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:

Final rule.

SUMMARY:

This final rule revises 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, Transport Canada's Transportation of Dangerous Goods Regulations, and the United Nations Recommendations on the Transport of Dangerous Goods.

These revisions also 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 clarifying 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 is also modifying and enhancing 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 revisions in conjunction with the Federal Aviation Administration to enhance the safe transportation of batteries and battery-powered devices.

DATES:

Effective date:

February 13, 2009.

Voluntary Compliance Date:

PHMSA is authorizing voluntary compliance beginning January 1, 2009.

Delayed Compliance Date:

Except as specified in §§ 171.14, 171.25, 172.102, 172.448, and 178.703 as amended herein, compliance with the amendments adopted in this final rule is required beginning January 1, 2010.

Incorporation by Reference Date:

The incorporation by reference of the publications adopted in § 171.7 of this final rule has been approved by the Director of the Federal Register as of February 13, 2009.

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. Overview

A. Amendments To Enhance the Safe Transportation of Batteries and Battery-Powered Devices

B. Additional Amendments Adopted in This Final Rule

C. Amendments Not Being Adopted in This Final Rule

III. Section-by-Section Review

IV. 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. Environmental Assessment

J. Privacy Act

K. International Trade Analysis

I. Background

In a notice of proposed rulemaking (NPRM) published July 31, 2008 [73 FR 44804], PHMSA proposed a number of revisions to the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to incorporate recent updates and revisions to Transport Canada's Transportation of Dangerous Goods (TDG) regulations, the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations), the International Maritime Dangerous Goods (IMDG) Code, and the International Civil Aviation Organization Technical Instructions (ICAO TI) for the Transport of Dangerous Goods by Air. The UN Recommendations are amended and updated biennially by the UN Committee of Experts on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labeling of Chemicals and serve as the basis for national, regional, and international modal regulations, including the IMDG Code, and the ICAO Technical Instructions. The revisions proposed in the July NPRM cover classification of materials, hazard communication, and packaging requirements.

The most noteworthy proposals in the July NPRM concerned the transportation of batteries and battery-powered devices. Specifically, the NPRM proposed enhanced packaging and hazardous communication requirements consistent with international standards that address the electrical hazards posed by batteries and battery-powered devices. In the NPRM, we proposed the following amendments applicable to the 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.

• Clarify the requirements for determining whether a battery is considered non-spillable. This included designation of a new section outlining conditions for packaging and transport of batteries determined to be non-spillable.

• 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.

• Clarify the requirements for transport of dry batteries including a

revision of the proper shipping name used to describe dry batteries.

The measures proposed in the NPRM for batteries and battery-powered devices were intended to harmonize the HMR with applicable international standards. More importantly, the proposals to amend the incident reporting requirements related to the transport of batteries and battery-powered devices would enable the agency to acquire and assess data on the causes of battery incidents in transportation. We could then use that information to develop strategies to reduce the associated risks.

Harmonization of domestic and international standards becomes increasingly important as the volume of hazardous materials transported in international commerce grows. 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. By facilitating compliance, harmonization enhances 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, including an assessment 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.

To maintain alignment of the HMR with international requirements, in this final rule, we are incorporating changes based on the Fifteenth revised edition of the UN Recommendations, Amendment 34 to the IMDG Code, and the 2009-2010 ICAO TI, all of which become effective January 1, 2009. We are also addressing petitions for rulemaking concerning harmonization with international standards and additional measures to facilitate international transportation.

The July NPRM incorporated two separate rulemaking dockets—HM-224D addressing battery safety issues and HM-215J addressing more general harmonization issues. The comment period for the proposed rule closed on September 29, 2008. A total of 33 persons submitted comments in response to the NPRM. Some of the comments we received were provided in duplicate to both Docket Nos. PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J). For reader utility, we have listed all comments received in numerical order by the Document ID number assigned when submitted, including those submitted in duplicate to each docket. The following individuals, companies, and organizations submitted comments to the Docket for HM-224D:

(1) Adrien Tusek (Tusek; PHMSA-2007-0065-0013);

(2) FedEx Express (FedEx; PHMSA-2007-0065-0016);

(3) National Air Carrier Association (NACA; PHMSA-2007-0065-0017);

(4) HMT Associates, LLC (HMT; PHMSA-2007-0065-0018);

(5) Robert Herman (Paralyzed Veterans of America) (PVA; PHMSA-2007-0065-0020);

(6) Independent Pilots Association (IPA; PHMSA-2007-0065-0021);

(7) United Parcel Service (UPS; PHMSA-2007-0065-0019, 0022);

(8) Arkema, Inc. (Arkema; PHMSA-2007-0065-0023);

(9) Procter & Gamble Company (P & G; PHMSA-2007-0065-0024);

(10) Fedco Electronics, Inc. (Fedco; PHMSA-2007-0065-0025);

(11) U.S. Fuel Cell Council (FCC; PHMSA-2007-0065-0026);

(12) Joseph Schohn (Tyco International) (Tyco; PHMSA-2007-0065-0027, 0034);

(13) Omni Air International (Omni; PHMSA-2007-0065-0029);

(14) URS Corporation (URS; PHMSA-2007-0065-0030, 0031);

(15) Air Line Pilots Association, International (ALPA; PHMSA-2007-0065-0032); and

(16) Dangerous Goods Advisory Council (DGAC; PHMSA-2007-0065-0037).

The following individuals, companies and organizations submitted comments to the Docket for HM-215J:

(1) Signal Administration, Inc. (Signal; PHMSA-2008-0005-0002);

(2) Omni Air International (Omni; PHMSA-2008-0005-0003);

(3) The Fertilizer Institute (TFI; PHMSA-2008-0005-0004);

(4) FedEx Express (FedEx; PHMSA-2008-0005-0005);

(5) HMT Associates, LLC (HMT; PHMSA-2008-0005-0006);

(6) Air Transport Association (ATA; PHMSA-2008-0005-0008);

(7) National Electrical Manufacturer's Association (NEMA; PHMSA-2008-0005-0009);

(8) Chemical Products and Technology Division (American Chemistry Council) (CPTD; PHMSA-2008-0005-0010);

(9) Lilliputian Systems, Inc. (Lilliputian; PHMSA-2008-0005-0011);

(10) Association of Hazmat Shippers, Inc. (AHS; PHMSA-2008-0005-0012);

(11) American Trucking Associations (American Trucking Associations) (PHMSA-2008-0005-0013);

(12) The Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA; PHMSA-2008-0005-0014);

(13) Battery Council International (BCI; PHMSA-2008-0005-0015);

(14) Portable Rechargeable Battery Association (PRBA; PHMSA-2008-0005-0017);

(15) International Vessel Operators Hazardous Materials Association, Inc. (VOHMA; PHMSA-2008-0005-0018);

(16) URS Corporation (URS; PHMSA-2008-0005-0019);

(17) Deeds (Industrial Health & Safety Consultants, Inc.) (Deeds; PHMSA-2008-0005-0020);

(18) Anderson Products, Inc. (API; PHMSA-2008-0005-0021);

(19) National Transportation Safety Board (NTSB; PHMSA-2008-0005-0022); and

(20) Dangerous Goods Advisory Council (DGAC; PHMSA-2008-0005-0023).

Commenters were supportive of PHMSA's efforts to harmonize the HMR with international standards. Many of the proposals in the NPRM are fully supported by commenters, while others received little or no comment; these amendments are adopted as proposed. Several comments were beyond the scope of this rulemaking and are not addressed in this final rule. Comments are addressed in more detail in the Section-by-Section Review.

II. Overview

A. Amendments To Enhance the Safe Transportation of Batteries and Battery-Powered Devices

The most noteworthy amendments in this final rule 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 and devices powered by 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 electrical devices without proper protection and packaging (§ 173.21). However, the HMR currently prescribe no separate or unique classification for identifying materials that present a hazard in transport based on their stored electrical energy. This final rule addresses the electrical hazards posed by batteries and battery-powered devices by enhancing packaging and hazard communication requirements.

A growing number of incidents involving batteries and battery-powered devices transported by aircraft have 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 96 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.

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 addition, due 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 requirements adopted in this final rule are an important element of the safety strategy designed to address specific battery-related hazards not

adequately addressed by existing HMR requirements.

In this final rule, we are adopting the following amendments to enhance the safe transportation of batteries and battery-powered devices:

• Requirement to report incidents involving batteries and battery-powered devices including those that result in a fire, violent rupture, explosion, or dangerous evolution of heat. Immediate notice requirements are limited to air transport of batteries and battery-powered devices.

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

• Clarification of the requirements for determining whether a battery is considered non-spillable. This clarification includes the designation of a new section outlining conditions for packaging and transport of batteries determined to be non-spillable.

• Requirement for a shipper of batteries dry, sealed to indicate compliance with applicable special provisions and exceptions by marking each package with the words “not restricted” or, if a transport document such as an air waybill accompanies a shipment, by including the words “not restricted” on the document.

• Elimination of 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.

• Clarification of the requirements for the transport of dry batteries including a revision of the proper shipping name used to describe dry batteries and a provision to limit the applicability of transport requirements to a certain size of battery.

As indicated earlier, these amendments will harmonize the HMR with international standards applicable to the transportation of batteries and battery-powered devices, improve communication of the standards pertaining to the transport of batteries and battery-powered devices to facilitate safe transport of these materials especially by aircraft, relieve burdens associated with compliance requirements, and provide data and information to enable PHMSA to develop an understanding of the causes of battery incidents in transportation and assist us in the reduction of the associated risks.

Incident reporting.

Most batteries are currently excepted from the incident reporting requirements in the HMR. We believe it is likely that numerous incidents involving batteries and battery-powered devices in all modes of transportation are not reported. This under-reporting has made it difficult to analyze the full body of incidents in transportation and to assess the full extent of the hazards associated with transporting batteries and battery-powered devices. In the July NPRM, we proposed to require immediate (telephonic) notice in accordance with § 171.15 for all incidents involving shipments of batteries or battery-powered devices that result in a fire, violent rupture, explosion, or a dangerous evolution of heat. In addition, we proposed to require submission of a written incident report in accordance with § 171.16 for battery related incidents, including incidents involving battery shipments that are prepared and offered as excepted from HMR requirements.

We received a number of comments [ALPA, American Trucking Associations, COSTHA, NEMA, UPS, and VOHMA] supporting the proposal to require written reports in accordance with § 171.16 of the HMR for incidents involving shipments of batteries or battery-powered devices that result in a fire, violent rupture, explosion, or a dangerous evolution of heat. We also received a number of comments [ALPA, COSTHA, NEMA, VOHMA] supporting the proposal to require immediate (telephonic) notice in accordance with § 171.15. However, three commenters [American Trucking Associations, DGAC, UPS] oppose our proposal to require immediate notice of incidents involving shipments of batteries and battery-powered devices as unwarranted and burdensome, especially on carriers. DGAC does not believe, “* * * a battery incident would warrant [an emergency response] and therefore consider[s] reporting of battery incidents to the NRC an unnecessary reporting burden.” Additionally, commenters note it would be difficult to determine whether batteries or battery-powered devices were involved and whether they were the cause of the incident within the time constraints of immediate reporting requirements. As indicated by the American Trucking Associations, experience has shown that for trailer fires “* * * it is very difficult to determine the cause of the fire and carriers may not even know that batteries were present until after the fire is extinguished.” UPS indicates “* * * the new language will create significant challenges for carriers.” UPS also notes that “[e]xperience demonstrates that there are occasions when fires occur but the cause cannot be determined” and “many hours or even days may be required to identify that the batteries were in the trailer.” Both commenters express concern that fire fighters may shift or remove contents, thus complicating efforts to determine the cause of a fire. The American Trucking Associations and VOHMA specifically recommend that immediate notice should apply to air transportation only.

Given the recent incidents involving batteries and battery-powered devices, we believe incident reporting will provide the data to enable us to identify the causes of battery incidents and determine whether additional measures would improve safe transport and help prevent future incidents. However, we agree with the commenters that immediate telephonic reporting of incidents that occur during ground transportation may not be necessary for this purpose. A written report of the incident submitted in accordance with § 171.16 should provide sufficient information for us to identify and assess incident causes without imposing an undue burden on carriers. Since most of the anecdotal information about battery incidents is associated with aircraft incidents and because of the inherent safety hazards of air transport, we continue to believe that air carriers should be required to provide immediate notice of battery related incidents. Therefore, in this final rule, we are adopting the amendment to § 171.15 to include a requirement for immediate notice of incidents involving shipments of batteries or battery-powered devices transported by aircraft resulting in a fire, violent rupture, explosion, or dangerous evolution of heat. Because this change from the incident reporting provisions proposed in the NPRM will revise the estimated reporting burden, we are re-calculating the information collection pertaining to incident reporting and will submit a revised package to the Office of Management and Budget (OMB). A separate

Federal Register

notice will be published pending OMB review (see discussion under “Paperwork Reduction Act”).

One of the reporting criteria proposed in the NPRM was for an incident involving a “dangerous evolution of heat.” Several commenters [American Trucking Associations, COSTHA, FedEx, UPS, VOHMA] express concern that the criterion is vague and open to interpretation. The commenters request that we clarify the meaning of a

“dangerous evolution of heat” or remove the condition altogether in order to relieve any potential ambiguity from the incident reporting requirements for the shipment of batteries or battery-powered devices. As FedEx states, “this [term] is subjective and certainly requires further review or additional clarification.” We continue to believe that a requirement to report incidents involving a “dangerous evolution of heat” will assist us to evaluate the potential fire risks associated with the transportation of batteries and battery-powered devices. However, we agree that clarification would be helpful. VOHMA suggests that the reporting requirement should be triggered by visible evidence of an amount of heat sufficient to be dangerous to packaging or personal safety to include “* * * charring of packaging, melting of packaging, scorching of packaging, or other evidence.” We agree and are adding this clarification to the reporting requirements.

Battery safety.

In this final rule, we are adopting 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, the potential of a dangerous evolution of heat, and, for transportation by aircraft, unintentional activation. We are including 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 protected with non-conductive caps. We have included language in §§ 171.15, 171.16, 172.102 Special Provision 130, 173.21, 173.159, 173.220, and 175.10 to further clarify these requirements.

The HMR include a number of provisions applicable to batteries installed in vehicles, machinery, or other types of equipment. Section 173.220 establishes 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 final rule, we are adopting an amendment to require battery-powered vehicles, machinery, and equipment, including battery-powered wheelchairs and mobility aids, to conform to the new requirements in § 173.159, paragraphs (a) and (b), including requirements for protecting terminals and preventing short-circuiting and unintentional activation. In addition, we are clarifying 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.

Non-spillable batteries.

Section 173.159 establishes requirements for the transportation of wet batteries, including non-spillable batteries. If certain conditions are met, non-spillable batteries are excepted from the HMR. Non-spillable batteries meeting additional requirements are excepted from all other requirements of the HMR. Unless all of the conditions specified in § 173.159(d) are met, a non-spillable battery is fully subject to the HMR as a wet electric storage battery. International regulations outline the conditions under which a battery is considered non-spillable and provide packaging requirements specific to non-spillable batteries. In this final rule, we are describing in § 173.159(f) the conditions under which a battery is considered non-spillable and relocating the exceptions pertaining to non-spillable batteries to a new § 173.159a. Consistent with international requirements, we are specifying that batteries are considered “non-spillable” when they are capable of passing a vibration test and a pressure differential test without leakage. We are also adopting the requirement that non-spillable batteries must 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 are specifying 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 is designed so that electrolyte will not flow from a ruptured or cracked case;

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

• The battery is marked “NONSPILLABLE” or “NONSPILLABLE BATTERY”; and

• For transportation by aircraft:

• The battery must meet the provisions of § 173.159(b)(2).

One commenter [Tyco] expresses concern regarding shipments of non-spillable batteries that otherwise appear to meet the requirements for transport of non-spillable batteries (see § 173.159a), but leak after being damaged during transportation. The commenter states that it conducted an internal investigation, which involved test samples of all non-spillable batteries it utilizes, to determine if those batteries met the criteria of a “non-spillable” battery because they leaked and contained free liquids. According to the commenter, a number of the tested batteries exhibited observable leakage, although the manufacturers and distributors of the batteries had provided certification and laboratory results showing no failures. Based on this information, the commenter recommends that PHMSA clarify any ambiguity surrounding the methodology used to determine whether a battery is “non-spillable” to improve safety during the transportation of these materials. Specifically, the commenter requests PHMSA identify a testing protocol to determine whether a battery is designed so that electrolyte will not flow from a ruptured or cracked case.

We commend the efforts of the commenter and appreciate the information provided in its comments. However, the recommendation provided by the commenter is outside the scope of this rulemaking as revisions to the criteria for determination of a non-spillable battery were not proposed in the NPRM. We will consider this information as part of our comprehensive strategy aimed at reducing the risks posed by batteries and battery-powered devices in transportation.

We received two comments [BCI, PRBA] expressing disappointment that PHMSA did not consider provisions for shipments of non-spillable batteries transported for recycling or disposal. The commenters indicate that “* * * it is almost impossible for shippers of used batteries to know if nonspillable batteries have been subject to the required vibration, pressure differential, and ‘crack test' at 55 °C (131 °F) or marked NONSPILLABLE or NONSPILLABLE BATTERY * * *” Both commenters request that PHMSA include a new paragraph in § 173.159

which would provide relief from these tests for batteries transported for disposal or recycling. The request by the commenters is beyond the scope of this rulemaking. We did not propose the addition of a new paragraph which provides relief from non-spillable test requirements for shipments of non-spillable batteries intended for recycling or disposal. However, we will review the merits of this request and consider it for a future rulemaking.

One commenter [BCI] requests that PHMSA remove the reference to “batteries manufactured after September 30, 1995” in the new § 173.159a for exceptions for non-spillable batteries. BCI notes that “* * * it is safe to assume that all nonspillable batteries being shipped today and in the future are manufactured after this date * * *” We agree and in this final rule, we are removing the phrase “batteries manufactured after September 30, 1995” from the new § 173.159a.

Battery-powered wheelchairs or other mobility aids.

Section 175.10 establishes exceptions for passengers, crewmembers, and air operators. Currently, the HMR permit a wheelchair or other battery-powered mobility aid 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 aid or removed and separately packaged. We are concerned, however, that repeated handling of the battery in a wheelchair or other mobility aid could result in damage or other problems that could compromise safety. Moreover, the design batteries and their housing have significantly improved in recent years. Therefore, in the NPRM, we proposed to revise § 175.10(a)(15) to eliminate the requirement to disconnect the terminals when a battery-powered wheelchair or other mobility aid 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 aids.

Three commenters [ALPA, Omni, PVA] support PHMSA's proposal to eliminate the current requirement to disconnect the terminals when a battery-powered wheelchair or other mobility aid is transported as checked baggage provided the wheelchair or mobility aid has an effective means of preventing unintentional activation. ALPA states, “* * * [w]e believe this provides an equivalent level of safety and will prevent inadvertent damage to wheelchairs by airline personnel, which could lead to a battery incident.” However, one commenter [Tusek] expresses concern regarding the proposal to disconnect the battery if the wheelchair or mobility aid design does not provide an effective means of preventing unintentional activation. The commenter is concerned that such a requirement can be satisfied by merely unplugging a cable from a control unit rather than disconnecting the battery at the terminal(s). The commenter notes that the cable is still “live” and susceptible to “arcing” (short-circuiting) if the cable remains attached to the battery. The commenter provides information about an incident involving a wheelchair to illustrate the risk associated with unplugging a wheelchair but allowing the cable or wiring to remain connected to a battery.

We acknowledge the concerns of the commenter and believe that additional clarification is warranted. Our review indicates that the referenced incident could have been prevented by thorough visual inspection, proper handling, and proper insulation of the terminals. Additionally, we note that the intent of the provision to disconnect the battery is to disconnect the battery at the terminals (and insulate the terminals to prevent short circuits). Unplugging a cable and leaving it connected to the terminal(s) does not satisfy the requirement to disconnect the battery and insulate the terminals. However, requiring the disconnection of batteries at the terminal results in repeated handling of the battery and increases the potential of damage or other problems that could compromise safety. Our intent is to diminish this potential by allowing the battery to remain connected to the wheelchair or mobility aid if the design provides an effective means of preventing unintentional activation. Therefore, in this final rule, we are adopting the requirements as proposed, and including additional language in the regulatory text in § 175.10(a)(15) to clarify that when the battery is disconnected, the battery terminals must also be protected to prevent short circuits.

Waybill notation.

In the July NPRM, we proposed to require a notation to be included on the air waybill accompanying a shipment to indicate that batteries and battery-powered devices have met all conditions and requirements for transport as specified in the HMR without further restriction. A number of commenters [ALPA, American Trucking Associations, BCI, COSTHA, DGAC, Fedco, FedEx, NEMA, Omni, PRBA, UPS, URS] addressed the proposed notation. Most commenters oppose the proposal based on current air carrier practice, inconsistency with the ICAO TI, and concern that air waybills are not required shipping documents under the HMR.

Commenters oppose the certification provisions because the HMR do not specifically require an air waybill. As COSTHA notes, “* * * [u]se of an air waybill is not mandated by the HMR and there are few if any references to an air waybill.” Additionally, UPS points out that “[t]his commercial document, used by many air carriers as a contract of carriage, does not really have any status in the HMR * * *” Commenters state that the language as written suggests that the required words “not restricted” must appear on an air waybill, in effect, requiring shipments to be accompanied by an air waybill. Other commenters stress that the language as proposed in the NPRM is not consistent with ICAO TI requirements, which require the words “not restricted”

when an air waybill is issued.

PRBA asserts that “* * * PHMSA should clarify that this requirement only applies when an air waybill is issued * * *” Two commenters [COSTHA, Omni] suggest that it would be more appropriate to revise the language to require confirmation of compliance on an accompanying air waybill or other document. COSTHA specifically suggests using language similar to language provided in new section § 173.4a(h)(1), “* * * if a document such as an air waybill accompanies a shipment * * *.”

Commenters are also concerned about implementation of such a hazard communication requirement. Some indicate an inequitable burden on carriers, especially non-air transport modal carriers. The American Trucking Associations indicates, “* * * if a shipper of batteries fails to indicate this statement on an air waybill used as a shipping paper, it is extremely unlikely that a motor carrier will be able to identify the deficiency * * *” UPS urges PHMSA to proceed carefully with new documentation requirements and states, “PHMSA should not expect carrier personnel routinely to seek information related to hazardous materials on a document other than a hazardous materials shipping paper, particularly when the package does not otherwise require special handling * * *.” Commenters also note that use of an air waybill is not standard across the air carrier industry, and that carriers and industry are becoming more

automated and moving towards a paperless system for shipments. According to UPS, “Millions of air shipments, including those in the UPS small package service, move every day without an accompanying air waybill. The vast majority of such small package service shipments are transported with an address label affixed to the package * * * PHMSA's proposal depends on the unfounded assumption that an air waybill will be generated for every air shipment * * *.” FedEx adds, “We estimate that well over 50% of shipments offered to FedEx Express do not have a paper air waybill.”

Two commenters [NACA, Omni] note that in many cases the carrier or freight forwarder prepares the air waybill and disagree with PHMSA's premise that including the words “not restricted” on an air waybill allows a carrier or freight forwarder to verify that the shipper has complied with applicable requirements. According to Omni, “* * *[w]here the consignor tenders a material or article to an aircraft operator or freight forwarder and the operator's or freight forwarder's agent prepares the air waybill, the stated intent of the PHMSA may not be satisfied.” Omni suggests PHMSA require the confirmation of compliance on the accompanying air waybill or other transport document to permit the endorsement in a form other than the air waybill prepared by the operator or freight forwarder. NACA suggests requiring the shipper to submit written verification that the shipment is determined to be “not restricted” or requiring the shipper endorsement of an air waybill prepared by a carrier or the freight forwarder.

Recent incidents involving batteries and battery-powered devices suggest that shippers may not be aware of all the HMR requirements applicable to shipments of these items. Moreover, the lack of a declaration or some other type of shipment identification accompanying these shipments to air carriers may result in unsafe handling during transportation. We believe that a requirement to indicate on a shipping document or other media that the shipment conforms to all applicable requirements will enhance safety through increased awareness on the part of both shippers and carriers.

It was not our intent to specifically require the use of an air waybill to communicate conformance. We agree with commenters that recommend consistency with ICAO TI requirements to include the words “not restricted” when an air waybill is issued. However, in light of comments submitted indicating that not all shipments are accompanied by an air waybill, limiting the requirement to “when an air waybill is issued” does not satisfy the intent of communicating conformance with the HMR. Therefore, as suggested by COSTHA, we are revising the language to be similar to the “excepted quantities” documentation requirements to specify that “if a document such as an air waybill accompanies a shipment, the words ‘not restricted’ must be provided on the document.” The documentation we refer to is some form of transport documentation prepared to accompany the shipment. To assist the communication process, we recommend including the words “not restricted” on the top page of a multiple page document in a manner clearly distinguishing the required words from other text. In addition, to reduce the paperwork burden that may result from this requirement, in this final rule, we are adopting an alternative means of communicating conformance. Specifically, a shipper may elect to mark each package containing batteries or battery-powered devices with the words “not restricted” in lieu of placing the words on a transport document accompanying the shipment. Finally, in response to commenters' concerns that this amendment will impose additional documentation-related burdens, we are recalculating the related information collection pertaining to shipping papers and will submit a revised package to OMB. A separate

Federal Register

notice will be published pending OMB review (See discussion under “Paperwork Reduction Act”).

Note that the requirement to include the notation “not restricted” on an air waybill, shipping document, or as a package marking applies to cargo shipments of dry, sealed batteries that are greater than 9 volts. Other types of batteries, including lithium batteries and non-spillable batteries, are already subject to hazard communication requirements in the form of shipping documentation and/or package markings and labels.

We are not adopting our proposal for an air waybill certification requirement for other types of hazardous materials shipments. See the discussion later in this preamble.

Conforming amendments.

In the July NPRM, we proposed a number of conforming amendments to ensure that batteries are transported in accordance with the proposed requirements in § 173.159. For example, § 173.21 currently prohibits the transportation of electrical devices unless packaged to prevent the creation of sparks or generation of a dangerous amount of heat. In the NPRM, we proposed to revise this paragraph to clarify that the term “electrical devices” includes “batteries” and “battery-powered devices.” We also proposed 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 the potential of a dangerous evolution of heat, 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 to the proposed amendments, in this final rule, we are adding clarifying language that the requirements in Special Provision 130 for dry batteries transported by air only apply to shipments of batteries whose voltage (electrical potential) exceeds 9 volts.

We received a number of comments [BCI, NEMA, Omni, PRBA,UPS, URS] generally supporting our efforts to clarify requirements for preventing short circuits and inadvertent activation as well as our proposal to include examples of packaging methods to meet performance standards. However, several commenters [NEMA, PRBA, URS] oppose the current structure of the regulatory text outlining examples of packaging methods to prevent short circuits for batteries excepted under § 172.102, Special Provision 130. Specifically, commenters are concerned with the examples we provided to package each battery when practicable in fully enclosed inner packagings or separating the batteries in a manner to prevent contact with other batteries, devices or conductive materials. The commenters are also concerned that this language would disallow the current practice of retail packaging commonly referred to as “blister packs” and volume packaging of batteries. Commenters note that during volume packaging of batteries, batteries are packaged in such a manner that the metal sides or jackets of the batteries contact one another, but are positioned and packaged so that there is no terminal-to-terminal contact or terminal-to-metal contact, and there is no shifting of the contents to allow such contact.

We agree with the commenters that clarification of the proposed language may be warranted. The intent of including the examples of methods to protect from short circuits is to assist shippers to identify specific methods of achieving the standard. As UPS notes “[t]he inclusion of these examples will lead to better understanding of the specific steps required to prevent incidents in transportation.” Our intent is not to prohibit a method of packaging

that has a track record of safe transport. Indeed, we have issued previous interpretive guidance indicating that battery-to-battery contact is not prohibited provided there is no contact between battery terminals, battery terminals and conductive material, or shifting that would allow such contact. Therefore, in this final rule, we are revising the proposed language in §§ 172.102, Special Provision 130 and 173.159 to clarify the requirements.

One commenter [Omni] expresses concern that FAA requirements in 14 CFR Part 382 no longer align with the requirements in Parts 171 through 175 because of proposed revisions to §§ 173.159 and 175.10. Omni encourages agencies within DOT to coordinate efforts to ensure requirements from the respective agencies align. We agree that alignment within the agencies is necessary; however, we are not aware of any conflict.

One commenter [BCI] indicates that we did not clearly state the numerous ways protection against short circuits and generating a dangerous quantity of heat can be achieved. BCI points out that “* * *certain batteries are designed in such a way to prevent short circuits, and thus need not be subject to additional packaging requirements. (Examples include, but are not limited to, recessed battery terminals.)* * *” BCI recommends that PHMSA incorporate design considerations into the transport requirements for batteries or battery-powered devices. We agree. The requirements are not intended to regulate the design of these materials but allow for designs that conform to the requirements. For instance, the requirements allow for compliance with the requirement to protect against damage to terminals through design implementation such as recessed battery terminals.

In the July NPRM, we also proposed 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 final rule, we are extending the requirements for incident reporting and enhanced packaging to cover all batteries and battery-powered devices. Therefore, we are removing the entry “Batteries, dry,

not subject to the requirements of this subchapter

” and adding a new entry, “Batteries, dry, sealed, n.o.s.” to the HMT.

It should be noted 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 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 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

” is being revised by adding to column (7) a reference to new Special Provision 237. The new special provision specifies 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(b)(2). The entry “Batteries, wet, non-spillable,

electric storage

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

Section 173.189 establishes transportation requirements for batteries containing sodium or cells containing sodium. In the NPRM, we proposed 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.” This amendment is being adopted as proposed.

Section 176.84 contains additional stowage and segregation requirements for hazardous materials on cargo and passenger vessels. In this final rule, in order to 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.

Lithium batteries.

Except for incident reporting requirements, the July NPRM did not propose any amendments pertaining to the transportation of lithium batteries. PHMSA is continuing 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.

Three commenters [ALPA, Fedco, Omni] express disappointment that PHMSA is not proposing any amendments pertaining to the transportation of lithium batteries. One commenter [Fedco] is, “appalled to find * * * 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.” Fedco notes the burden this places on its company by requiring “extreme diligence” when shipping lithium cells and batteries because of the dual shipping and packaging requirements and strongly urges PHMSA to fully harmonize with the UN Recommendations. Omni also expresses concern but requests that, “* * * at a minimum, the PHMSA incorporate in to § 172.101 the three new lithium ion battery proper shipping names and the three replacement lithium metal battery proper shipping names that come into effect internationally * * *” as of January 1, 2009. An additional commenter [NEMA] requests clarification of the weight limitations for packages of small lithium cell and batteries.

We appreciate the concerns expressed by shippers about the challenges involved with complying with differing regulatory standards and requirements. However, it should be noted that because the HMR permit compliance with ICAO requirements for air shipments, the new proper shipping names may be used for air transportation, both domestically and internationally, and for transportation by motor vehicle and rail immediately before or after being transported by aircraft. Further, as stated in the NPRM, we plan to complete an assessment of the costs and benefits of further restrictions and available alternatives before developing additional lithium battery rulemaking proposals. Therefore, except for incident reporting

requirements and some clarifying language for protection against short circuits, this final rule does not adopt amendments pertaining to the transportation of lithium batteries. 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.

B. Additional Amendments Adopted in This Final Rule

In addition to the battery-related amendments detailed above, in this final rule, we are adopting 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 § 172.101 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. Additionally, we are revising several entries in the HMT to correct typographical errors.

•

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 adopting 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. 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. We proposed to 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. Based on our review of comments regarding the proposed air waybill requirements for “not restricted” materials and based on past history of safe transportation of these excepted materials, in this final rule, we are not adopting the incident reporting requirement as proposed for those materials excepted in §§ 173.162, 173.164, 173.166, 173.186, 173.306, and 173.307. However, we are adopting our proposals to revise the exceptions and Special provisions applicable to batteries to include incident reporting requirements because there is a greater need to collect data as is discussed in the above Section A. We will continue to review the merits of the proposal and may reconsider the proposed amendments for a future rulemaking.

•

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, TDG, UN Recommendations, and the addition of two new International Organization for Standardization (ISO) standards.

•

Petitions for Rulemaking:

In this final rule, 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 Globally Harmonized System of Classification and Labelling of Chemicals (GHS) are not prohibited under the HMR; P-1505, requesting PHMSA to include a new proper shipping name “Powder, smokeless,” UN0509, to the 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 classed as such for domestic or international transportation (see paragraph 4 of the introduction to Appendix B of § 172.101). The new classification system adopted in 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, in the NPRM, we did not propose to adopt the new IMDG Code environmental classification system. Instead, we proposed to maintain the current regulatory approach to facilitate transportation without mandating use of the new GHS-based criteria. We also proposed to adopt a new marking for marine pollutants consistent with the marking adopted within the IMDG Code. These amendments are being adopted as proposed. These actions will provide the greatest possible harmonization with international requirements without imposing an undue burden on industry. This amendment is also consistent with a Petition for Rulemaking (P-1516) filed by 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 percent rule for classifying mixtures containing marine pollutants be used while allowing compliance with the mixture calculation in the IMDG Code. Though we did not propose to implement a 10 percent rule for marine pollutants irrespective of whether they are identified as a severe marine pollutant, we requested comments on that recommendation. In particular, we

were interested in the environmental impacts of such a change and its effect on human health and the environment. We invited 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. We did not receive any comments specifically addressing the release of substances into aquatic resources and drinking water. However, comments pertaining to the proposal to maintain the current regulatory approach to facilitate transportation without mandating use of the new GHS-based criteria are discussed under the section entitled “Appendix B to § 172.101” in this rulemaking.

C. Amendments Not Being Adopted in This Final Rule

This final rule makes 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 adopting 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 a proposed amendment in the NPRM, we will attempt to include the omission in this 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 significant amendments to the international regulations that we are not adopting in this final rule with a brief explanation of why the amendment was not included:

•

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). Pursuant to that 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 [PHMSA-06-25885 (HM-232F); 73 FR 52558, September 9, 2008] we proposed revisions to 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. We expect to publish a final rule in the spring of 2009.

•

Requirements for Radioactive Materials.

We are not adopting 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 State and local authorities. Therefore, we are not adopting 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 adopted 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 adopted 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 amending the vibration test requirements currently in the HMR.

•

Requirement for Bromine (UN1744).

In the most current 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. The most noteworthy revision to the UN packing instruction which was initially adopted by the UN, was the removal of the intermediate packaging requirement for combination packagings. This decision was later reversed. Therefore, because the HMR already require an intermediate packaging, we are not adopting this amendment in this rulemaking.

•

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 adopted 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 adopted 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 adopted in this rulemaking. We are reviewing these amendments, including the related cost impacts, and may consider them for a future rulemaking. In the NPRM, we requested comments to provide information and suggestions that we can use during a future review. One commenter [ATA] states that it does not support airport signage as a primary means of hazard communication and that the ICAO requirements for more information on signage are not effective or efficient. Further, the commenter urges PHMSA not to adopt the ICAO signage requirements. We acknowledge the commenter’s remarks and will include them in our consideration of a future rulemaking.

•

Requirement for Hazard Communication on an Air Waybill:

Amendment 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 applicable exceptions or special provisions. Based on comments received in response to the NPRM and the past history of the safe transport of the hazardous materials that would be subject to these amendments, we are not adopting the amendments in this final rule. However, we will continue to review the merits of this hazard communication amendment and may reconsider incorporating the amendment or a similar revised version of the amendment in a future rulemaking.

III. Section-by-Section Review

Following is a section-by-section review of the amendments adopted in this final rule. Note that this section-by-section review excludes the amendments applicable to the transportation of batteries and battery-powered devices, which are detailed in section II of this Notice.

Part 171

Section 171.7

The “National Technology Transfer and Advancement Act of 1996” directs agencies to use voluntary consensus standards. According to 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.

One commenter [TFI] requests that we amend the HMR to include the most current edition of the Transport Canada's TDG Regulations by referencing “Amendment 6” in the § 171.7 list of standards incorporated by reference. Amendment 6 of the TDG was published in Part II of the Canada Gazette on February 20, 2008. The § 171.7 list of standards of the HMR currently lists Amendment 5. We acknowledge the commenter's request to include Amendment 6 in our list of standards incorporated by reference. We are currently evaluating the changes in Amendment 6 of the TDG to determine whether the revised standards provide an enhanced level of safety without imposing significant compliance burdens, and will consider its inclusion in the HMR in a future rulemaking. However, in this final rule we are incorporating the new subsection 4.18(5) of Amendment 6 pertaining to placarding of anhydrous ammonia, UN1005. This amendment will maintain our long-standing policy of accepting the TDG placards in the U.S. and will facilitate the safe and efficient transportation of anhydrous ammonia between the U.S. and Canada.

We did not receive comments opposing the incorporations by reference proposed in the NPRM; therefore we are updating the addresses and the incorporation by reference materials for the ICAO TI, the IMDG Code, and the UN Recommendations. In addition, we are updating the ISO address and adding two new ISO Standards. The updated editions of these standards become effective January 1, 2009.

The following currently referenced standards will be updated as shown in the amended § 171.7:

•

International Civil Aviation Organization (ICAO),

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

•

International Maritime Organization (IMO),

International Convention for the Safety of Life at Sea (SOLAS) Amendments 2000, Chapter II-2, Regulation 19, 2001 and The International Maritime Organization's International Maritime Dangerous Goods Code, 2006 Edition, Incorporating Amendment 33-06, English Edition, Volumes 1 and 2.

•

International Organization for Standardization,

ISO 10156:1996, Gases and Gas Mixtures—Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets, Second edition February 1996 (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).

•

Transport Canada,

Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations), August 2001 including Clear Language Amendments SOR/2001-286, Amendment 1 (SOR/2002-306) August 8, 2002; Amendment 2 (SOR/2003-273) July 24, 2003; Amendment 3 (SOR/2003-400) December 3, 2003; Amendment 4 (SOR/2005-216) July 13, 2005; and Amendment 5 (SOR/2005-279) September 21, 2005.

•

United Nations,

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

Section 171.14

This section prescribes transitional provisions for recently adopted

regulatory changes in the HMR. In a final rule, under Docket HM-218D (73 FR 4699; on January 28, 2008), we added a new entry for “Ethanol and gasoline mixture

or

Ethanol and motor spirit

or

Ethanol and petrol mixture,

with more than 10% ethanol,

3, UN3475, II” in the HMT. Although we included a delayed compliance date for the implementation of the new identification number marking requirements in § 172.332(c)(6) and (c)(7), we did not provide the same transition period in the regulatory text for the continued use of the proper shipping names for these materials that were in effect prior to the publication of the HM-218D final rule. For example, for a gasoline and alcohol fuel blend containing 85 percent alcohol (E85), the most appropriate description prior to the HM-218D rulemaking was “Flammable liquid, n.o.s., (ethanol, gasoline), 3, UN1993.” Our intent was to minimize the costs of transitioning to this new description by allowing the continued use of shipping names for these materials that were in effect prior to publication of the HM-218D final rule for a period of two years from the effective date, as discussed in the HM-218D final rule preamble. To correct this oversight, in this rulemaking, we are adding a new paragraph (h) to specify that effective October 1, 2010, the new proper shipping name “Ethanol and gasoline mixture or ethanol and motor spirit mixture or ethanol and petrol mixture,” and the revised proper shipping name “Gasohol

gasoline mixed with ethyl alcohol, with not more than 10% alcohol

must be used, as appropriate.

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 U.S. 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 the NPRM, we proposed to revise § 171.25(c)(5) 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.

Two commenters [Signal, VOHMA] support the proposal, but both express concern pertaining to its implementation. VOHMA states that “we are concerned that vessels transiting U.S. ports and in compliance with the current IMDG Code authorization for “under-deck” stowage may be problematic” and requests that PHMSA ensure that shippers are made aware of the requirement. We agree with the commenter. PHMSA submitted a proposal to the IMO Subcommittee on Dangerous Goods, Solid Cargoes and Containers to address the issue of stowage of cryogenic liquids as discussed above. IMO will adopt the provisions in the IMDG Code under Amendment 35-10. In the interim period between adoption in the HMR and adoption in the IMDG Code, PHMSA will work with the IMO and various trade associations to advise shippers and carriers of this new provision.

Signal recommends that PHMSA revise paragraph (d) of this section (

Use of the IMDG Code in port areas

) to clarify that the provision to store portable tanks, cargo tanks, and tank cars containing cryogenic liquids “on deck” is also applicable to port areas. The commenter expresses concern regarding vessels passing through U.S. port areas where cryogenic liquids may be stowed “under-deck” in accordance with the IMDG Code stowage requirements. The commenter believes the hazard is just as great to U.S. maritime workers even though the cargo may not be loaded or unloaded in the U.S. port of call. Additionally, pending a revision to paragraph (d), Signal also urges PHMSA to waive the proposed one year transition period and make the provisions for stowage of cryogenic liquids effective on the date of publication of this rulemaking. We agree with the commenter's concern regarding the applicability of the provision in U.S. port areas and due to the immediate nature of the risk associated with stowing bulk packagings of cryogenic liquids “under-deck,” in this final rule, we are adding a new paragraph (d)(3) to specify that this provision is applicable to U.S. port areas. We also agree with the recommendation to make the provisions effective immediately. Therefore, in this final rule, we are revising paragraphs (c)(5) and (d)(3) of § 171.25 to indicate that these specific requirements are effective 30 days after the date of publication of the rulemaking, except for shipments transporting these materials prior to the effective date of this amendment.

Part 172

Section 172.101 Hazardous Materials Table (HMT)

Section 172.101 contains the HMT and explanatory text for each of the columns in the HMT. We proposed to make various amendments to the HMT. Readers should review all changes for a complete understanding of the amendments. For purposes of the Government Printing Office's typesetting procedures, changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, appear as a “remove” and “add.” Amendments to the HMT 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, but were inadvertently overlooked. Therefore, in this final rule, we are removing 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

Portable tank 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 revising 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

UN1745  Bromine pentafluoride

UN1744  Bromine solutions

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

NA2927  Ethyl phosphonothioic dichloride, anhydrous or Ethyl phosphorodichloridate

NA2845  Ethyl phosphonous dichloride, anhydrous

pyrophoric liquid

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 proposed 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 discussion under § 173.206 in this section of the rulemaking. The following entries are revised in Column (8B) by replacing the current non-bulk packaging provision with “206”:

UN1724 Allyltrichlorosilane, stabilized

UN1728 Amyltrichorosilane

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 Portable tank Special Provision TP13 (which requires provision of self-contained breathing apparatus when certain hazardous materials are transported by vessel) to all chlorosilanes, the following entries are revised in Column (7) by adding Special Provision TP13:

UN2987 Chlorosilanes, corrosive, n.o.s.

UN1781 Hexadecyltrichlorosilane

UN1804 Phenyltrichlorosilane

UN1818 Silicon tetrachloride

We consider Portable tank 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 are 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 prohibiting the use of metal IBCs by removing the respective Special Provisions IB1 or Special Provision IB2 provisions from the following entries. We are also adding 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 Portable tank 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 revising the following entries by replacing Special Provision T7 with Special Provision T10. Special Provision T10 prohibits the use of bottom discharge openings. We are also deleting the respective IBC Special Provisions IB1 or IB2 to prohibit the use of metal IBCs and adding 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 applying 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 Special Provision T10, we are adopting the general assignment of Special Provision T14 rather than Special Provision 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 revising 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 are 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 are classed as Class 3, subsidiary Class 8, PG II materials. In addition, as discussed above, we are replacing Special Provision T7 with Special Provision T10 for most chlorosilanes, however, for these entries Special Provision T10 replaces the previously assigned Special Provision T11. The entries are 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 replacing Special Provision T7 with Special Provision T10, which prohibits bottom discharge openings. In addition, we are revising the following entries by replacing Special Provision T11 with Special Provision T14 which also 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 prohibiting 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 are assigning Portable tank Special Provision TP27 to all “n.o.s.” entries of Classes 3, 8 and Division 6.1. Entries for Division 4.3 are assigned Special Provision TP27 because of higher risk of a possible release of a flammable gas. The following entries are 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 are revised by adding Special Provision IP2 to correct an inconsistency. When a hazardous material is assigned Special Provision IP2, the material must be offered for transportation in a closed freight container or a closed transport vehicle. “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 Special Provision IB8 but not Special Provision IP2. For consistency in the assignment of Special Provision IP2, the following entries are 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 in the special provision are inconsistent with the net quantity packaging limits authorized under the limited quantities exceptions for these materials in §§ 173.150 and 173.153 of the HMR. Therefore, the following entries are 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 adding 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 are revised by adding a reference to packaging section “307” to Column (8A) for consistency with international regulations regarding exception from the requirements for manufactured articles and apparatuses containing minimal amounts of inert gas. See the discussion under § 173.307 in this section of the rulemaking for additional information regarding this change.

UN1006 Argon, compressed

UN1046 Helium, compressed

UN1970 Krypton, compressed

UN1065 Neon, compressed

UN2036 Xenon, compressed

The entry “Amines, flammable, corrosive, n.o.s.

or

Polyamines, flammable, corrosive, n.o.s.,” UN2733 is revised to include the PG II and PG III entries in proper order to correct inadvertent assignment of the entries to UN2734. This revision appears as a “Remove/Add” in this rulemaking.

The entry “Amines, liquid, corrosive, flammable n.o.s.

or

Polyamines, liquid corrosive, flammable n.o.s.,” UN2734 is revised to include a comma after flammable in both proper shipping names and a comma between liquid and corrosive in the second proper shipping name in Column (2) and to remove the PG II and PG III entries for “flammable, corrosive” to correct inadvertent assignment of these entries. This revision appears as a “Remove/Add” in this rulemaking.

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

electric storage

,” UN3028 is revised by adding to Column (7) a reference to new Special Provision 237.

The entries “Boron trifluoride,” UN1008 and “Hydrogen iodide, anhydrous” UN2197 are 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 is 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 provision.

For consistency with UN Recommendations, the entry “Chlorine,” UN1017 is 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 are 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 are removed for clarification and consistency with the same entries in the UN Recommendations. This revision appears as a “Remove/Add” in this rulemaking.

The instruction for the entry “

Cartridges, sporting, see

Cartridges for weapons, inert, porjectile,

or

Cartridges, small arms” is revised in Column (2) by correcting the misspelling of “projectile.” This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Corrosive, liquid, acidic, inorganic, n.o.s.,” UN3264 is revised in Column (2) by removing the comma appearing between “corrosive” and “liquid” to read “Corrosive liquid, acidic, inorganic, n.o.s.” This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Dyes, liquid, corrosive, n.o.s., or Dye intermediates, liquid, corrosive, n.o.s.,” UN2801 is revised in Column (2) by italicizing the “or” in the proper shipping name. 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 are 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, there are a number of other rapidly advancing fuel cell technologies employing a range of fuels. In this final rule, we are revising 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 are adding 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 is added.

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

containing flammable liquids

,” UN3473 is 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 is 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 is 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 is added.

The entry “Gasohol,” NA1203 is 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, is revised in Column (7) by adding Special Provision 177 and Special Provision IB2. Special Provision 177 is added 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. Special Provision IB2 was inadvertently removed under Docket No. HM-213 (68 FR 52363; September 3, 2003).

The proper shipping name for the entry “Hydrogen in a metal hydride storage system,” UN3468 is 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 is added.

A new entry “1-Hydroxybenzotriazole, anhydrous, wetted

with not less than 20 percent water, by mass

,” UN3474 is added. One commenter [AHS] requests that PHMSA revise this entry to reflect the modified entry agreed upon by a recent UN Sub-Committee meeting. The modified entry, “1-Hydroxybenzotriazole, monohydrate,” UN3474 would also have Special Provision 162 deleted from the entry. AHS notes that, “* * * The U.S. supported this change and * * * was instrumental in getting the modification accepted” by the UN Subcommittee. AHS also indicates the modified entry is, “* * * a more accurate description of this material.” Additionally, the commenter requests that PHMSA add the modified entry in the same manner as the addition of the new entry “Powder, smokeless,” UN0509, where the entry has a “D” in Column (1) indicating it is appropriate for domestic transport but may not be appropriate for international commerce. [The rationale for including “D” in Column (1) for the entry “Powder, smokeless,” UN0509 is explained in greater detail in the discussion of changes to § 173.62 in this section of the rulemaking.] Because the modified entry for UN3474 was not proposed in the NPRM, the request to include the modified version of the entry in the HMT (including the deletion of Special Provision 162 from the entry) is beyond the scope of this rulemaking. However, we will treat the commenter's remarks as a petition for rulemaking and consider the request for the modified hazardous materials description for inclusion in the HMT in a future rulemaking. No other comments opposing this proposal to add this entry were received; therefore, in this final rule, we are adopting the proposal without change. This appears as an “Add” in this rulemaking.

The entry “Hypochlorite solutions,” UN1791 is 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 is revised in Column (7) by adding a new Special Provision 332. Special Provision 332 specifies that 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 is 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 is also 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.” 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 is 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 is 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 I, PG II and PG III is 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 instruction for the entry “

2,5-Norbornadiene, stabilized, see

Bicyclo 2,2,1 hepta-2,5-diene, stabilized” is revised in Column (2) by enclosing “2,2,1” in brackets to denote the correct spelling and to be consistent with the proper shipping name entry “Bicyclo [2,2,1] hepta-2,5-diene, stabilized or 2,5-Norbornadiene, stabilized,” UN2251. This revision appears as a “Remove/Add” in this rulemaking.

The entry “Organometallic substance, liquid, water-reactive, flammable,” UN3399, PG I and PG II, is 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 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 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 entry “Organometallic substance, solid, water-reactive,” UN3395 is revised to include the letter “G” in Column (1) to correct an inadvertent omission.

The entry “Organometallic substance, solid, water-reactive,” UN3395 is revised by adding the letter “G” in Column (1) to correct an inadvertent omission.

The entry “Organophosphorus compound, toxic, flammable, n.o.s,” UN3279 is revised by adding the letter “G” in Column (1) to correct an inadvertent omission.

The proper shipping name for the entry “Pentaerythrite tetranitrate mixture, desensitized, solid, n.o.s.,” UN3344 is 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 is 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, are revised in Column (10B) by removing vessel stowage code “56” and adding “145.”

A new entry “Powder, smokeless,” UN0509, is added. A discussion of changes to § 173.62 in this section of the rulemaking provides an explanation of the addition of this entry.

The proper shipping name for the entry “Receptacles, small, containing a gas (gas cartridges)

non-flammable without release device, not refillable and not exceeding 1 L capacity

,” UN2037, 2.2 (5.1) is revised in Column (2) by correcting the word “agas” to read “gas.” Additionally, to harmonize this proper shipping name and punctuation with international regulations and standards, the word “non-flammable” is revised to read “oxidizing” and enclosed in parentheses, the word “or” is added and italicized before the words “gas cartridges,” and the parentheses enclosing the words “gas cartridges” are removed. The proper shipping name is corrected to read “Receptacles, small, containing gas

or

gas cartridges

(oxidizing) without release device, not refillable and not exceeding 1 L capacity

.” This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Receptacles, small, containing gas (gas cartridges)

flammable without release device, not refillable and not exceeding 1 L capacity

,” UN2037, 2.1 is revised in Column (2) to harmonize proper shipping name with international regulations and standards. The parentheses enclosing “gas cartridges” are removed and the word “flammable” is enclosed in parentheses. Additionally, the word “or” is added and italicized before the words “gas cartridges.” The proper shipping name is corrected to read “Receptacles, small, containing gas

or

gas cartridges

(flammable) without release device, not refillable and not exceeding 1 L capacity

.” This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Receptacles, small, containing gas (gas cartridges)

non-flammable without release device, not refillable and not exceeding 1 L capacity

,” UN2037, 2.2 is revised in Column (2) to harmonize proper shipping name with international regulations and standards. The parentheses enclosing “gas cartridges” are removed and the word “non-flammable” is enclosed in parentheses. Additionally, the word “or” is added and italicized before the words “gas cartridges.” The proper shipping name is corrected to read “Receptacles, small, containing gas

or

gas cartridges

(non-flammable) without release device, not refillable and not exceeding 1 L capacity

.” This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Regulated medical waste, n.o.s.

or

Clinical waste, unspecified, n.o.s. or (BIO) Medical waste, n.o.s.,” UN3291 is revised in Column (2) to include “Biomedical waste, n.o.s.” and “Medical waste, n.o.s.” to clarify that these names may also be used under the HMR and to harmonize the proper shipping names for regulated medical waste with those prescribed in international regulations. This revision appears as a “Remove/Add” in this rulemaking.

The proper shipping names for several “Self-heating solid” materials, specifically UN3088, UN3126, UN3127, UN3128, are revised in Column (2) to remove a comma following the word “Self-heating.” These revisions appear as “Remove/Add” in this rulemaking.

The proper shipping name for the entry “Trinitrophenol, wetted,” UN1344 is 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 is 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 is added.

A new entry “Signals, distress,

ship

,” UN0506 is added.

A new entry “Signals, smoke,” UN0507 is added.

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 are adding 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 are revised in Column (7) as follows:

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

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

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

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

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

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

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

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

The proper shipping name for the entry “Xenon,” UN2036, is 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 the NPRM, we proposed to amend the introductory text and the List of Marine Pollutants to add an allowance for the use of the GHS-based classification criteria for materials toxic to the aquatic environment (marine pollutants) contained in the IMDG Code.

We received several comments [CPTD, COSTHA, DGAC, Deeds, VOHMA] supporting our proposal to maintain the current regulatory approach to facilitate transportation without mandating use of the new GHS-based criteria for determination of a marine pollutant. COSTHA “* * * supports PHMSA's decision not to adopt the new IMDG classification criteria for Marine Pollutants and not to remove Appendix B from the 172.101.” CPTD indicates, “* * * this new classification system is unnecessarily complicated, and * * * would involve an additional layer of complexity without a corresponding public benefit.” Deeds recommends that if we maintain the differentiation between marine pollutants and severe marine pollutants in the List of Marine Pollutants, then PHMSA should adopt the GHS-based criteria in the IMDG Code as the basis for determining whether a marine pollutant is a severe marine pollutant. We disagree. Using the GHS-based criteria to determine a severe marine pollutant runs counter to our proposal not to mandate the use of such criteria. Therefore, for these reasons, in this final rule, we are adopting the amendment as proposed.

We also proposed to remove a number of entries that no longer meet the criteria for a marine pollutant. These entries were inadvertently retained in a rulemaking under Docket HM-215D (66 FR 33316; June 21, 2001 and 67 FR 15743; April 3, 2002). We did not receive any comments opposing the removal of these entries and, therefore, are removing the following entries from the List of Marine Pollutants: “5-Ethyl-2-picoline,” “Ethyl propenoate, inhibited,” “Isopropenylbenzene,” and “2-Phenylpropene.”

One commenter [CPTD] requests that we remove an additional entry (low aromatic mineral spirit (white spirit, low 15-20%)) from the List of Marine Pollutants in Appendix B to § 172.101 because it would not meet the criteria for a marine pollutant using the IMDG Code. The removal of additional entries from the List of Marine Pollutants in Appendix B to § 172.101 is beyond the scope of this rulemaking. We did not propose to remove entries other than those being removed as a correction to an oversight from the HM-215D rulemaking, nor did we request comments on entries based on use of the GHS-based classification criteria in the IMDG Code that should be removed. However, we encourage the commenter to petition PHMSA to remove the entry with data demonstrating that the material would not meet the criteria under the IMDG Code or to apply for approval to have the material excepted as a marine pollutant in accordance with paragraph 5 of the introduction to Appendix B of § 172.101.

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. Unless otherwise noted, we received no comments opposing these proposals; therefore, in this final rule, we are adopting these proposals without change.

For consistency with international regulations, we are amending § 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 in §§ 173.150 and 173.153 of the HMR. 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 are removing Special Provision 36.

Special Provision 137 specifies conditions for exception from the HMR for certain types of vegetable fibers. We are revising this 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 revising the special provision by adding 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 revising 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) that were currently in the HMT. 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 removing 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 removing Special Provision 173. Special Provision 173 provides the option to use an appropriate generic entry listed in the HMT to describe a specific Organometallic material and was only assigned to those Organometallic materials. Because new generic entries have been added to the HMT this special provision only applies to the rulemaking entries that are to be removed, this special provision has become 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. Currently, we assign Special Provision 177 to the entry “Ethanol and gasoline

mixture

or

ethanol and motor spirit mixture or ethanol and petrol mixture,” UN3475. In the NPRM, we proposed to revise Special Provision 177 to specify its application to both gasoline and ethanol/gas mixtures for consistency with UN Recommendations that assign similar provisions to gasoline and mixtures of ethanol and gasoline. One commenter [American Trucking Associations] suggests that the language in Special Provision 177 is confusing in that, as written, Special Provision 177 requires that “gasoline or ethanol and gasoline mixtures must be assigned to

this entry

regardless of variations in volatility,” indicating assignment to a single entry when the special provision is actually assigned to multiple entries. We agree. Therefore, in this final rule, we are revising Special Provision 177 to read “gasoline or ethanol and gasoline mixtures must be assigned to Packing Group II regardless of variations in volatility.”

Special Provision 188 specifies conditions for exception from the HMR for small lithium cells and batteries. We are revising the special provision to require the reporting of incidents that occur as a direct result of a fire, violent rupture, explosion, or a dangerous evolution of heat.

Special Provision 189 specifies conditions for exception from the HMR for medium lithium cells and batteries. We are revising the special provision to require the reporting of incidents that occur as a direct result of a fire, violent rupture, explosion, or a dangerous evolution of heat.

A new Special Provision 198 is being 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 is being 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) and for transportation by aircraft, § 173.159(b)(2).

A new Special Provision 332 is added to specify magnesium nitrate hexahydrate is not subject to the HMR.

A new Special Provision 335 is 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 is 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.

Special Provision N82 references § 173.306 for classification criteria for flammable aerosols. However, classification criteria for flammable aerosols are found in § 173.115, specifically, in paragraph (k). Special Provision N82 is revised to reference § 173.115.

A new Special Provision N90 is 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 is 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 are deleting 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, in the NPRM, we proposed to harmonize with the UN Recommendations by making an appropriate revision to § 172.202(a)(3) 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.

One commenter [Omni] supports the proposal to amend § 172.202(a)(3) to specify that the subsidiary hazard class or division number is not required to be entered when the corresponding subsidiary hazard label is not required. Another commenter [Arkema] requests that we revise § 172.202(a)(3) to clarify that the subsidiary hazard must be entered on shipping papers corresponding to the additional subsidiary labeling required by § 172.402(a)(2), even though the subsidiary hazard is not indicated in Column (6) of the HMT in association with a hazardous material description. The commenter notes that “* * * enforcement personnel take exception to the fact that we identify subsidiary hazards on the shipping papers for some of our materials when a named material does not list a subsidiary in the 172.101 table.”

We do not believe that a revision to § 172.202(a)(3) is necessary for clarification of the requirements as requested by Arkema. Paragraph (a)(3) of this section clearly states that the subsidiary hazard class(es) and division number(s) must be entered in parentheses immediately following the primary hazard class or division number regardless of whether the subsidiary hazard(s) is listed in Column (6) of the HMT. Therefore, in this final rule, we are adopting the revisions to § 172.202(a)(3) as proposed.

We are also revising 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 are revising 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, followed by the letter “G.” We received no comments opposing these proposals; therefore, in this final rule, we are revising paragraph (c) to include a similar exception.

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 final rule, we are adopting the new marking for marine pollutants that has been incorporated into the IMDG Code.

We received one comment [DGAC] indicating a difference between our proposal and the UN Recommendations regarding types of packaging for which the marine pollutant marking is not required. DGAC notes, “* * * [t]he proposal is to except combination packagings whereas the [UN Recommendations] excepts all packagings with a capacity of 5 L or 5 kg.”

We agree with DGAC that the exception applies to both single and combination packagings containing marine pollutants. Therefore, in this final rule, we are revising the

amendment to state that for packages containing marine pollutants, the marine pollutant mark is not required on single packagings or combinations packagings with a net capacity of 5 L or less for liquids or 5 kg or less for solids. We are requiring use of this new marking one year after publication of the final rule.

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.

Section 172.401

Section 172.401 establishes specific requirements for prohibited labeling. We received a petition (P-1494) from 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 U.S. 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 received no comments on our proposal to permit use of the GHS pictograms. Therefore, in this final rule, we are amending § 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 final rule, we are revising 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, we are replacing 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 are authorizing continued use of the current label until January 1, 2013.

Part 173

Section 173.4, 173.4a, 173.4b

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 in 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, we are adopting a new excepted quantity provision for transportation by aircraft and vessel into a new § 173.4a. We stress that we are not removing the existing small quantity provisions in 173.4, but rather limiting the use of these provisions to domestic highway and rail transportation. We also are moving 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 will 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. However in this final rule we are not applying the full training requirements of Part 172 Subpart H to excepted quantities. Instead we are requiring that persons who offer or transport excepted quantities be familiar with the requirements of 173.4a. Small quantity exceptions are 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 the NPRM, we solicited comments regarding the potential for confusion and any cost impacts resulting from this change. One commenter [DGAC] indicates the proposed method is complex and unduly restrictive. DGAC notes, “* * * that for the most part the excepted quantity requirements mirror the existing requirements in § 173.4(a)” and “* * * [f]urther, the proposal is disruptive to multimodal consistency with one set of requirements * * * applicable to land transport and the other applicable to air and sea transport.” Additionally, DGAC indicates that the new § 173.4a is more restrictive that current § 173.4 and sees no safety basis for imposing these additional restrictions. DGAC recommends against incorporating the excepted quantities directly into the HMR but rather to allow domestic transport of excepted quantities under the ICAO TI or IMDG Code in accordance with authorizations provided in Subchapter C of Part 171 and recommends revising § 173.4(a)(10) by adding an alternative to allow transport of small quantities of

hazardous materials in accordance with excepted quantities provisions in the ICAO TI.

Another commenter [API] notes that Special Provision A59 continues to reference § 173.4 even though the section is no longer applicable to transport by aircraft. Special Provision A59 allows devices containing ethylene oxide to be transported by aircraft in accordance with packaging provisions in § 173.4. API recommends PHMSA revise the language in Special Provision A59 to reference new § 173.4a for excepted quantities which is applicable to air transport. API notes this would be consistent with ICAO TI Special Provision 131 which allows devices containing ethylene oxide to be transported in accordance with “excepted quantities” provisions. We agree. In this final rule, we are revising Special Provision A59 to reference the excepted quantities packaging requirements in § 173.4a. We are also making several additional conforming amendments to other provisions in the HMR to reflect the new § 173.4a. The sections we are revising are as follows:

—§ 172.102, Special Provisions 136, A59, A60;

—§ 172.402(d)(1);

—§ 172.500(b)(5);

—§ 173.24(c)(2); and

—§ 175.700(a).

Finally, UPS is concerned that the one-year transition period prior to prohibiting the air transport of packages of small quantities in conformance with § 173.4 is insufficient. UPS indicates, “* * * This will be a very hard transition for air carriers to enforce, as the current package marking for a Small Quantity shipment * * * does not stand out, and therefore cannot easily be identified and rejected by package handlers.” UPS adds that it anticipates shippers will continue to transport small quantities domestically by air according to current § 173.4 beyond the transition date after which shippers would be required to conform with § 173.4a. UPS recommends that PHMSA allow the air transport of small quantities in conformance with § 173.4 for a period of several years to allow for transport of packages filled prior to the January 1, 2009 effective date until they are used up. We disagree. The current provisions of § 173.4 require a marking certifying conformance with the section. This certification requirement signifies knowledge of the requirements of the section even though training is not prescribed. We expect shippers benefiting from the exceptions provided in § 173.4 to take steps to ensure awareness of any changes that may be made to the requirements of the section and to respond accordingly, just as we would expect air carriers to be diligent in their acceptance practices with regard to small quantities prepared under § 173.4 even though training is not required. We believe a one-year transition period is sufficient for air shippers and air carriers to make necessary changes and conform to the revised requirements of § 173.4. Therefore, in this final rule, we are not revising the transition date for small quantities transported in accordance § 173.4. However, we are revising the certification marking in § 173.4(a)(10) to communicate that the packages prepared in conformance with the section may only be transported domestically by highway or rail. Also, to further clarify, where domestic transport by highway or rail is impractical, materials must be transported in conformance with the requirements for excepted quantities in § 173.4a.

Two commenters [DGAC, FCC] express disappointment that we did not include fuel cell cartridges as part of the small quantity exceptions in § 173.4. FCC notes, “* * * We see no safety basis for precluding use of the small quantity exception provision for fuel cells * * *” Both DGAC and FCC recommend not adopting this amendment. While we considered extending the allowance for fuel cell cartridges to the excepted quantity provisions this would create a confusing inconsistency with the ICAO TI. Fuel cell cartridges by design offer a high degree of integrity and may contain a relatively small amount of hazardous material. Therefore, we believe the relative hazard associated with surface transportation of these materials is minimal. In this final rule we will permit fuel cell cartridges to be transported by highway or rail in accordance with the small quantity exceptions in § 173.4.

One commenter [UPS] notes a concern that packages of materials shipped as de minimus quantities could be misunderstood as undeclared shipments by carriers processing damaged or stray packages. UPS recommends that PHMSA require a marking on the package to certify conformance with the de minimus exceptions section. We disagree. Based on our determination that de minimus materials do not pose an unreasonable risk to health and safety or property, we do not believe a hazard communication marking is necessary. Therefore, in this final rule, we are adopting the new § 173.4b as proposed.

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 materials (infectious substances). Under the Docket HM-218D final rule, we 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. One commenter [Regulatory Resources Inc.] expresses 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 revising 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 final rule, we are adding a new paragraph to clarify that IBCs and Large Packagings that are not designed and tested for stacking may not be stacked during transportation. In addition, we are clarifying 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, in the § 172.101 HMT and add the new entry to the explosives assigned Packaging Instruction 114(b) in § 173.62. In its petition, SAAMI states that the UN Sub-Committee of Experts (UNSCOE) 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 amending § 173.62 to include a new entry UN0509 to the Explosives Table, which specifies the Packing Instruction assigned to each explosive, and adding a reference to the new entry in Packing Instruction 114(b). We also are including a “D” in column 1 of the table entry to designate 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. 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 addition 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 are revising this instruction to specify that, for UN0508, inner packagings are not required if drums are used as the outer packaging. We also are adding a new sentence under Packing instruction 114(b) to prohibit metal packagings for UN0508. In addition, we are clarifying 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° (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 200 kPa gauge (29 psig). In order to enhance safety and to maintain global uniformity with respect to the classification of Division 2.2 gases, we are adopting these amendments. With respect to the revised pressure limit, for the convenience of the reader the pressure is now expressed as both gauge pressure and absolute pressure. In order to enhance safety and to maintain global uniformity with respect to the classification of Division 2.2 gases, we are adopting these amendments. Additionally, we are re-designating 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 requires the use of specific test and calculation methods for a more accurate determination of the oxidizing ability of Division 2.2 gases. Additionally, we are revising § 171.7 to incorporate these ISO standards.

Section 173.137

Section 173.137 establishes packing group criteria for corrosive (Class 8) materials. In this final rule, we are adding 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, and 173.307

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 articles containing not more than 100 mg of mercury, gallium or an inert gas, which are excepted if certain conditions specified in Special Provision A69 of the ICAO TI are met. Frequently, the ICAO TI contain 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. To enable air carriers to ascertain that a shipment conforms to applicable requirements, in the July NPRM, we proposed to adopt a number of amendments consistent with recently adopted amendments in the ICAO TI. Specifically we proposed to require the shipper to include on the air waybill accompanying a shipment an indication that a hazardous material or article has met the applicable conditions for transport. We stated that this indication would allow freight forwarders and operators to verify that the shipper is aware of, and has complied with, the applicable regulatory requirements. Additionally, we stated that it would reduce the likelihood of unnecessary carrier delays through improved communication.

As discussed earlier in this preamble, a number of commenters oppose this proposal. For example, commenters oppose the certification provisions because the HMR do not specifically require an air waybill and express concern that the proposed certification requirement means that all air shipments must now be accompanied by a waybill. Commenters also note that use of an air waybill is not standard across the air carrier industry, and that the industry is moving towards a paperless system for shipments. In addition, commenters state that in many cases the carrier or the freight forwarder prepares the air waybill; these commenters thus disagree with PHMSA's premise that including certification on an air waybill allows a carrier or freight forwarder to verify that the shipper has complied with applicable requirements. Commenters also suggest that we significantly under-estimated the paperwork burden that would result from implementation of the proposed certification requirement.

Based on our review of comments and on past history of safe transportation of these excepted materials, in this final rule, we are not adopting the requirement as proposed. We will continue to review the merits of the proposal and may reconsider the proposed amendments or a similar revised amendment for a future rulemaking.

Section 173.168

Section 173.168 establishes the requirements for the transportation of chemical oxygen generators. A chemical oxygen generator that is transported with a means of initiation attached must be approved prior to shipment. This approval requirement applies to chemical oxygen generators with either an explosive or non-explosive means of initiation attached. As currently drafted, it appears that the requirement to obtain an approval applies only to oxygen generators with an explosive means of initiation. In this final rule, we are revising paragraph (a) to clarify the

approval requirements for a chemical oxygen generator.

Section 173.196

Section 173.196 establishes packaging requirements for Category A infectious substances. In this final rule, we are revising 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 final rule, we are adding 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 addition of new packaging § 173.206 are as follows:

UN1724 Allyltrichlorosilane, stabilized

UN1728 Amyltrichorosilane

UN1747 Butyltrichlorosilane

UN1753 Chlorophenyltrichlorosilane

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

UN2987 Chlorosilanes, corrosive, n.o.s.

UN298

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