll-on/roll-off (ro-ro) vessel spaces. SOLAS Chapter II-2/Regulation 19 sets out fire-fighting construction and equipment requirements for vessels carrying dangerous goods. We believe this proposed amendment is necessary to avoid the risk of a carrier stowing a package in an enclosed space that is not properly equipped for a Class 4.3 material with a subsidiary Class 3 and a flashpoint less than 23 °C. When a flammable liquid with a flashpoint less than 23 °C is stowed under deck, the space must be ventilated but cannot have electrical equipment in the space. In most cases, natural or mechanical ventilation is used. However, powered ventilation is required for Class 4.3 under deck due to the risk of moisture in the air and the entry of sea water into the hold through the ventilation openings. This proposed change would prohibit only UN3399 from under deck stowage. All other Class 4.3 liquids, with a subsidiary Class 3 and flashpoint less than 23 °C, are not permitted under deck or in enclosed ro-ro spaces under the IMDG Code.

The proper shipping name for the entry “Pentaerythrite tetranitrate mixture, desensitized, solid, n.o.s.,” UN3344, would be revised in Column (2) to read “Pentaerythrite tetranitrate mixture, desensitized, solid, n.o.s.

or

Pentaerythritol tetranitrate mixture, desensitized, solid, n.o.s.

or

PETN mixture, desensitized, solid, n.o.s.,” to conform to proper shipping names that have similar descriptions (e.g., UN0411). This revision appears as a “Remove/Add” in this rulemaking.

The entry “Polychlorinated biphenyls, solid,” UN3432 would be revised in Column (7) by adding Special provisions “IP2” and “IP4” for consistency with similar requirements for “Polyhalogenated biphenyls, solid

or

Polyhalogenated terphenyls, solid,” UN3152. Special provisions “IP2” and “IP4” require IBCs other than metal or rigid plastic to be offered for transportation in a closed freight container or closed transport vehicle and require flexible, fiberboard, or wooden IBCs to be sift-proof and water-resistant or be fitted with a sift-proof or water-resistant liner, respectively.

The entries “Potassium persulfate,” UN1492 and “Sodium persulfate,” UN1505, would be revised in Column (10B) by removing vessel stowage code “56” and adding “145.”

The proper shipping name for the entry “Trinitrophenol, wetted,” UN1344, would be revised in Column (2) to read “Trinitrophenol,

or

Picric acid, wetted,” to conform to proper shipping names that have similar descriptions (e.g., UN3364). This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Trinitrotoluene, wetted,” UN1356, would be revised to read “Trinitrotoluene, wetted

or TNT, wetted

,” to conform to proper shipping names that have similar descriptions (e.g., UN3366). This revision appears as a “Remove/Add” in this rulemaking.

A new entry “Signals, distress,

ship

,” UN0505, would be added.

A new entry “Signals, distress,

ship

,” UN0506, would be added.

A new entry “Signals, smoke,” UN0507, would be added.

A new entry “Powder, smokeless,” UN0509, would be added. A discussion of changes to § 173.62 provides an explanation of the addition of this new entry.

Currently, no portable tank instructions are assigned to “Water-reactive liquid, corrosive, n.o.s.,” UN3129; “Water-reactive liquid, n.o.s.,” UN3148; or to the PG I entries for “Water reactive solid, corrosive, n.o.s.,” UN3131; and “Water-reactive solid, n.o.s.,” UN2813. We would add portable tank assignments (portable tank special provisions) consistent with the “Guidelines for Assigning Portable Tank Requirements to Substances in Classes 3 to 9.” These assignments are consistent with similarly classed entries in the HMT. The entries would be revised in Column (7) as follows:

The entry “Water-reactive liquid, corrosive, n.o.s.,” UN3129, PG I, would be revised by adding Special provisions “T14,” “TP2,” and “TP7.”

The entry “Water-reactive liquid, corrosive, n.o.s.,” UN3129, PG II, would be revised by adding Special provisions “T11” and “TP2.”

The entry “Water-reactive liquid, corrosive, n.o.s.,” UN3129, PG III, would be revised by adding Special provisions “T7” and “TP1.”

The entry “Water-reactive liquid, n.o.s.,” UN3148, PG I, would be revised by adding Special provisions “T9,” “TP2,” and “TP7.”

The entry “Water-reactive liquid, n.o.s.,” UN3148, PG II, would be revised by adding Special provisions “T7” and “TP2.”

The entry “Water-reactive liquid, n.o.s.,” UN3148, PG III, would be revised by adding Special provisions “T7” and “TP1.”

The entry “Water-reactive solid, corrosive, n.o.s,” UN3131, PG I, would be revised by adding Special provisions “T9”, “TP7,” and “TP33.”

The entry “Water-reactive solid, n.o.s.,” UN2813, PG I, would be revised by adding Special provisions “T9”, “TP7,” and “TP33.”

The proper shipping name for the entry “Xenon,” UN2036, would be revised to read “Xenon, compressed,” UN2036, for consistency with proper shipping names for other compressed gases (i.e., inert gases). This revision appears as a “Remove/Add” in this rulemaking.

Appendix B to § 172.101

Appendix B to § 172.101 lists Marine Pollutants regulated under the HMR and prescribes requirements for classifying and describing a marine pollutant. In this NPRM, we are proposing to amend the introductory text and the List of Marine Pollutants to add an allowance for the use of the revised classification criteria for materials toxic to the aquatic environment (marine pollutants) contained in the IMDG Code. Additionally, under Docket HM-215D (66 FR 33316; June 21, 2001 and 67 FR 15743; April 3, 2002), a number of entries were removed because they no longer met the criteria for a “Marine Pollutant.” However, some entries were inadvertently retained. Therefore, we are proposing to remove the following entries from the List of Marine Pollutants: “5-Ethyl-2-picoline,” “Ethyl propenoate, inhibited” “Isopropenylbenzene,” and “2-Phenylpropene.”

Section 172.102

Section 172.102 lists a number of special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. For consistency with international regulations, we propose to amend § 172.102, Special provisions, as follows:

Special provision “36” specifies maximum net quantity limits per package for the transport of medicines classified as flammable or toxic (i.e., UN1851, UN3248, and UN3249). These limits are inconsistent with the packaging limits authorized in limited quantity exceptions for these materials. The entries were initially introduced to the UN Recommendations with a special provision limiting the materials to PG II and III and requiring the materials to have a maximum net quantity per package of 5 L or 5 kg. However, since then, these materials have been authorized in the HMR as limited quantities and consumer commodities. This has created an inconsistency between the quantity limits per package in Special provision “36” and the limits outlined in the limited quantity exceptions. Therefore, to resolve this inconsistency, we would remove Special provision “36.”

Special provision “137” specifies conditions for exception from the HMR for certain types of vegetable fibers. We propose to revise the Special provision to include “tampico fiber, dry” having a minimum baling density of 360 kg/m

3

as being eligible for this exception.

Special provision “138” specifies insolubility criteria for lead compounds. We are proposing to revise the Special provision to add clarifying language that specifies lead compounds meeting the insolubility criteria outlined in the Special provision are not subject to the HMR unless they meet the criteria for one of the other hazard classes.

Special provision “150” specifies composition limits for uniform mixtures of fertilizers containing ammonium nitrate as the main ingredient. We are proposing to revise the composition limits outlined in paragraph (b) of the provision by adding the words “and/or mineral calcium sulphate” after “dolomite.”

In the final rule under Docket HM-215G (69 FR 76044; December 20, 2004), we added new generic entries to describe Organometallic materials consistent with descriptions added to the UN Recommendations, but allowed the continued use of several specific Organometallic entries (e.g., Dimethylzinc, UN1370). We anticipated removing these remaining entries from the HMT by January 1, 2007. The entries were to be removed because they were superseded by the addition of the more appropriate generic entries. However, they currently remain in the HMT. Therefore, we are proposing to remove the remaining specific Organometallic entries for consistency with the original intent of HM-215G to remove the entries by January 1, 2007. In addition, we are proposing to remove Special provision “173.” Special provision “173” provides the option to use an appropriate generic entry listed in the HMT to describe the material and was only assigned to Organometallic materials. Since new generic entries have been added to the HMT, and because the Special provision only applies to entries that are to be removed, this Special provision would be rendered obsolete.

Special provision “177” requires materials for use in internal combustion engines (e.g., in automobiles) to be assigned the PG II entry regardless of variations in volatility of the material. The Special provision is currently assigned to the entry “Ethanol and gasoline mixture

or

Ethanol and motor spirit mixture

or

Ethanol and petrol mixture,” UN3475. However, the provision also applies to the entries “Gasohol,” NA1203 and “Gasoline,” UN1203. For consistency with UN Recommendations that assign similar provisions to gasoline and mixtures of ethanol and gasoline, and for uniform application of the provision, we are proposing to revise Special provision “177” to specify its application to both gasoline and ethanol/gasoline mixtures.

Special provision “188” specifies conditions for exception from the HMR for small lithium cells and batteries. We propose to revise the Special provision to require the reporting of incidents, including those which result in the production of smoke, sparks, or a dangerous evolution of heat.

Special provision “189” specifies conditions for exception from the HMR for medium lithium cells and batteries. We propose to revise the Special provision to require the reporting of incidents including those which result in the production of smoke, sparks, or a dangerous evolution of heat.

A new Special provision “198” would be added to permit nitrocellulose solutions containing less than 20% nitrocellulose to be transported as paint or printing ink, as applicable.

A new Special provision “237” would be added to specify that “Batteries, dry, containing potassium hydroxide solid,

electric storage

” must be prepared and packaged in accordance with the requirements of § 173.159(a), (b) and (c), and for transportation by aircraft, § 173.159(d)(2).

A new Special provision “332” would be added to specify magnesium nitrate hexahydrate is not subject to the HMR.

A new Special provision “335” would be added to clarify proper classification of mixtures of solids which are not

subject to the HMR and environmentally hazardous liquids or solids. Special provision “335” specifies these mixtures would be classified as UN3077 and may be transported under that entry provided there is no free liquid visible at the time the material is loaded or the packaging or transport unit is closed.

A new Special provision “IP15” would be added to indicate that for “Nitric acid,” UN2031, with more than 55% nitric acid, the use of rigid plastic IBCs and composite IBCs with a rigid plastic inner receptacle is permitted for two years from the date of manufacture of the IBC.

A new Special provision “N90” would be added to prohibit the use of metal packagings for transport of “1-Hydroxybenzotriazole, anhydrous, wetted

not less than 20 percent water, by mass

,” UN3474.

Special provision “TP12” would be removed. This provision states “this material is considered highly corrosive to steel.” The phrase “highly corrosive to steel” is not defined by any specific criteria. Further, “TP12,” unlike other TP codes, is simply a statement and does not apply any regulatory requirement. It is unclear if all highly corrosive materials are assigned Special provision “TP12” or if this statement provides any useful guidance for selecting an appropriate portable tank. Therefore, we propose to delete Special provision “TP12” from § 172.102(c)(8)

“TP” Codes

.

Section 172.202

Section 172.202 establishes the requirements for the description of hazardous materials on shipping papers. The UN Recommendations do not require the subsidiary hazard to be indicated on the shipping paper when a subsidiary hazard label is not required. We agree that the requirement to indicate the subsidiary hazard on the shipping paper should be consistent with the requirement to apply a subsidiary risk label. Therefore, we propose to harmonize with the UN Recommendations by making an appropriate revision to § 172.202(a)(2) to specify that the subsidiary hazard class or division number is not required to be entered when a corresponding subsidiary hazard label is not required. We also propose to revise paragraph (a)(4) to clarify that the packing group is not required to be indicated on a shipping paper for explosives, self-reactive substances, batteries other than those containing sodium, and organic peroxides in addition to entries that are not assigned a packing group. In addition, we also propose to revise paragraph (a)(6) to clarify that for all articles where “No Limit” is shown in Column (9A) or (9B) of the HMT, the quantity must be the gross mass, following the letter “G.”

Section 172.322

Section 172.322 specifies marking requirements for vessel transportation of each non-bulk packaging and bulk packaging that contains a marine pollutant. In this NPRM we are proposing to adopt the new marking for marine pollutants that has been incorporated into the IMDG Code. We are proposing mandatory use of this marking one year after publication of the final rule. Commenters are requested to submit remarks regarding the impact of adopting a one-year compliance date. As part of their petition to PHMSA (P-1516), DGAC recommended inclusion of the new marine pollutant mark in the HMR.

Section 172.400a

Section 172.400a establishes exceptions for labeling requirements. Currently, the UN Recommendations do not require a package labeled with a Division 4.2 label to bear a Division 4.1 subsidiary hazard label. This is primarily because the Division 4.2 label communicates a more severe spontaneously combustible flammability hazard and as such the Division 4.1 label is not considered to provide additional hazard communication value. In this NPRM, we propose to revise paragraph (c) to include a similar exception.

Section 172.401

Section 172.401 establishes specific requirements for prohibited labeling. We received a petition (P-1494) from the DGAC requesting that PHMSA specify that pictograms described in the United Nations Globally Harmonized System of Classification and Labelling are not prohibited under the HMR. In its petition, DGAC states that the UN Economic and Social Council's Committee of Experts on the Transport of Dangerous Goods and on the GHS established the goal of implementing the GHS in 2008. DGAC contends that to facilitate international trade, it is important that packages bearing GHS pictograms are acceptable for transportation in the United States. DGAC also states that GHS pictograms may already appear on packages used in transportation and cites Annex 7 of the GHS showing examples of GHS pictograms appearing on drums. Pictograms prescribed by GHS are not identical to labels required under the UN Recommendations or the HMR; such pictograms typically consist of a red bordered diamond with a hazard symbol such as a “flame” or a “skull and cross-bones.” DGAC expects these GHS pictograms to be smaller in size than the transport labels required under the HMR and international regulations.

We agree with DGAC that the GHS pictograms should be permitted on packages intended for transportation in the United States to facilitate international trade. We also believe that such a revision will not diminish the current level of safety affecting these materials. Therefore, in this NPRM, we are proposing to amend § 172.401 which prohibits the transportation of packages bearing any mark or label that could be confused or conflict with a label required under the HMR, to specify that restrictions under this section do not apply to packages labeled in conformance with the GHS.

Section 172.446

Section 172.446 specifies the requirements for Class 9 labels. Unlike the HMR, the international regulations do not have a solid horizontal line dividing the lower and upper half of the Class 9 label. The Class 9 label in § 172.446 depicts a solid horizontal line. For consistency with international regulations and to provide relief to the regulated community, in this NPRM, we propose to revise paragraph (b) to allow a solid horizontal line as an option.

Section 172.448

Section 172.448 establishes the specifications for the “CARGO AIRCRAFT ONLY” label. For consistency with international regulations, in this NPRM, we are proposing to replace the current label. The symbol of this label is not altered; however the text is revised to read, “Forbidden in Passenger Aircraft.” In addition, we propose to authorize continued use of the current label until January 1, 2013.

Part 173

Section 173.4

Section 173.4 establishes the requirements for exceptions to the HMR for small quantities of Class 3, Division 4.1, Division 4.2 (PG II and III), Division 4.3 (PG II and III), Division 5.1, Division 5.2, Division 6.1, Class 7, Class 8, and Class 9 materials. Recently, provisions for the transport of hazardous materials in excepted quantities were incorporated into the UN Regulations and the IMDG Code. These provisions are based largely on existing excepted quantity provisions provided by the ICAO TI. The provisions permit certain small quantities of hazardous materials

to be transported with minimal regulation, but ensure a high level of safety through stringent packaging and testing requirements.

The excepted quantity provisions adopted within the UN Regulations and the small quantity provisions of the HMR are similar, but not identical. For example, differences include variations in the authorized hazard classes and packing groups; differences in the quantities authorized per package; and differences in marking, documentation and incident reporting requirements. We believe that aligning the existing small quantity provisions in the HMR with the excepted quantity provisions for air and vessel transportation will enhance harmonization and increase safety. Therefore, for consistency with the UN Recommendations and to increase safety and facilitate international transportation, in this NPRM, we are proposing to adopt a new excepted quantity provision for transportation by aircraft and vessel into a new § 173.4a. We stress that we are not proposing to remove the existing small quantity provisions in 173.4, but rather proposing to limit the use of these provisions to domestic highway and rail transportation. We also propose to move the exception for small quantities—less than 1 gram for solids and less than 1 milliliter for liquids per inner packaging currently found in § 173.4(e)—to a new § 173.4b. This would align the requirements of the HMR with those of the ICAO TI and the IMDG Code for transport by air and vessel, while maintaining the existing small quantity exceptions for domestic highway and rail transport. We welcome comments regarding the potential for confusion and any cost impacts resulting from this change. Small quantity exceptions would be separated into the following three sections:

(1) Section 173.4 for small quantities transported by domestic highway and rail only;

(2) Section 173.4a for excepted quantities transported by aircraft and vessel; and

(3) Section 173.4b for de minimis quantities of material (less than 1 gram for solids and less than 1 milliliter for liquids per inner packaging) transported by all modes.

In addition, we considered extending the allowance for small quantity exceptions to fuel cells. Fuel cells by design offer a high degree of integrity and often contain a relatively small amount of hazardous material. However, we wish to maintain the level of safety ensured by the rigorous testing and packaging required for fuel cell cartridges of various types required by the provisions proposed in § 173.230. Therefore, in this NPRM, we propose to revise § 173.4(d) to specify that fuel cell cartridges are not eligible for the small quantity exceptions.

Sections 173.12 and 173.134

Section 173.12 establishes exceptions for shipments of waste materials. Section 173.134 establishes definitions, classification criteria, and exceptions for Division 6.2 (infectious substances). On January 28, 2008, we published a final rule under Docket HM-218D (73 FR 4699) that added a new paragraph (f) in § 173.12 to specify that household waste, as defined in § 171.8, is not subject to the HMR. In addition, we revised a household waste exception in § 173.134(b)(13)(i) to reference the household waste definition in § 171.8. Upon publication of the final rule, we received a comment expressing concern with the implementation of these amendments. The commenter, Regulatory Resources Inc., expressed concern that this amendment was too broad and would allow entities such as large hotels undergoing renovation to offer their waste, including hazardous materials, for transportation as non-regulated materials. This was not our intention. In an effort to reduce confusion, we are proposing to revise these two sections to specify that household waste is not subject to the HMR when transported in accordance with applicable state, local, or tribal requirements.

Section 173.24b

Section 173.24b establishes additional general requirements for bulk packagings. In this NPRM, we are proposing to add a new paragraph to clarify that IBCs and Large Packagings that are not designated and tested for stacking may not be stacked during transportation. In addition, we are also proposing to clarify that IBCs and Large Packagings that are intended for stacking may not have more weight superimposed upon them than is marked on the packaging.

Section 173.62

Section 173.62 establishes specific packaging requirements for explosives. We received a petition (P-1505) from the Sporting Arms & Ammunition Manufacturers' Institute (SAAMI) requesting that PHMSA include a new proper shipping name “Powder, smokeless,” UN0509, to the § 172.101 HMT and to include the new entry among the explosives assigned Packaging Instruction 114(b) in § 173.62. In its petition, SAAMI states that the UN Sub-Committee of Experts on the Transport of Dangerous Goods adopted a proposal by SAAMI to add the new entry to its Dangerous Goods List and a related change to the packing provisions in the UN Recommendations.

Typically, we harmonize with the UN following the formal adoption of a proposal into the published version of the UN Recommendations. However, because of the limited scope of this amendment and because the new entry allows for a more accurate classification of smokeless powder, we are proposing to amend § 173.62 to include a new entry UN0509 to the Explosives Table, which specifies the Packing Instruction assigned to each explosive, and to add a reference to the new entry in Packing Instruction 114(b). We also propose to include a “D” in column 1 of the table entry to indicate that the entry is appropriate for domestic use but may not be appropriate for international transportation. Following the adoption of the entry within the IMDG Code and the ICAO TI, this indication would no longer be necessary, and it is our intention to remove the “D” in a future rulemaking consistent with the adoption of the entry within the aforementioned international regulations.

Additionally, consistent with our proposal to add new entry “1-Hydroxybenzotriazole, anhydrous, dry or wetted with less than 20% water, by mass,” Division 1.3C, UN0508, to the HMT, we are adding this material under Packing Instruction “114(b).” We propose to revise this instruction to specify that, for UN0508, inner packagings are not required if drums are used as the outer packaging. We also propose to add a new sentence under Packing Instruction 114(b) to prohibit metal packagings for UN0508. In addition, we propose to clarify that inner packagings are not necessary if drums are used as the outer packaging for UN0160 and UN0161.

Section 173.115

The HMR define a Division 2.2 material (non-flammable, nonpoisonous compressed gas—including compressed gas, liquefied gas, pressurized cryogenic gas, compressed gas in solution, asphyxiant gas and oxidizing gas) as any material or mixture that “exerts in the packaging an absolute pressure of 280 kPa (40.6 psia) or greater at 20 °C (68 °F), or is a cryogenic liquid, and does not meet the definition of Division 2.1 or 2.3.” Recently, the definition of Division 2.2 gases in the UN Recommendations was amended to include all liquefied gases, irrespective of their pressure. This amendment was made on the basis that certain liquefied gases that pose no pressure hazard at

ambient pressures and temperatures may exhibit a pressure hazard under conditions normally encountered in transport, such as increased temperature. In addition, the pressure of a Division 2.2 gas was amended to be 302 kPa absolute (43.8 psi); a slight increase from the current threshold of 280 kPa absolute (40.6 psi). In order to enhance safety and to maintain global uniformity with respect to the classification of Division 2.2 gases, we are proposing to adopt these amendments. Additionally, in this NPRM, we are proposing to re-designate current paragraph (k) as a new paragraph (l). The new paragraph (k) would read “For Division 2.2 gases, the oxidizing ability shall be determined by tests or by calculation in accordance with ISO 10156:1996 and ISO 10156-2:2005 (IBR, see § 171.7 of this subchapter.)” This revision would require the use of specific test and calculation methods for a more accurate determination of the oxidizing ability of Division 2.2 gases. Additionally, we propose to revise § 171.7 to incorporate these ISO standards.

Section 173.137

Section 173.137 establishes packing group criteria for corrosive (Class 8) materials. In this NPRM, we are proposing to add a note to clarify that an additional test on the second material is not required when the initial test on either steel or aluminum indicates the material is corrosive.

Sections 173.162, 173.164, 173.166, 173.186, 173.306, 173.307, 175.10

The ICAO TI recently adopted new amendments to require additional information to be included on the “air waybill” for certain hazardous materials. Currently, a number of hazardous materials are excepted from the full regime of the hazard communication requirements that generally apply to the transport of hazardous materials in the ICAO TI when certain conditions are met to ensure an appropriate level of safety. An example is non-spillable batteries, which are excepted if certain conditions specified in Special provision A67 of the ICAO TI are met. Frequently, the ICAO TI contains more restrictive or additional requirements and conditions that apply for air transportation. The special provisions that address these requirements contain packaging provisions, prohibitions, and exceptions from requirements for particular quantities or forms of materials. Many shippers may not be familiar with the regulations and special requirements for the transportation of dangerous goods by air as some shippers may only occasionally ship dangerous goods by air. Frequently, these shippers will offer hazardous materials in the same manner received when the initial mode of transport may have been surface transport.

Shipments of undeclared or improperly prepared hazardous materials, particularly in the air mode, pose a significant safety threat. Improper packing and handling of these shipments could result in a release or a failure to communicate the inherent hazard or risk of the materials to emergency responders and transportation workers. Improperly packaged batteries, electrical devices, and articles such as lighters which contain ignition devices can serve as a source of fire if damaged during handling and transport. The issue of undeclared dangerous goods has received significant attention in recent years. The actual number of undeclared hazardous materials shipments is not known but when reported is generally related to an incident or accident in air transport.

In addition, operator and freight forwarder personnel, particularly those accepting general cargo (non-hazardous materials) are trained to be alert for undeclared or “hidden” hazardous materials. Consignments of packages marked with key words such as “lithium batteries,” “chemicals,” and the like, or with certain markings and labels may be challenged by carriers or freight forwarders and acceptance delayed, while the shipper verifies that the goods are not regulated. Infrequent consignors and those that have not received appropriate training must still be aware of the applicable requirements. The air acceptance process is based on a system of checks and balances that ensures that hazardous materials are properly prepared in accordance with the ICAO TI and in full compliance with all applicable safety requirements. When hazardous materials are offered for transportation in compliance with all applicable requirements, the risk in transport is significantly reduced. To enable air carriers to ascertain that a shipment conforms to applicable requirements, in this NPRM, for transportation by aircraft, we are proposing a number of amendments consistent with recently adopted amendments in the ICAO TI. Specifically we are proposing to require the consignor to include on the “air waybill” an indication that a hazardous material or article has met the applicable conditions for transport. This indication will allow freight forwarders and operators to verify that the consignor is aware of, and has complied with, the applicable regulatory requirements. Additionally, it will reduce the likelihood of unnecessary carrier delays by improving communication.

Section 173.196

Section 173.196 establishes packaging requirements for Category A infectious substances. In this NPRM, we are proposing to revise paragraphs (a)(1) and (a)(2) by replacing the word “watertight” with “leakproof.” These proposed revisions are consistent with international regulations. No substantive changes to the packaging requirements are intended by this wording change.

Section 173.206

In this rulemaking, we are proposing to add a new packaging section (§ 173.206) to the HMR to harmonize with new packaging requirements for water-reactive chlorosilanes adopted in the Fifteenth revised edition of the UN Recommendations. The enhanced packaging requirements more adequately address the water-reactive properties of these materials. We are also evaluating whether packaging for other water-reactive materials should also be enhanced. Depending on the outcome of our evaluation, we may propose further amendments to the UN Recommendations and the HMR. In the meantime, the entries affected by the proposed addition of new packaging § 173.206 are as follows:

UN1724 Allyltrichlorosilane, stabilized

UN1728 Amyltrichlorosilane

UN1747 Butyltrichlorosilane

UN1753 Chlorophenyltrichlorosilane

UN2986 Chlorosilanes, corrosive, flammable, n.o.s.

UN2987 Chlorosilanes, corrosive, n.o.s.

UN2985 Chlorosilanes, flammable, corrosive, n.o.s.

UN3362 Chlorosilanes, toxic, corrosive, flammable, n.o.s.

UN3361 Chlorosilanes, toxic, corrosive, n.o.s.

UN1762 Cyclohexenyltrichlorosilane

UN1763 Cyclohexyltrichlorosilane

UN2434 Dibenzyldichlorosilane

UN1766 Dichlorophenyltrichlorosilane

UN1767 Diethyldichlorosilane

UN1162 Dimethyldichlorosilane

UN1769 Diphenyldichlorosilane

UN1771 Dodecyltrichlorosilane

UN2435 Ethylphenyldichlorosilane

UN1196 Ethyltrichlorosilane

UN1781 Hexadecyltrichlorosilane

UN1784 Hexyltrichlorosilane

UN2437 Methylphenyldichlorosilane

UN1250 Methyltrichlorosilane

UN1799 Nonyltrichlorosilane

UN1800 Octadecyltrichlorosilane

UN1801 Octyltrichlorosilane

UN1804 Phenyltrichlorosilane

UN1816 Propyltrichlorosilane

UN1298 Trimethylchlorosilane

UN1305 Vinyltrichlorosilane, stabilized

Section 173.222

Section 173.222 specifies the requirements for dangerous goods in machinery or apparatus. Paragraph (c) of this section specifies the total net quantity limits contained in one item of machinery or apparatus. Consistent with the ICAO TI, we are proposing to prohibit Division 2.2 gases with subsidiary risks and refrigerated liquefied gases for transportation by aircraft as dangerous goods in machinery or apparatus.

Section 173.225

Section 173.225 specifies packaging requirements and other provisions for organic peroxides. When the § 172.101 table specifies this section, the organic peroxide must be packaged and offered for transportation in accordance with the provisions of this section. Each packaging must also conform to the general requirements of Subpart B of Part 173 and to the applicable requirements of Part 178 of the HMR. Specifically, organic peroxides that require temperature control are subject to § 173.21(f). When an IBC or bulk packaging is authorized and meets the requirements of paragraph (f) or (h) of § 173.225, respectively, lower control temperatures than those specified for non-bulk packaging may be required. An organic peroxide not identified in paragraph (c), (e), or (g) of § 173.225 by technical name, or not assigned to a generic type in accordance with paragraph (b)(3) of this section, must conform to the requirements in paragraph (c) of § 173.128.

The Organic Peroxides Table specifies by technical name those organic peroxides that are authorized for transportation and not subject to the approval provisions of § 173.128. An organic peroxide identified by technical name is authorized for transportation only if it conforms to all applicable provisions of the table. In this NPRM, we are proposing to amend the Organic Peroxides Tables by adding new entries, revising current entries, and adding new Notes “29,” “30,” and “31” following the Organic Peroxides Table. New Note “29” would indicate that specific entries are not subject to the requirements of this subchapter for Division 5.2. New Notes “30” and “31” would indicate that for specific entries, organic peroxides with a boiling point greater than 130 °C (266 °F) or available oxygen less than or equal to 6.7% are acceptable. We are also proposing to add new entries to the Organic Peroxide IBC Table in paragraph (e) of this section.

The following current entries in the Organic Peroxides Table would be amended:

UN3101 tert-Amyl peroxy-3,5,5-trimethylhexanoate

UN3117 Di-(2-ethylhexyl) peroxydicarbonate [as a stable dispersion in water]

The following entries would be added to the Organic Peroxides Table:

UN3119 tert-Amyl peroxyneodecanoate

UN3119 tert-Amyl peroxypivalate

UN3106 tert-Butyl peroxy 3,5,5-trimethlyhexanoate

UN3115 Cumyl peroxyneodecanoate

Exempt Cyclohexanone peroxide(s)

UN3105 2,2-DI-(tert-amylperoxy)-butane

Exempt Dibenzoyl peroxide

UN3109 tert-Butyl peroxybenzoate

UN3103 1,1-DI-(tert-butylperoxy)-cyclohexane

UN3109 1,1-Di-(tert-Butylperoxy) cyclohexane

UN3105 1,1-DI-(tert-butylperoxy)-cyclohexane + tert-butylperoxy-2-ethylhexanoate

Exempt Di-(2-tert-butylperoxyisopropyl) benzene(s)

UN3103 1,1-DI-(tert-butylperoxy)-3,3,5-trimethylcyclohexane

UN3118 DI-2,4-dichlorobenzoyl peroxide

Exempt Di-4-chlorobenzoyl peroxide

Exempt Dicumyl peroxide

UN3119 Di-(2-ethylhexyl) peroxydicarbonate [as a stable dispersion in water]

UN3119 Di-(2-neodecanoyl-peroxyisopropyl) benzene, as stable dispersion in water

UN3115 3-Hydroxy-1,1-dimethylbutyl peroxyneodecanoate

UN3117 3-Hydroxy-1,1-dimethylbutyl peroxyneodecanoate

UN3119 3-Hydroxy-1,1-dimethylbutyl peroxyneodecanoate [as a stable dispersion in water]

UN3109 Methyl isopropyl ketone peroxide(s)

UN3107 3,3,5,7,7-Pentamethyl-1,2,4-trioxepane

A new Note “30” would be added following the Organic Peroxides Table to read:

“Diluent type B with boiling point > 130 °C (266 °F).”

A new “Note “31” would be added following the Organic Peroxides Table to read:

“Active oxygen ≤ 6.7%.”

The following entries would be revised or added to the Organic Peroxide IBC Table as follows:

UN3109 tert-Butyl peroxybenzoate, not more than 32% in diluent type A

UN3109 1,1-Di-(tert-Butylperoxy) cyclohexane, not more than 37% in diluent type A

UN3119 tert-Anyl peroxypivalate, not more than 32% in diluent type A

UN3119 tert-Butyl peroxyneodecanoate, not more than 52%, stable dispersion, in water

UN3119 Di-(2-neodecanoylperoxyisopropyl) benzene, not more than 42%, stable dispersion, in water

UN3119 3-Hydroxy-1,1-dimethylbutyl peroxy-neodecanoate, not more than 52%, stable dispersion, in water

In addition, in the Organic Peroxide Portable Tank Table, UN3119 “Di-(3,5,5-trimethyl-hexanoyl) peroxide, not more than 38% in diluent type A” would be revised, and UN3119 “tert-Amyl peroxyneodecanoate, not more than 47% in diluent type A” would be added as a new entry.

Section 173.226

Section 173.226 establishes non-bulk packaging requirements for Division 6.1 PG I, Hazard Zone A materials. In this NPRM, we are proposing to editorially revise paragraph (c) to enhance accuracy, reduce misunderstanding, and provide a more user-friendly format.

Section 173.230

Section 173.230 establishes provisions for the transportation of fuel cell cartridges containing flammable liquids. As portable electronic devices continue to evolve, developers of fuel cell technologies are considering various types of fuel sources to meet increasing power demands. In addition to the flammable liquid fuel cell cartridges currently addressed in the HMR, fuel cell technologies may employ a range of fuels, including hydrogen in a metal hydride, butane, borohydrides and formic acid. The fuels may be a gas such as hydrogen in a metal hydride or butane that meets the defining criteria for a Division 2.1 material; a solid borohydride (including formulations) that meets the defining criteria for a Division 4.3 material; or liquid or solid formulations that meet the defining criteria as a Class 8 material (e.g., sodium borohydride, or formic acid).

Provisions addressing these fuel cell technologies have already been adopted in the Fifteenth revised edition of the UN Recommendations, the ICAO TI and the IMDG Code. Additionally, we have received petitions from HMT Associates, L.L.C. (P-1517) and the U.S. Fuel Cell Council (P-1518) requesting that we align the HMR provisions for fuel cell systems and cartridges with international standards. Consistent with DOT's strategic goals of ensuring safety while utilizing 21st century technology, we are proposing to add four new proper shipping names to the HMT to describe the range of fuel used in fuel cell cartridges: “Water-reactive substances,” UN3476; “Corrosive substances,” UN3477; “Liquefied flammable gas,” UN3478; and “Hydrogen in metal hydride,” UN3479.

This proposal will provide guidance for the safe transportation of fuel cells and will introduce a greater variety of technology into the global market place. The type of hazard would not be included in the proper shipping name but, instead, would be identified by the hazard class or division (e.g., 2.1; 3; etc.). Readers should note that liquefied flammable gases and hydrogen in a metal hydride are both Division 2.1 materials used in fuel cell cartridges. However, the provisions necessary for the safe transportation of these articles are quite different and therefore, it is necessary to distinguish them with separate shipping descriptions. In addition, because fuel cell cartridges may contain any number of hazardous materials, we also propose to revise § 173.230 to provide a comprehensive system to address the requirements for fuel cell cartridges containing various hazardous materials. Paragraph (a) of this section would outline requirements applicable to fuel cell cartridges containing any authorized fuel, while paragraphs (b), (c), and (d) would outline additional requirements unique to each fuel cell type. Further, paragraph (e) would provide a list of authorized packages and configurations, with paragraph (f) describing the additional requirements for the transportation of fuel cell cartridges by aircraft, including transport by passengers and crewmembers. Finally, paragraphs (g) and (h) would outline the limited quantity and consumer commodity provisions, respectively.

In addition, for consistency with the ICAO TI in regard to the transportation of fuel cell cartridges, in § 175.10, we propose to expand the types of fuel cell cartridges permitted in carry-on baggage by airline passengers and crew to include water-reactive substances and hydrogen in a metal hydride. Fuel cells permitted for transport by passengers and crew must continue to conform to certain rigorous performance criteria outlined in § 175.10.

Section 173.304(b)

Section 173.304(b) specifies additional requirements for liquefied compressed gases in UN pressure receptacles. In a final rule published on June 12, 2006, under Docket PHMSA-2005-17463 (HM-220E) entitled “UN Cylinders,” (71 FR 33858), we adopted the filling limits for liquefied compressed gases and mixtures in UN pressure receptacles specified in the UN Recommendations. Based on a review of the P200 filling limits, we lowered the filling limits for ten gases and added a table under paragraph (c) in § 173.304b to specify the revised filling limits. The UN Recommendations subsequently adopted these revised filling limits. Since there is no longer a need for the revised filling limits for liquefied compressed gases in the HMR, in this NPRM, we propose to remove paragraph (c) of § 173.304b in its entirety. Current paragraphs (d) and (e) would be re-designated accordingly.

Section 173.306

Section 173.306 establishes transportation requirements for limited quantities of compressed gases. The ICAO TI have incorporated provisions for the transportation of limited quantities of compressed gases in plastic aerosols to keep abreast with new technology and on the basis that plastic aerosols provide a level of safety equivalent to other authorized packagings. Although the HMR do not currently allow the transportation of these plastic aerosols by air, PHMSA has issued several Special Permits authorizing such transportation with certain restrictions, such as shipping paper, labeling, marking, and packaging requirements. We have reviewed these materials from a risk/safety perspective, and based on an equivalent level of safety determination established by the Special Permits, and a record of the safe transportation of plastic aerosols, we are proposing to adopt requirements for the construction and use of plastic aerosols within the HMR. We believe this proposed amendment will also enhance international harmonization and provide relief to the regulated community by reducing the need for Special Permits to transport these materials. A new aerosol specification “2S” is proposed for inclusion in § 173.306, with corresponding requirements as detailed in a new § 178.33b.

We are also proposing to revise paragraph (j) to require the consignor to include on an air waybill or other shipping documentation an indication that a hazardous material or article has met the applicable conditions for air transport. This indication will allow freight forwarders and operators to verify that the consignor is aware of, and has complied with, the applicable regulatory requirements.

Section 173.307

Section 173.307 specifies exceptions for compressed gases. The ICAO TI have Special provision (A69) excepting from regulation articles containing minimal amounts of gallium, mercury, or inert gas. Based on a review that indicated the special provision was not assigned appropriately among all inert gases, ICAO proposed to assign the special provision to all the inert gases concerned. The HMR do not currently have a similar provision for inert gases, although the HMR have the same exception for articles containing gallium or mercury in §§ 173.162 and 173.164, respectively. Rather than adding a new special provision, we are proposing to add to this section a general exception for articles containing inert gas. This exception would specify that manufactured articles or apparatuses, each containing not more than 100 mg of inert gas and packaged so that the quantity of inert gas per package does not exceed 1 g, are not subject to the HMR.

Section 173.322

Section 173.322 establishes specific packaging requirements for ethyl chloride (UN1037). Recently, PHMSA became aware of an incident involving an aluminum compressed gas cylinder containing ethyl chloride. The investigation of this incident suggests the possibility that a reaction occurred within the aluminum cylinder as a result of the incompatibility between the ethyl chloride gas and the aluminum cylinder. The HMR currently prohibit the transportation of ethyl chloride in UN pressure receptacles constructed of aluminum alloy but have no such prohibition for specification cylinders. To address this occurrence, in this NPRM, we are proposing to prohibit the filling of specification cylinders made of aluminum alloy (e.g., DOT 3AL) with ethyl chloride.

Part 175

Section 175.10

Section 175.10 establishes exceptions for the transportation of certain hazardous materials by aircraft, including hazardous materials that may be carried by passengers, crewmembers, and air operators in checked or carry-on baggage. In this NPRM, we are proposing to revise the exception for dry ice in paragraph (a)(10) to clarify that dry ice carried in both carry-on and checked baggage is subject to the approval of the aircraft operator.

As noted under the discussion in § 173.230, we are also proposing to revise paragraph (a)(18) to expand the types of fuel cell cartridges permitted in carry-on baggage by airline passengers and crew. Fuel cells permitted for transport by passengers and crewmembers must continue to conform to the rigorous performance criteria outlined in § 175.10.

In addition, we are proposing to revise paragraph (a) and add a new paragraph (c) to specify that the

requirements to submit incident reports under §§ 171.15 and 171.16 of this subchapter apply to the air carrier.

Section 175.33

Section 175.33 establishes requirements for shipping papers and notification of pilot-in-command for hazardous materials transported by aircraft. We are proposing several amendments to strengthen and clarify these requirements, harmonize with international standards, and address a recommendation of the National Transportation Safety Board (NTSB) arising out of a 2006 incident.

On February 7, 2006, United Parcel Service Company (UPS) flight 1307, landed at its destination, Philadelphia International Airport, after a cargo smoke indication in the cockpit. The flight crewmembers evacuated the airplane upon landing and sustained minor injuries. The aircraft and most of the cargo, however, were destroyed. In its investigation of the incident, the NTSB determined that UPS personnel were able to retrieve the notice to captain (NOTOC), which contained information on the hazardous materials on board the airplane. However, NTSB also determined that personnel did not provide emergency responders with detailed information about the hazardous materials on board the airplane in a timely manner, and such a delay could have potentially created a safety hazard. As a result of its findings, NTSB recommended that PHMSA “require aircraft operators that transport hazardous materials to immediately provide consolidated and specific information about hazardous materials on board an aircraft, including proper shipping name, hazard class, quantity, number of packages, and location to on-scene emergency responders upon notification of an accident or incident.” (NTSB Recommendation A-07-106)

The HMR currently require aircraft operators to make available, upon request, to an authorized official of a Federal, State, or local government agency, including an emergency responder, at reasonable times and locations, the documents or information required by § 175.33, which include shipping papers and notification of pilot-in-command. However, aircraft operators are not required to provide hazardous materials information to emergency responders immediately upon notification of an accident or incident. We agree with NTSB that delays in the transmittal of information to emergency responders could delay timely and effective response to incidents. Under the Docket HM-206C NPRM published on March 25, 2003 (68 FR 14341), we stated that the “information” must be provided to an emergency responder with no undue delay.” Therefore, in this NPRM, we are proposing to revise paragraph (c)(4) of this section to require aircraft operators that transport hazardous materials to provide immediate and specific information about hazardous materials on board an aircraft, including proper shipping name, hazard class, quantity, number of packages, and location, to on-scene emergency responders in the event of an accident or incident.

In addition, for consistency with international regulations, in this NPRM, we are proposing to add a new paragraph (a)(11) to specify that for “Carbon dioxide, solid (dry ice),” UN1845, only the UN number, proper shipping name, class, total quantity, exact location aboard the aircraft, and the airport at which the package(s) is to be unloaded need be provided.

In response to a FedEx Express petition, [P-1490], we are also proposing to revise § 175.33(a)(1)(i) to remove the requirement that the type of package must be included on the notification of pilot-in-command.

Section 175.75

Section 175.75 specifies the requirements for quantity limitations and cargo locations for hazardous materials transported by aircraft. Paragraph (d) requires that each package containing a hazardous material acceptable only for cargo aircraft must be loaded in such a manner that a crew member or other authorized person can access, handle and when size and weight permit, separate such packages from other cargo during flight. To increase flexibility in these stowage requirements, we believe we can expand this requirement to allow for the stowage of these materials in inaccessible cargo compartments without decreasing the current level of safety, provided the compartment has an FAA-approved fire or smoke detection system and a fire-suppression system. Therefore, in this NPRM, we are proposing to revise paragraph (d) to provide an alternative that a package containing a hazardous material acceptable only for cargo aircraft may be loaded in an inaccessible cargo compartment provided the compartment has an FAA-approved fire or smoke detection system and a fire-suppression system. Accordingly, we would also revise paragraph (d) to provide for a more user-friendly format.

Section 175.88

Section 175.88 specifies the requirements for the inspection, orientation and securing of packages of hazardous materials transported by aircraft. We are proposing to revise paragraph (c) to specify that packages of hazardous materials must be secured at all times in an aircraft in a manner that will prevent shifting or prevent a change in the position of the packages in the cargo compartment.

Part 176

Section 176.2

Section 176.2 establishes definitions specific to the transportation of hazardous materials by vessel. In this NPRM, we are proposing to editorially revise the definition for “Commandant” to update a routing designation.

Section 176.3

Section 176.3 establishes requirements for shipments of hazardous materials that are unacceptable for transportation by vessel, and requires compliance with parts 172 and 173 of the HMR. In this NPRM, we are proposing to specify that compliance with part 171 is also required.

Section 176.84

Section 176.84 establishes requirements for stowage and segregation for cargo vessels and passenger vessels. Consistent with proposed revisions for certain materials in the HMT, we are proposing to remove stowage codes “134,” “139,” and “140,” and add a new stowage code “145.” Stowage code 140 is assigned to “Aluminum alkyl halides, liquid,” UN3052, and “Aluminum alkyl halides, solid,” UN3461. Both of these shipping descriptions are proposed to be removed consistent with the adoption of appropriate generic organometallic entries. Stowage code “139” provides instruction to “stow ‘separated from' mercury salts.” The provision is a duplicate of stowage code “70,” and both codes are assigned to the entry “1,4-Butynediol,” UN2716. Additionally, stowage code “139” is only assigned to this specific entry. Therefore, we are proposing to remove stowage code “139.” Stowage code “140” provides instruction to “stow ‘separated from' UN3052 and UN3461,” which are identification numbers for aluminum alkyl halides in liquid and solid form, respectively. These entries are proposed to be removed in this rule. Consistent with the removal of these UN numbers from the hazardous materials table we are proposing to remove stowage code “140.” Stowage code “145” provides instruction to “stow ‘separated from' ammonium compounds

except for UN1444.” The stowage code is assigned to “Potassium persulfate,” UN1492, and “Sodium persulfate,” UN1505. These materials may form explosive mixtures with ammonium compounds; however, they do not react dangerously or form explosive mixtures when in contact with “Ammonium persulphate,” UN1444. Finally, in order to fully align the HMR with the IMDG Code, a new vessel stowage code “146” is added to specify that, “Category B stowage applies for unit loads in open cargo transport units.” The new vessel stowage code “146” is assigned to “Batteries, wet, filled with acid,

electric storage

,” UN2794 and “Batteries, wet, filled with alkali,

electric storage

,” UN2795 in column (10B) of the HMT.

Section 176.172

Section 176.172 establishes the structural serviceability requirements for freight containers and vehicles carrying Class 1 (explosive) materials on vessels. The IMDG Code, as recently amended, establishes similar requirements; however, unlike the HMR, the IMDG requirements expressly except containers carrying Division 1.4 explosives. Under the HMR, as provided in § 176.172(c), Division 1.4 explosive materials need not be accompanied by a statement certifying that the freight container is structurally serviceable. However, this certification exception does not explicitly except freight containers carrying Division 1.4 explosives from the underlying serviceability requirements. Because Division 1.4 explosives pose a minimal explosive risk, the structural serviceability requirements, like an accompanying certification, become correspondingly less valuable as a safety control. Therefore, in this rulemaking, we propose to amend paragraph (a) of this section to be consistent with the requirements of the IMDG Code, by excluding freight containers containing Division 1.4 explosive materials from the serviceability requirements.

Part 178

Section 178.33b

As noted in the discussion under § 173.306, we are proposing to add a new section that defines the design, construction, and testing requirements for plastic aerosols. Specifically, we are proposing to add a new § 178.33b to specify packaging; compliance; type and size; inspection; duties of an inspector; material; manufacture; design qualification, production, and leak testing; and marking requirements for plastic aerosols.

Section 178.502

Section 178.502 establishes the identification codes for marking packagings to certify conformance with UN performance standards. We propose to include a note at the end of this section to indicate that plastic materials include other polymeric materials such as rubber and, thus, the code used to designate plastic packagings may also be used for packagings constructed of other polymeric materials.

Section 178.703

Section 178.703 establishes marking requirements for IBCs. We propose to include an additional marking requirement to specify the maximum permitted stacking load applicable when an IBC is in use, with a transition date until January 1, 2011. The symbol must be not less than 100 mm (3.9 inches) × 100 mm (3.9 inches), and must be durable and clearly visible. The letters and numbers must be at least 12 mm high (.48 inches). The mass marked above the symbol must not exceed the load imposed during the design test divided by 1.8.

Section 178.801

Section 178.801 establishes general requirements for the testing of IBCs. For clarification, in this NPRM, we propose to add a sentence to paragraph (f) to specify that the IBC must be fitted with the primary bottom closure during production testing and inspection.

Section 178.810

Section 178.810 establishes the requirements for a drop test conducted for the qualification of all IBC design types. In this NPRM, we propose to revise the criteria in paragraph (e) for passing the drop test to specify that no damage is permitted which renders the IBC unsafe to be transported for salvage or for disposal, or results in a loss of contents. In addition, we are revising this paragraph to specify that the IBC must be capable of being lifted by an appropriate means until clear of the floor for five minutes.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This proposed rule is published under the following statutory authorities:

1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. This proposed rule amends 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 quantity limitations and vessel stowage requirements. To this end, as discussed in detail above, the proposed rule amends the HMR to more fully align them with the biennial updates of the UN Recommendations, the IMDG Code and the ICAO TI; this will facilitate the transport of hazardous materials in international commerce.

Harmonization serves to facilitate international transportation; at the same time, harmonization promotes the safety of people, property, and the environment by reducing the potential for confusion and misunderstanding that could result if shippers and transporters were required to comply with two or more conflicting sets of regulatory requirements. While the intent of this rulemaking is to align the HMR with international standards, we review and consider each amendment on its own merit based on its overall impact on transportation safety and the economic implications associated with its adoption into the HMR. Our goal is to harmonize without sacrificing the current HMR level of safety and without imposing undue burdens on the regulated public. Thus, as explained in the corresponding sections above, we are not proposing harmonization with certain specific provisions of the UN Recommendations, the IMDG Code, and the ICAO TI. Moreover, we are maintaining a number of current exceptions for domestic transportation that should minimize the compliance burden on the regulated community.

2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This rule proposes to amend the HMR to maintain alignment with international standards by incorporating various amendments to facilitate the transport of hazardous material in international commerce. To this end, as discussed in detail above, the rule proposes to incorporate changes into the HMR based on the Fifteenth revised edition of the UN Recommendations, Amendment 34 to the IMDG Code, and the 2009-2010 ICAO TI, which become effective January 1, 2009. The continually increasing amount of hazardous materials transported in international commerce warrants the harmonization of domestic and international

requirements to the greatest extent possible.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The proposed rule is not considered a significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. This proposed rule applies to offerors and carriers of hazardous materials, such as chemical manufacturers, chemical users and suppliers, packaging manufacturers, distributors, battery manufacturers, radiopharmaceutical companies, and training companies. Benefits resulting from the adoption of the amendments in this proposed rule include enhanced transportation safety resulting from the consistency of domestic and international hazard communications and continued access to foreign markets by U.S. manufacturers of hazardous materials.

The majority of amendments in this proposed rule should result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America.

We propose a one-year transition period to allow for training of employees and to ease any burden on entities affected by the amendments. The total net increase in costs to businesses in implementing the proposed rule is considered to be minimal. Initial start-up and inventory costs would result from these changes; however, the costs would be offset by greater long-term savings of conformance with one set of regulations and a one-year transition period. A regulatory evaluation is available for review in the public docket for this rulemaking.

C. Executive Order 13132

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule preempts State, local and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects, as follows:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; and

(5) The design, manufacture, fabrication, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

This proposed rule addresses covered subject items (1), (2), (3), (4) and (5) above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This proposed rule is necessary to incorporate changes adopted in international standards, effective January 1, 2009. If the changes in this proposed rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, would be at an economic disadvantage. These companies would be forced to comply with a dual system of regulations. The changes in this proposed rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the

Federal Register

the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA proposes the effective date of Federal preemption be 90 days from publication of a final rule in this matter.

D. Executive Order 13175

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

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

The Regulatory Flexibility Act (5 U.S.C. 601

et seq.

) requires an agency to review regulations to assess their impact on small entities, unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. This proposed rule facilitates the transportation of hazardous materials in international commerce by providing consistency with international standards. This proposed rule applies to offerors and carriers of hazardous materials, some of whom are small entities, such as chemical users and suppliers, packaging manufacturers, distributors, battery manufacturers, and training companies. As discussed above, under

Executive Order 12866

, the majority of amendments in this proposed rule should result in cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America.

Many companies will realize economic benefits as a result of these amendments. Additionally, the changes effected by this final rule will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. Therefore, I certify that these amendments will not, if promulgated, have a significant economic impact on a substantial number of small entities.

This proposed rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

F. Paperwork Reduction Act

Section 1320.8(d), Title 5, Code of Federal Regulations requires that PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. There are no new information collection requirements in this notice of proposed rulemaking.

G. Regulation Identifier Number (RIN)

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

H. Unfunded Mandates Reform Act

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $132 million or more, adjusted for inflation, to either State, local or tribal governments, in the aggregate, or to the private sector in any one year, and is the least burdensome alternative that achieves the objective of the rule.

I. Environmental Assessment

The National Environmental Policy Act, 42 U.S.C. 4321-4375, requires that federal agencies analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Counsel on Environmental Quality (CEQ) regulations order federal agencies to conduct an environmental review considering (1) the need for the proposed action, (2) alternatives to the proposed action, (3) probable environmental impacts of the proposed action and alternatives, and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).

1. Purpose and Need

PHMSA is proposing to amend 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 quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the Hazardous Materials Regulations with recent changes to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods. The amendments are intended to enhance the safety of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and effective emergency response in the event of a hazardous materials incident.

The HMR regulate materials that meet the definition of a marine pollutant in all modes of transportation. The intended effect is to increase the level of safety associated with the transportation of substances hazardous to the marine environment by way of improved communication of their presence in transportation and establishing appropriate requirements for their packaging. The HMR uses a list based system designed to help shippers determine if a material meets the definition of a marine pollutant. Recently, the IMO adopted a criteria based system for identification of materials hazardous to the marine environment based on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

2. Alternatives

In developing this proposed rule, we considered three alternatives:

(1) Do nothing.

(2) Adopt the international standards in their entirety.

(3) Adopt most of the international standards, with certain modifications based on safety or economic considerations.

Alternative 1:

Because our goal is to facilitate uniformity, compliance, commerce and safety in the transportation of hazardous materials, we rejected this alternative.

Alternative 2:

Under this alternative, we would adopt the classification criteria for marine pollutants in the IMDG Code consistent with the aquatic toxicity criteria adopted within the GHS. However, the new classification system adopted into the IMDG Code is complicated and the associated criteria for classifying mixtures containing marine pollutants would involve an additional layer of complexity without a corresponding public benefit. Therefore, we are not proposing to require the use of the new IMDG Code environmental classification system.

Alternative 3:

Consistency between U.S. and international regulations helps to assure the safety of international hazardous materials transportation through better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and effective emergency response in the event of a hazardous materials incident. Under Alternative 3, we would harmonize the HMR with international standards to the extent consistent with U.S. safety and economic goals. As indicated above, we would not adopt provisions that, in our view, do not provide an adequate safety level. Further, we would provide for exceptions and extended compliance periods to minimize the potential economic impact of any revisions on the regulated community.

Under this alternative, we would maintain the current marine pollutant criteria and list while permitting the use of the GHS Criteria. If a material not listed as a marine pollutant in the HMR meets the definition of a marine pollutant in accordance with the GHS, that material may be transported as a marine pollutant in accordance with the applicable regulations. Alternative 3 is the only alternative that addresses, in all respects, the purpose of this regulatory action, which is to facilitate the safe and efficient transportation of hazardous materials in international commerce. These actions will provide the greatest possible harmonization with international requirements without posing an undue increased cost burden on industry. For these reasons, alternative 3 is our recommended alternative.

3. Analysis of Environmental Impacts

Hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, or loading, unloading, or handling problems. The ecosystems that could be affected by a release include air, water, soil, and ecological resources (for example, wildlife habitats). The adverse environmental impacts associated with releases of most hazardous materials are short-term impacts that can be greatly reduced or eliminated through prompt clean-up of the accident scene. Most hazardous materials are not transported in quantities sufficient to cause significant, long-term environmental damage if they are released.

The hazardous material regulatory system is a risk-management system that is prevention-oriented and focused on identifying hazards and reducing the probability and quantity of a hazardous material release. Amending the Hazardous Materials Regulations to maintain alignment with international standards enhances the safe transportation of hazardous materials in domestic and international commerce. When considering the adoption of

international standards under the HMR, we review and consider each amendment on its own merit and assess their impact on transportation safety and the environment.

Alternative 1 would maintain the current marine pollutant classification system without change. We do not believe this would result in any significant impacts on the environment. Alternative 2 may result in a significant environmental impact if a material listed in the current marine pollutant list does not meet the GHS criteria. The recommended alternative 3 maintains the marine pollutant criteria and allows the voluntary use of the GHS criteria adopted by the IMDG Code. When a material meets the criteria under the GHS criteria but not the HMR, the material may still be transported under the applicable requirements for a marine pollutant. This would communicate the presence of an environmentally hazardous material consistent with the IMDG Code. Conversely, if a listed marine pollutant does not meet the GHS criteria, the material must be transported as a marine pollutant under the HMR unless approved by the Associate Administrator. The recommended alternative 3 would not result in any significant impact on the environment.

4. Consultations and Public Comment

On June 22, 2005, November 16, 2005, June 21, 2006, and November 29, 2006, PHMSA hosted public meetings with public and private stakeholders to discuss draft U.S. positions on the United Nations' Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE) proposals for the Fifteenth revised edition of the UN Recommendations on the Transport of Dangerous Goods Model Regulations. In addition, PHMSA and the U.S. Coast Guard hosted a public meeting on August 29, 2006, and hosted a second meeting on September 6, 2007, to discuss amendments to the IMDG Code. A public meeting was held in October 2007 to discuss amendments to the ICAO TI. During these public meetings, U.S. positions on proposed amendments to the UN Recommendations were considered and discussed. Positions were established based on input received during these meetings in conjunction with internal review, including thorough technical review.

We have identified a number of immediate and long-term actions that participants in the international community are taking or will take to enhance the safe transportation of hazardous materials. Through this integrated and cooperative approach, we believe we can be most successful in reducing incidents, enhancing safety, and protecting the public. We expect to receive comments from other agencies and affected members of the regulated and international communities during the comment period.

J. Privacy Act

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the

Federal Register

published on April 11, 2000 (65 FR 19477) or you may visit

http://www.dot.gov/privacy.html.

K. International Trade Analysis

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the proposed rule to ensure that it does not exclude imports that meet this objective. Accordingly, this rulemaking is consistent with PHMSA's obligations under the Trade Agreement Act, as amended.

List of Subjects

49 CFR Part 171

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

49 CFR Part 172

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

49 CFR Part 173

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

49 CFR Part 175

Air carriers, Hazardous materials transportation, Radioactive materials, Reporting and recordkeeping requirements.

49 CFR Part 176

Hazardous materials transportation, Incorporation by reference, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements.

49 CFR Part 178

Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements.

In consideration of the foregoing, 49 CFR Chapter I is proposed to be amended as follows:

PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

Authority:

49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 section 31001.

2. In § 171.7, in the paragraph (a)(3) table, the following changes are made:

a. Under the entry “International Civil Aviation Organization (ICAO),” the entry “Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2007-2008 Edition” is revised;

b. Under the entry “International Maritime Organization (IMO)” the entries “International Maritime Dangerous Goods Code (IMDG Code), 2006 Edition, Incorporating Amendment 33-06 (English Edition), Volumes 1 and 2,” and “International Convention for the Safety of Life at Sea (SOLAS) Amendments 2000, Chapter II-2, Regulation 19, 2001” are revised;

c. Under the entry “International Organization for Standardization,” the entries “ISO 10156:1996, Gases and Gas Mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Second edition, May 2005 (E)” and “ISO 10156-2:2005, Gas cylinders—Gases and gas mixtures—Part 2: Determination of oxidizing ability of toxic and corrosive gases and gas mixtures, First

edition, August 2005, (E)” are added in appropriate numerical order; and

d. Under the entry “United Nations,” the entry “UN Recommendations on the Transport of Dangerous Goods, Fourteenth revised edition (2005), Volumes I and II” is revised.

The addition and revisions read as follows:

§ 171.7

Reference material.

(a) * * *

(3)

Table of material incorporated by reference.

* * *

Source and name of material

49 CFR reference

*         *         *         *         *         *         *

International Civil Aviation Organization (ICAO)

*         *         *         *         *         *         *

Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2009-2010 Edition

171.8; 171.22; 171.23; 171.24; 172.202; 172.401; 172.512; 172.602; 173.56; 173.320; 175.33; 178.3.

International Maritime Organization (IMO)

*         *         *         *         *         *         *

International Convention for the Safety of Life at Sea (SOLAS), Amendments 2002, Chapter II-2/Regulation 19, 2004

176.63, 176.84.

International Maritime Dangerous Goods Code (IMDG Code), 2008 Edition, Incorporating Amendment 34-08 (English Edition), Volumes 1 and 2

171.22; 171.23; 171.25; 172.101 Appendix B; 172.202; 172.401; 172.502; 172.602; 173.21; 173.56; 176.2; 176.5; 176.11; 176.27; 176.30; 176.84; 178.3.

*         *         *         *         *         *         *

International Organization for Standardization

*         *         *         *         *         *         *

ISO 10156:1996, Gases and Gas Mixtures—

173.115.

Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Second edition, May 2005 (E)

ISO 10156-2:2005, Gas cylinders—Gases and gas mixtures—

173.115.

Part 2: Determination of oxidizing ability of toxic and corrosive gases and gas mixtures, First edition, August 2005, (E)

*         *         *         *         *         *         *

United Nations

*         *         *         *         *         *         *

UN Recommendations on the Transport of Dangerous Goods, Fifteenth revised edition (2007). Volumes I and II

171.12; 171.22; 171.23; 172.202; 172.401; 172.502; 173.22; 173.24; 173.24b; 173.40; 173.56; 173.192; 173.197; 173.302b; 173.304b; 178.75; 178.274; 178.801.

*         *         *         *         *         *         *

3. In § 171.14, paragraphs (d) introductory text, (d)(1) and (d)(2) introductory text are revised to read as follows:

§ 171.14

Transitional provisions for implementing certain requirements.

(d) A final rule published in the

Federal Register

on [PUBLICATION DATE OF FINAL RULE], effective January 1, 2009, resulted in revisions to this subchapter.

During the transition period, until January 1, 2010, as provided in paragraph (d)(1) of this section, a person may elect to

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