[Federal Register: May 14, 2010 (Volume 75, Number 93)]
[Proposed Rules]
[Page 27273-27284]
[DOCID:fr14my10-29]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171 and 173

[Docket No. PHMSA-07-29364 (HM-231A)]
RIN 2137-AE32

Hazardous Materials; Packages Intended for Transport by Aircraft

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes to amend requirements in the Hazardous
Materials Regulations to enhance the integrity of inner packagings or
receptacles of combination packagings containing liquid hazardous
material by ensuring they remain intact when subjected to the reduced
pressure and other forces encountered in air transportation. In order
to substantially decrease the likelihood of a hazardous materials
release, the proposed amendments: prescribe specific test protocols and
standards for determining whether an inner packaging or receptacle is
capable of meeting the pressure differential requirements specified in
the regulations and, consistent with the 2011-2012 edition of the
International Civil Aviation Organization Technical Instructions for
the Safe Transport of Dangerous Goods by Aircraft (ICAO Technical
Instructions), require the closures on all inner packagings containing
liquids within a combination packaging to be secured by a secondary
means or, under certain circumstances, permit the use of a liner.

DATES: Comments must be received by July 13, 2010.

ADDRESSES: You may submit comments identified by the docket number
PHMSA-07-29364 (HM-231A) by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. Note
that all comments received will be posted without change to the docket
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: Michael G. Stevens, Office of
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590-0001, telephone<PHONE_NUMBER>, or
Janet McLaughlin, Office of Security and Hazardous Materials, Federal
Aviation Administration, U.S. Department of Transportation, 490
L'Enfant Plaza, SW., Room 2200, Washington, DC 20024, telephone (202)
385-4897.

SUPPLEMENTARY INFORMATION:

Contents

I. Background
II. Problem
III. ANPRM
    A. Studies and Data
    B. Pressure Differential Testing
    C. Alternatives to Testing
    D. Packaging Components
IV. Summary of Proposals in This NPRM
    A. Incorporation of Revised ICAO TI Packaging Provisions
    B. Enhanced Pressure Differential Capability Standard
    C. Combined Enhanced Pressure Differential Capability Standard
and Incorporation of Revised ICAO TI Packaging Provisions
    D. Vibration Testing
V. Regulatory Analyses and Notices

    A. Statutory/Legal Authority for This 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
Regulatory Policies and Procedures
    F. Unfunded Mandates Reform Act
    G. Paperwork Reduction Act
    H. Regulatory Identifier Number (RIN)
    I. Environmental Assessment
    J. Privacy Act

I. Background

    The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
authorize a variety of packaging types for the transportation of
hazardous materials in commerce. Combination packagings are the most
common type of packaging used for the transportation of both liquid and
solid hazardous materials by aircraft. A combination packaging consists
of one or more inner packagings or one or more articles secured in a
non-bulk outer packaging.\1\
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    \1\ As a receptacle for a liquid or solid, a non-bulk outer
packaging is one that has a maximum capacity of 450 liters (119
gallons) and, for solid contents, a maximum net mass of 400 kg (882
pounds). Sec.  171.8.
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    Requirements for combination packagings used to transport hazardous
materials are set forth in parts 173 and 178 of the HMR. Certain
classes and quantities of hazardous materials may be transported in
``non-UN standard'' combination packagings, which are subject only to
the general requirements in subpart B of part 173, including the
following:

--The packaging must be designed, constructed, filled, and closed so
that it will not release its contents under conditions normally
incident to transportation. Sec.  173.24(b)(1).
--The effectiveness of the package must be maintained to withstand
minimum and maximum temperatures, changes in humidity and pressure, and
shocks, loadings and vibrations normally encountered during
transportation. Sec.  173.24(b)(2).
-- Each non-bulk packaging must be capable of withstanding, without
rupture or leakage, the vibration test procedure specified in Sec.
178.608 of this subchapter, which sets forth a specific test method to
measure the vibration capability of a non-bulk packaging. Sec.
173.24a(a)(5).

    A packaging authorized for transportation by aircraft must also be
designed and constructed to prevent leakage that may be caused by
changes in altitude and temperature. Sec.  173.27(c)(1). Inner
packagings of combination packagings for which retention of liquid is a
basic function must be capable of withstanding the greater of: (1) An
internal pressure that produces a gauge pressure of not less than 75
kPa for liquids in Packing Group III of Class 3 or Division 6.1 and 95
kPa for other liquids; or (2) a pressure related to the vapor pressure
of the liquid to be transported as determined by specified formulae.
Sec.  173.27(c). A number of voluntary industry consensus standards
have been developed, some of which include test methods intended to
evaluate the effects of pressure differential on packagings at the
various altitudes experienced in the air transport environment. These
standards-setting organizations have also conducted measurement studies
and testing to identify the transportation forces a package encounters
and developed integrity standards and industry best-practices to ensure
the pressure differential capability standard is met. This process
assists all parties to design and manufacture packaging with quality
standards that could be used to verify conformance with capability
requirements. However, these voluntary industry standards are not
included or referenced in the HMR, and the HMR do not provide specific
guidance to shippers or packaging manufacturers as to how to comply
with the pressure differential standards.
    Subparts L and M of part 178 contain UN performance standards for
non-bulk packagings adopted in PHMSA's ``HM-181'' final rules in 1990
and 1991. 55 FR 52401 (December 21, 1990); 56 FR 66124 (December 20,
1991). These performance standards criteria replaced the former
detailed construction specifications and provide packaging design
flexibility that is not possible with detailed design specifications.
The performance criteria require design qualification testing and
periodic retesting to verify whether a design type meets the
performance standards. For combination packagings, drop and stacking
testing are required, and the packaging must be ``capable'' of passing
a vibration test. Sec. Sec.  178.603, 178.606, 178.608. The packaging
(including the inner packagings) must be closed for testing, and tests
must be carried out on the completed package that is prepared for
testing, in the same manner as if prepared for transportation. Sec.
178.602.
    In the HM-181 advance notice of proposed rulemaking (47 FR 16268
(April 15, 1982)) and the notice of proposed rulemaking (52 FR 16482
(May 5, 1987)), we proposed to require the hydrostatic pressure test in
Sec.  178.605 to be performed on all inner packagings of UN standard
combination packaging designs intended for transportation by aircraft.
The pressure test would have addressed pressure differentials
encountered during air transportation. This amendment was not adopted
in the final rule. 55 FR 52402 (December 21, 1990). Instead, consistent
with the ICAO Technical Instructions and the HMR in effect at the time,
we elected to continue the requirement for all packagings containing
liquids offered or intended for transportation aboard aircraft to be
capable of withstanding without leakage a specified pressure
differential. Sec.  173.27(c).
    Since that time, ICAO has added a note to Part 4; 1.1.6 of the
Technical Instructions stating that the capability of a packaging to
meet the pressure differential performance standard should be
determined by testing, with the appropriate test method selected based
on packaging type. However, ICAO has not adopted specific test methods
in the Technical Instructions.
    Because the HMR do not specify test methods for verifying that a
packaging meets the pressure differential requirement, some shippers
and packaging manufacturers have used historical data (i.e., lack of
incidents) and other methods (e.g. computer modeling, analogies, or
engineering studies) to demonstrate that their packagings satisfy the
pressure differential capability requirement. Shippers and packaging
manufacturers have differing views on how the requirements are to be
verified, and use various test methods to demonstrate compliance. This
leads to a non-uniform approach, and it is difficult for PHMSA and FAA
to verify whether a package meets the pressure differential requirement
because no test report, documentation, or other proof of compliance is
required by the HMR. Additionally, it does not provide an effective
method of oversight to determine whether regulatory requirements are
meeting actual forces encountered in transportation. If there is no
control, the evaluation of quality and failure analysis is not
possible. Even the most conscientious and safety-focused shippers have
difficulty understanding how to comply with the requirements in Sec.
173.27. Other shippers and packaging manufacturers may be taking
advantage of the absence of specific requirements for verifying
compliance.
    The absence of specific test methods in the HMR leads to
inconsistencies in package integrity and results in varying levels of
compliance among shippers. References to the pressure differential
requirements in Sec.  173.27(c) are found throughout the regulations
for packagings and packages offered for air transportation and
transported by

aircraft without methods specified to verify compliance with this
critical safety requirement. This results in wide disparities in
packaging quality and the potential for sub-standard packages to be
introduced into the air transport environment, increasing the
probability of releases of hazardous materials aboard aircraft. In
addition, some shippers or manufacturers may not realize that inner
packagings of non-UN standard combination packagings are required to
meet the pressure differential capability requirements of the HMR and
the ICAO Technical Instructions. This includes packagings authorized
under the limited quantity, consumer commodity, and Category B
Biological Substance exceptions. A significant percentage of aircraft
incidents involving liquid hazardous materials appear to result from
failures of these packagings. We strongly believe the introduction of
specific test methods and amendments that clarify the requirements for
packagings offered for transportation by aircraft will enhance safety
by reducing risk and level the playing field for shippers,
manufacturers and air carriers alike.

II. Problem

    When a package reaches high altitudes during transport, it
experiences low pressure on its exterior. This results in a pressure
differential between the interior and exterior of the package since the
pressure inside remains at the higher ground-level pressure. Higher
altitudes create lower external pressures and, therefore, larger
pressure differentials. This condition is especially problematic for
combination packagings containing liquids. When an inner packaging,
such as a glass bottle or plastic receptacle, is initially filled and
sealed, the cap must be tightened to a certain torque to obtain sealing
forces sufficient to contain the liquids in the packaging. This will
require certain forces to be placed upon the bottle and cap threads as
well as the sealing surface of the cap or cap liner to ensure the
packaging remains sealed. Once at altitude, due to the internal
pressure of the liquid acting upon the closure combined with the
reduced external air pressure, the forces acting on the threads and the
forces acting on the sealing surfaces will not be the same as when the
packaging was initially closed. Under normal conditions encountered in
air transport (26 kPa reduction in pressure at 8000 ft), the pressure
differentials are not overly severe. However, if the compartment is
depressurized at altitude or if the compartment is not pressurized at
all, such as on certain ``feeder'' aircraft, the pressure differential
may be severe enough to cause package failure and release of the
hazardous materials in the aircraft. High-altitude stresses are
encountered when cargo and feeder aircraft transport packages in non-
pressurized or partially-pressurized cargo holds.
    A seemingly ``minor'' incident can quickly escalate and result in
irreversible, possibly catastrophic, consequences. For example, a
closure failure of an inner container could cause an outer package to
fail, resulting in fumes, smoke or flammable liquid acting as a
catalyst to a more serious incident. The interaction of events
occurring on aircraft, such as electrical fires, static electricity or
other materials interacting with the leaking material, could result in
a catastrophic event. The successful testing of inner packaging designs
may lower the likelihood of such an event. Taking a systems-safety
approach that includes multiple safety processes and redundancies can
prevent a minor incident from becoming potentially much worse.
    PHMSA, FAA and, more recently, several international competent
authorities all agree that the testing of design samples or prototypes
of inner packagings or receptacles for pressure differential capability
is key to preventing package failure in air transport. Testing also
forms the basis of current performance standards in both the HMR and
international regulations. Additionally, incident data and compliance
verification testing of combination packagings intended for air
transport and readily available in the marketplace indicate that an
unacceptable number of packagings are not able to withstand pressure
differential conditions normally incident to air transportation. Again,
the packagings of particular concern are packagings that must be
``capable'' of meeting pressure differential requirements, but are not
required to be certified as meeting a specific performance test method
to verify compliance with pressure differential performance standards.
Incident data continue to show that packagings are leaking aboard
aircraft; this likely is in part attributable to the fact that the HMR
do not specifically provide test methods for determining that
packagings meet the minimum pressure differential performance necessary
to withstand conditions of air transport. It cannot be overemphasized
that any incident, such as a package failure, involving hazardous
materials in air transportation is unacceptable.
    Four recent studies simulated the impact of high-altitude on
package integrity. These conditions result in extreme changes in
pressure when compared to packages being transported at or close to sea
level. These four studies were discussed in detail in the ANPRM
published under this docket [73 FR 38361; July 7, 2008] and are
available for review at http://www.regulations.gov.
    In the first study, FAA analyzed incident data from the DOT
Hazardous Materials Information System (HMIS) for the years 1998 and
1999 and focused on properly declared hazardous material shipments. The
study concluded that of 1,583 air incidents reported to PHMSA, a
failure of inner packagings in combination packaging designs
contributed to 333 spills or leaks. In the second study, United Parcel
Service (UPS) presented its findings to the American Society of Testing
and Materials (ASTM) outlining the conditions that packages experience
in the air transport environment. In 2002, the FAA initiated a study
with Michigan State University (MSU) to replicate actual air and pre-
and post-truck transportation conditions to determine which conditions
contribute to package failures. In this third study on conditions
experienced in air transportation, FAA examined the effects of
vibration alone, altitude alone, and a combination of vibration and
altitude on the performance of UN standard hazardous material
combination packages containing liquids. In 2003, PHMSA also initiated
a study with MSU to compare the HMR requirements and the testing used
in the FAA/MSU study to provide for a more thorough evaluation of the
performance of liquid hazardous materials in combination packagings
when subjected to the conditions of air transport. This fourth round of
testing was conducted on a smaller number of packaging designs;
however, a much greater number of packagings of each design were tested
in the study.
    During the first half of 2007, PHMSA conducted a comprehensive
assessment of hazardous materials transportation incidents occurring in
air transportation from 1997 through 2006. This study and its
corresponding data may be accessed in the public docket for this
rulemaking. The study concluded that there has been no appreciable
reduction in package failures over the past 10 years. It is estimated
that 191,429 tons of liquid hazardous materials contained in
approximately 16.9 million combination packages are transported by
aircraft annually. Of that total, the analysis concluded that
approximately 483 combination packagings containing liquids fail in air
transportation each

year with an average of two incidents reported as ``serious.'' \2\
However, any incident, such as a package failure, involving hazardous
materials in air transportation is unacceptable.
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    \2\ The HMR define a ``serious incident'' as one that involves
one or more of the following: (1) A fatality or major injury caused
by the release of a hazardous material; (2) the evacuation of 25 or
more persons as a result of release of a hazardous material or
exposure to fire; (3) a release or exposure to fire which results in
the closure of a major transportation artery; (4) the alteration of
an aircraft flight plan or operation; (5) the release of radioactive
materials from Type B packaging; (6) the release of over 45 liters
(11.9 gallons) or 40 kilograms (88.2 pounds) of a severe marine
pollutant; or (7) the release of a bulk quantity (over 450 liters
(119 gallons) or 400 kilograms (882 pounds)) of a hazardous
material. Sec.  171.15.
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    The 2007 study concluded that of the approximately 483 air
incidents reported each year, at least 44 percent involved the failure
of inner packaging closures within a combination outer packaging as the
primary cause. Such failures could have been the result of pressure
differential (packages closed at sea level subjected to lower pressure
on planes), stress relaxation of the closure (closures that appear
tight but loosen during transportation), improper closures, vibration,
or some other cause. The analysis also suggested that most incidents
involved combination packagings containing flammable liquids (e.g.,
paint and paint related material) of varying degrees of hazard. Some
additional statistical data from the 2007 incident review include:
     Over 40% of failures of combination packages containing
liquids in air transportation involve closures and/or inner
receptacles.
     Flammable liquids are the most common liquid hazardous
materials released from failed packages in air transportation. If such
materials found an ignition source, it could result in a fire or
explosion.
     In incident years 2005-2006, 18 of 953 incidents involving
combination packagings containing liquids, or 2%, occurred on
passenger-carrying aircraft. Although low when compared to incidents
occurring on cargo-carrying aircraft, this percentage of package
failures continues to be a troubling statistic.
     Combination packages containing liquids that fail in air
transportation release an average 2 liters (0.5 gallons) of liquid
hazardous materials.

III. ANPRM

    On July 7, 2008, PHMSA published an advance notice of rulemaking
(ANPRM; 73 FR 38361) seeking to identify cost-effective solutions to
reduce incident rates and the potential severity of incident
consequences without placing unnecessary burdens on the regulated
community. We solicited comments on how to accomplish these goals,
including measures to: (1) Enhance the effectiveness of performance
testing for packagings used to transport hazardous materials on
aircraft; (2) more clearly indicate the responsibilities of shippers
that offer packages for air transport in the HMR; and (3) authorize
alternatives for enhancing package integrity. We asked a series of
questions related to the packaging of liquid hazardous materials in
combination packagings that are offered for transportation and
transported by aircraft. A total of 13 persons submitted comments in
response to the ANPRM; the list of commenters includes:

AHS Association of Hazmat Shippers, Inc.
Ecolab Ecolab, Inc.
ALPA Air Line Pilots Association, International
COSTHA The Council on Safe Transportation of Hazardous Articles,
Inc.
IOPP Institute of Packaging Professionals
CPC Chemical Packaging Committee
FedEx Federal Express
ISTA International Safe Transit Association
ASTM ASTM International
ICC ICC The Compliance Center, Inc.
MSU Michigan State University School of Packaging
Viking Viking Packing Specialist
DGAC Dangerous Goods Advisory Council

    Commenters generally agree that regulatory changes are necessary to
address safety issues related to the transportation of hazardous
materials in non-UN standard packagings on board aircraft. However,
commenters had varying views on the scope of the safety problem or
specific regulatory amendments necessary to eliminate or reduce
problems should they exist. Some commenters also questioned the
validity of studies conducted and analysis of the underlying data used
that motivated PHMSA to initiate rulemaking action. These comments are
summarized below.

A. Studies and Data

    As indicated previously, recent studies have simulated the impact
of high altitudes on packaging integrity. These studies suggest that
the current testing requirements (or lack thereof) under the HMR may
not adequately address the conditions encountered during air
transportation. Moreover, a review of incident data conducted by FAA
and PHMSA supports the conclusion that some combination packaging
designs used to transport hazardous materials by aircraft may not meet
the capability standards mandated under the HMR. Indeed, the testing
conducted suggests that the capability standards themselves may not be
sufficiently rigorous to ensure that packagings maintain their
integrity under conditions normally incident to air transportation.
Study data, incidents, and several years of feedback from industry
indicate that, without specific standards and protocols, a consistent
approach to compliance cannot be achieved. This can lead to a
potentially unsafe condition.
    Some commenters cited concerns over how two of the studies were
conducted or suggested that the problems discussed in the ANPRM may not
be as serious as presented. For example, Ecolab identifies what it
contends are at least three discrepancies in the two air packaging
integrity studies conducted by MSU in 2002 and 2003 on behalf of PHMSA
and FAA. Ecolab contends that these discrepancies, identified by CPC
and published in a 2006 Hazmat Packager and Shipper article, occurred
because some of the tests utilized for the studies were not conducted
in accordance with the HMR or corresponding international standards.
One study allegedly used an improper closure design that differed from
the originally tested design. CPC asserted that the improper closure
design used in the study raised the number of packaging failures from
14 to 42, an increase of 75%. In its comments, Ecolab contends that a
successfully tested package will not leak when closed properly and
subjected to normal conditions of air transport. As a result of
conclusions drawn from these initial studies and to address challenges
made to the assumptions used in their methodology, further studies were
budgeted and carried out. PHMSA and FAA acknowledge that some of the
studies utilized packagings that did not conform in all respects with
HMR requirements. The characteristics of the packagings tested were
fully disclosed in the study reports. We do not agree that the minor
differences in the closures used affects the conclusions of the
studies. We note that the studies were not used to determine compliance
with HMR requirements, but rather to measure the capability of
commercially available packaging designs to withstand the unique
conditions encountered in air transportation.
    Although most commenters support the actual testing of inner
packaging designs for pressure differential capabilities, several
commenters doubt that incidents are occurring in air transport as a
result of the lack of actual testing. AHS notes that incident reports
submitted to PHMSA in accordance with reporting requirements in Sec.
171.16 of the HMR do not indicate whether an inner packaging failed
because it had

not been tested or because it was not capable of withstanding forces
encountered in transportation. We note that it is highly unlikely that
a carrier or other entity without intimate knowledge of a packaging's
design or overall integrity would be able to report, as a root cause,
that an incident that occurred in air transportation resulted from a
lack of actual testing or the packaging's inability to withstand the
forces inherent to transportation by aircraft. However, by carefully
analyzing available incident data and conducting controlled laboratory
studies of commercially available packaging designs, we can conclude
that the actual testing for pressure differential capability was either
conducted incorrectly or not conducted at all.
    COSTHA contends that PHMSA should not be alarmed if leakage from an
inner packaging is contained within its outer packaging and suggests
that seepage from a closure over time should be evaluated differently
than a complete failure where the entire contents of an inner packaging
are released within an outer packaging. We disagree. A successfully
tested and properly filled and closed inner packaging design should not
leak under normal conditions encountered in air transportation.
Additionally, an inferior inner packaging design or component would be
identified through the pass/fail criteria when originally tested.
Because the primary receptacle within a combination packaging system is
the most important component of that system in air transport, it should
not fail except under extreme or highly abnormal conditions.
    Regarding the distribution hazards experienced in today's air
transport environment, Ecolab asserts that shipments have always been
subjected to multiple flight segments and any consequences resulting
from that environment. Ecolab is correct; however, although shipments
have routinely utilized multiple flight segments in the past, the
proliferation of sort systems and feeder aircraft systems has changed
the environment shipments normally encountered during transit. Today,
air carriers use multiple mechanical handling systems to sort packages,
and the number of distribution points has grown with the natural
expansion of commerce.
    In its comments, Ecolab states that better enforcement of existing
regulations related to packaging integrity is key to reducing the
number of incidents in air transportation. We agree. Once verifiable
and repeatable testing standards are adopted in the HMR, shippers,
packaging test labs, and government regulators can all measure
packaging integrity using the same process, procedures, and protocols.
Consistency is the most efficient and effective way to measure success
or failure. Ecolab also notes that, according to PHMSA's HMIS incident
database, human error is cited as an accident cause six times more
frequently than packaging failure. An example of human error could be
the deliberate or inadvertent consequences resulting from failure to
follow a packaging manufacturer's customer notification or closure
instructions. An example of packaging failure would be differences in
manufacturing tolerances that result in leakage (failure) from an
otherwise properly closed inner packaging design. Again, this supports
the multi-layered safety system concept.

B. Pressure Differential Testing

    In the ANPRM, we noted that because specific test methods are not
included in the HMR or the ICAO Technical Instructions, there are
inconsistencies in package integrity and varying levels of compliance
among shippers. For example, because the pressure differential and
vibration capability standards for combination packagings are not
required to be verified by test protocols, some shippers (self-
certifiers) or manufacturers have used historical shipping data,
computer modeling, analogies to tested packagings, engineering studies,
or similar methods to determine that their packagings meet pressure
differential and vibration capability standards.
    Shippers, carriers, packaging manufacturers, and testing facilities
generally agree that the current capability requirements for air
packagings are difficult to comply with and suggest that specific test
methods designed to demonstrate that packagings will withstand
conditions encountered during air transportation should be specified in
the HMR. Ecolab states that the current regulatory language in the HMR
regarding the pressure differential capability of inner packagings
should be replaced with recognized industry standards for testing and
no additional testing should be proposed. ALPA recommends that the HMR
incorporate the language contained in the ICAO Technical Instructions
clarifying test methods and responsible parties. For example, the ICAO
Technical Instructions suggest test methods appropriate for certain
types of inner packagings and liquid hazardous materials in order to
promote compliance with the prescribed performance standard. ALPA
contends the lack of standardized, easily understandable testing
protocol contributes to incidents in air transportation. Ecolab and
Viking both agree that, to properly determine the capability of a
packaging design, it must first be tested. ISTA asserts that the
simultaneous combination of low pressure and vibration exerted on a
package is the only way to accurately replicate conditions encountered
by a package in air transportation.
    The HMR and ICAO Technical Instructions both require that a shipper
consider the pressure differential capability for an inner packaging
intended to contain a mixture or solution based on its vapor pressure.
Many commenters agree that determining the vapor pressure of a mixture
or solution is problematic, costly, and does not materially contribute
to reducing the likelihood of packaging failure. Ecolab believes that a
95 kPa differential capability is a realistic and attainable indication
of inner packaging integrity and that the 75 kPa capability for some
hazard classes and packing groups should be eliminated for clarity and
increased safety. In addition, Ecolab states that PHMSA should codify
any testing protocol adopted in Subpart M of Part 178. Because the
proposed amendments in this notice apply to non-UN standard packagings
as well as UN standard packagings, and the Part 178 requirements apply
to UN standard packagings only, it is appropriate that the amendments
proposed in this notice be codified in Sec.  173.27. We appreciate and
understand commenter frustration with regard to calculating the vapor
pressure of a mixture or solution to determine the appropriate
packaging capable of withstanding the prescribed pressure differential.
In this NPRM, we are proposing an alternative method that can be used
to calculate the appropriate packaging required for a mixture or
solution without testing to determine vapor pressure.

C. Alternatives to Testing

    The HMR and ICAO Technical Instructions both allow a liquid
hazardous material to be contained in an inner packaging that does not
itself meet the pressure differential performance standard, provided
that the inner packaging is packed within a supplementary packaging
that does meet the pressure requirements. In their comments, AHS and
ICC ask PHMSA to retain in the HMR the option for a shipper to use
supplementary packaging that meets the pressure differential
requirements. PHMSA agrees with commenters on this issue and is not

proposing to amend the HMR to do otherwise.
    The HMR currently permit the use of variations in inner packagings
of a tested combination package, without further testing of the
package, provided an equivalent level of performance is maintained
under conditions prescribed in Sec.  178.601. ICC states that a
packaging designed to successfully withstand the Sec.  178.601(g)(2)
Variation 2 test protocols should not be required to contain inner
packagings capable of meeting the pressure differential and vibration
capabilities of the HMR. We disagree. A primary inner packaging or
receptacle of known or questionable inferiority is unacceptable in air
transportation regardless of whether the outer packaging is of a higher
integrity. No other commenters opposed actual testing of inner
packagings of combination packagings intended to contain liquids for
transportation by aircraft.
    ICAO recently adopted revised packaging instructions for
incorporation in the ICAO Technical Instructions that will become
effective January 1, 2011. The new packing instructions require a
secondary means of closure for all liquids in combination packagings.
This requirement may be satisfied by using a liner or other form of
containment when the secondary means of closure cannot be applied.
Inner packagings containing liquids of Packing Group I must be placed
in rigid leakproof receptacles with absorbent material before placing
them in outer packagings of a combination package. None of the comments
submitted to the ANPRM oppose this requirement; those who did comment
on this requirement support its adoption in the HMR.

D. Packaging Components

    Many commenters state that pressure differential and vibration
capability standards should apply to both specification and non-
specification packaging designs. Ecolab asserts that a properly tested
and closed inner packaging design offers no risk in air transport. In
evaluating the inherent risks assumed in air transportation and the
potential for high consequence events should an incident occur, ALPA
supports multiple layers of redundancy to include actual testing of
inner packaging designs and the use of liners, absorbent material, and
secondary means of closure. Commenters agree that the interaction
between an inner packaging containing a liquid and its closure are
critical in air transport. COSTHA believes that if any component of a
tested design is changed, and it is not an exact replacement, quality
review and testing is required. Viking believes that a successfully
tested inner packaging is only one (albeit a major one) part of a
closure system that also uses a protective liner and is properly
oriented when stored or transported. PHMSA and FAA both agree that the
verification of packaging integrity through testing and the additional
redundant amendments proposed in this notice will ensure consistency in
the quality of packagings used for the air transport of liquid
hazardous materials and mitigate or eliminate the consequences of an
incident or accident should one occur.

IV. Summary of Proposals in This NPRM

    Because aircraft accidents caused by leaking or breached hazardous
materials packages can have significant or catastrophic consequences,
the air transportation of hazardous materials requires clear standards,
exceptional diligence, and attention to detail. To address the
regulatory deficiencies previously described in detail, we are
proposing amendments to the HMR to strengthen the integrity of packages
intended for transport by aircraft.
    Most commenters support adoption of the ICAO Technical Instructions
requirement for a secondary means of closure and utilization of a liner
if such secondary means of closure is infeasible or impracticable.
Further, most commenters agree that the most effective means to ensure
that combination packagings are capable of meeting specified
performance standards is actual testing. We agree. Therefore, in this
NPRM we are proposing to adopt the new ICAO Technical Instructions
requirements for combination packagings and test protocols that may be
used to demonstrate that such packagings conform to applicable
performance standards. If adopted, these amendments will add clarity to
the processes required in determining whether a packaging design is
capable of meeting the forces encountered in air transportation. We are
confident that these enhancements to current regulatory requirements
will result in a higher level of safety in air transportation by
reducing the likelihood of combination package failures in air
transportation.
    The following is a summary of the proposals in this NPRM.

A. Incorporation of Revised ICAO Technical Instructions Packaging
Provisions

    Currently under the HMR, stoppers, corks, or other such friction-
type closures must be held securely, tightly, and effectively in place
by positive means. See Sec.  173.27(d). However, a screw-type closure
on any packaging must only be secured to prevent the closure from
loosening due to ``vibration or substantial change in temperature.'' We
have stated in letters of clarification that a secured closure should
incorporate a secondary means of maintaining a seal, such as a shrink-
wrap band or heat sealed liner. (We have included three of those
letters (02-0302 dtd. January 23, 2003; 04-0011 dtd. May 12, 2004; 07-
0174 dtd. March 17, 2008) in the docket for information and guidance.)
Additionally, laboratory studies conducted on behalf of PHMSA and FAA
concluded that a simple application of tape on a screw-type closure
prevented ``back-off'' under even extreme conditions. We also note for
the purposes of this notice that:
     Liners typically must be manually inserted into a
packaging before filling. Because most packaging systems can be
automated or are already automated with some form of secondary closure
being applied, costs and regulatory burden to shippers should be
minimal.
     Most Packing Group I liquids already require a leakproof
liner in the HMR and ICAO Technical Instructions.
     A liner or secondary means of positive closure should not
affect an existing UN standard packaging design as in most cases it
will not be considered a new design.
     Requiring a secondary positive means of closure combined
with required verification of pressure differential capability adds a
layered systems-approach to air transportation safety.
    Packaging failures in air transportation often are the result of
closures that have loosened in transportation. Such leaks are
potentially dangerous in all modes of transportation, but have the
potential for catastrophic results in air transportation. Therefore, we
are proposing to revise Sec.  173.27(d) to clearly state that all
friction and screw type closures must be secured by a secondary means
of positive closure. We believe that adoption of this requirement
provides a necessary added level of protection to prevent packages from
leaking in air transportation. For liquids assigned to Packing Groups
II or III, a leakproof liner may be used to satisfy the secondary
closure requirement where it cannot be applied or it is impracticable
to apply. For liquids of Packing Group I, we are proposing to revise
Sec.  173.27(e) to require secondary means of closure, absorbent
material, and a rigid, leakproof liner or

intermediate packaging. Also, for clarity we are proposing to remove
the reference to Division 5.2 materials from the Sec.  173.27(e)
introductory text.

B. Enhanced Pressure Differential Capability Standard

    Currently, the HMR require all packagings containing liquid
hazardous materials intended for transportation by aircraft to be
capable of withstanding, without leakage, an internal gauge pressure of
at least 75 kPa for liquids in Packing Group III of Class 3 or Division
6.1 or 95 kPa for all other liquids, or a pressure related to the vapor
pressure of the liquid to be conveyed, whichever is greater. See Sec.
173.27(c). This requirement also applies to liquids excepted from
specification packaging, such as limited quantities and consumer
commodities. Liquids contained in inner receptacles that do not meet
the minimum pressure requirements in Sec.  173.27(c) may be placed into
receptacles that do meet the pressure requirements to ensure that the
completed packaging--inner receptacles plus outer packaging--will
withstand pressures typically encountered in air transportation. Single
and composite packagings, or any packaging subject to hydrostatic
pressure testing under Sec.  178.605, must have a marked test pressure
of not less than 250 kPa for liquids in Packing Group I, 80 kPa for
liquids in Packing Group III of Class 3 or Division 6.1, and 100 kPa
for other liquids.
    As discussed in detail earlier in this preamble and in the ANPRM,
testing conducted on behalf of FAA and PHMSA indicates that many
combination packagings fail when subjected to conditions intended to
simulate the pressures encountered in the air transportation
environment. One possible conclusion is that these packagings might not
be capable of meeting the pressure differential capability standards.
Without testing there is no assurance that these packagings are capable
of meeting the prescribed standards. For air transportation, such
deficiencies in packaging integrity are unacceptable.
    In this notice, we are proposing that conformance with the pressure
differential requirements for rigid packagings may be demonstrated by
testing performed in accordance with ASTM D6653, ``Standard Test
Methods for Determining the Effects of High Altitude on Packaging
Systems by Vacuum Method'' or ASTM D4991, ``Standard Test Method for
Leakage Testing of Empty Rigid Containers by Vacuum''.
    For flexible packaging, we are proposing that conformance with the
pressure requirements may be demonstrated by pressure differential
testing performed in accordance with ASTM F 1140, ``Standard Test
Methods for Internal Pressurization Failure Resistance of Unrestrained
Packages for Medical Applications'', ASTM D 3078, ``Standard Test
Method for Determination of Leaks in Flexible Packaging by Bubble
Emission'' or a generic test method outlined in a proposed new Appendix
E to Part 173.
    Additional test methods that may be used to confirm pressure
differential capability are the hydrostatic pressure test in Sec.
178.605 and the International Safe Transit Association's ``ISTA 3A,
Packaged-Products for Parcel Delivery System Shipment 70 kg (150 lb) or
Less.'' However, the ISTA 3A test method is considered more costly and
complex due to the high cost of equipment and specialized operators
needed to conduct it.
    We have recently had the privilege of working with the German
Federal Institute for Materials Research and Testing (BAM) on the
problematic issue of calculating vapor pressures for liquids at the
transportation reference temperatures (50-55 [deg]C) as well as for
mixtures and solutions. The proposed table in Appendix E of this notice
provides guidance on determining these values based on the relationship
between boiling points and vapor pressures. It allows the shipper or
product manufacturer to estimate the required capability (test
pressure) of their packaging based on the individual constituent in a
mixture or solution with either the lowest boiling point or the highest
vapor pressure at 50 [deg]C. We invite comments on this potentially
very positive initiative.

C. Combined Enhanced Pressure Differential Capability Standard and
Incorporation of Revised ICAO Technical Instructions Packaging
Provisions

    Laboratory studies have shown that testing inner packagings or
receptacles of commercially available combination packaging designs
intended or marketed as authorized for transportation by aircraft
achieves an approximate effectiveness rating of 95 percent, with the
current compliance rate among shippers unknown. The current compliance
rate for the use of liners or secondary means of positive closure by
shippers is estimated to be at least 70 to 90 percent, with an
effectiveness rate of 95 to 100 percent. Consequently, we have decided
to propose in this notice a combination of both regulatory alternatives
to achieve our objective of a cost-effective systems approach to safety
that provides redundancy where necessary and promotes compliance by
issuing regulations that are clear and easier to understand.

D. Vibration Testing

    Section 173.27(c) of the HMR prescribes a pressure differential
capability standard for inner packagings of combination packagings
intended for air transport. In addition, in accordance with Sec.
178.608, combination packagings must be capable of passing a prescribed
vibration test. As discussed in detail elsewhere in this preamble, in
order to substantially decrease the likelihood of a hazardous materials
release in air transport, we are proposing to prescribe specific test
protocols and standards for determining whether an inner package or
receptacle is capable of meeting the pressure differential requirements
specified in the regulations. However, we are not proposing to revise
the current vibration capability standard. Testing to ascertain
conformance with a pressure differential capability standard is
significantly more cost effective than testing to ascertain conformance
with a vibration capability standard. Vibration testing generally
requires more expensive equipment and specially trained operators.
Moreover, laboratory studies have concluded that the application of a
secondary means of closure to a packaging capable of withstanding the
pressure differentials encountered in air transport substantially
reduces the overall failure rate of packages.
    It is our understanding that a number of shippers and packaging
vendors currently use random vibration tests, such as those in the ISTA
3A or ASTM D 4169 standards, in combination with pressure differential
testing for packagings intended for air transport. While the HMR
prescribe a specific vibration test protocol, it appears that the
recognized random vibration test methods, combined with pressure
differential testing, achieve the intent of the test protocols in the
HMR--that is, to ensure that the packaging will withstand environmental
conditions normally encountered in air transportation. In our opinion,
the use of sequential or combined pressure differential and vibration
testing in accordance with ISTA, ASTM, or other test protocols would
exceed the current capability standards for pressure differential and
vibration for packages intended for air transportation. We would
consider that inner containers demonstrating conformance to these
standards would not be required to

undergo further testing for pressure or vibration capability standards
when placed in an outer packaging for packages intended for air
transportation. As discussed in greater detail in Section III of this
notice, for certain types of packagings, the HMR provide for separate
testing of packaging components so that if one component conforms to
the applicable performance standard, the secondary components need not
meet those standards.

V. Rulemaking Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under authority of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary
of Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is a significant regulatory action under section
3(f) Executive Order 12866 and, therefore, was reviewed by the Office
of Management and Budget (OMB). The proposed rule is a significant rule
under the Regulatory Policies and Procedures order issued by the U.S.
Department of Transportation (44 FR 11034). We have completed a
regulatory evaluation and placed it in the docket for this rulemaking.
    In this rulemaking, we considered three regulatory alternatives:
(1) Require a secondary means of closure on inner packagings or a liner
in all combination packaging designs containing liquids; (2) require
testing to determine whether an inner packaging intended to contain
liquids is capable of withstanding the reduced pressures of air
transport; or (3) require a combination of both regulatory
alternatives. We are proposing the combination alternative, number 3.
Costs for the combination alternative range from $2.2M to $5.7M while
net benefits range from $41.6M to $67.9M. at a 7% discount rate over a
10-year period. Benefit-cost ratios for the combination alternative
range from 7.3:1 to 31.5:1. We invite commenters to address the
potential costs of the enhanced packaging requirements in this notice,
including the number of inner and outer packaging designs that would be
affected.

C. Executive Order 13132

    This notice has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
notice preempts State, local and Indian tribe requirements but does not
propose any regulation with substantial direct effects on the States,
the relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b))
preempting State, local and Indian tribe requirements on the following
subjects:
    (1) The designation, description, and classification of hazardous
materials;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
    This notice addresses covered subject item (5) described above and
preempts State, local, and Indian tribe requirements not meeting the
``substantively the same'' standard.
    Federal hazardous materials transportation law provides at 49
U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of
the covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the notice and not later than two years after the date of issuance. The
effective date of Federal preemption of this notice will be 90 days
from publication in the Federal Register.

D. Executive Order 13175

    This notice has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this proposed
rule does not have tribal implications and does not impose direct
compliance costs, the funding and consultation requirements of
Executive Order 13175 do not apply.

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

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze proposed regulations and assess their impact on small
businesses and other small entities to determine whether the proposed
rule is expected to have a significant impact on a substantial number
of small entities. A regulatory evaluation for this NPRM, which
includes a detailed small business impact analysis, is in the public
docket for this rulemaking. Based on the analysis in the public docket,
I certify that while this notice will impact a significant number of
small entities, it will not have a significant economic impact on a
substantial number of small entities.
    This notice has been developed in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure potential impacts of draft rules
on small entities are properly considered.

F. Unfunded Mandates Reform Act of 1995

    This notice does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It will not result in costs of $141.3
million or more, in the aggregate, to any of the following: State,
local, or Native American tribal governments, or the private sector.

G. Paperwork Reduction Act

    PHMSA currently has an approved information collection under Office
of Management and Budget (OMB) Control Number 2137-0572, ``Testing
Requirements for Non-Bulk Packaging,'' with an expiration date of March
31, 2010. This NPRM may result in an increase in the annual burden and
costs of this information collection due to proposed changes to require
packaging manufacturers to conduct testing to confirm that a
combination packaging intended for the air transportation of liquid
hazardous materials is capable of withstanding the pressures
encountered on board aircraft and to maintain a documented record of
the test results.
    Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection

unless it has been approved by OMB and displays a valid OMB control
number. Section 1320.8(d), title 5, Code of Federal Regulations
requires that PHMSA provide interested members of the public and
affected agencies an opportunity to comment on information and
recordkeeping requests.
    This notice identifies a revised information collection request
that PHMSA will submit to OMB for approval based on the requirements in
this proposed rule. PHMSA has developed burden estimates to reflect
changes in this proposed rule, and estimates the information collection
and recordkeeping burden as proposed in this rule to be as follows:
    OMB Control No.: 2137-0572.
    Annual Number of Respondents: 1,496.
    Annual Number of Responses: 29,712.
    Annual Burden Hours: 54,525.
    Annual Burden Costs: $1,557,779.25.
    PHMSA specifically requests comments on the information collection
and recordkeeping burdens associated with developing, implementing, and
maintaining these requirements for approval under this proposed rule.
    Requests for a copy of this information collection should be
directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous
Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001,
Telephone<PHONE_NUMBER>.
    Address written comments to the Dockets Unit as identified in the
ADDRESSES section of this rulemaking. We must receive comments
regarding information collection burdens prior to the close of the
comment period identified in the DATES section of this rulemaking. In
addition, you may submit comments specifically related to the
information collection burden to the PHMSA Desk Officer, Office of
Management and Budget, at fax number<PHONE_NUMBER>. If these proposed
requirements are adopted in a final rule, PHMSA will submit the revised
information collection and recordkeeping requirements to OMB for
approval.

H. Environmental Assessment

    The National Environmental Policy Act (NEPA), Sec. Sec.  4321-4375,
requires Federal Agencies to analyze regulatory actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order Federal Agencies to conduct an environmental review considering
(1) the need for the action, (2) alternatives to the action, (3)
environmental impacts of the action and alternatives, and (4) the
agencies and persons consulted during the consideration process. 40 CFR
1508.9(b).
    Purpose and Need. As discussed elsewhere in this preamble, PHMSA
proposes to amend requirements in the Hazardous Materials Regulations
to enhance the integrity of inner packagings or receptacles of
combination packagings containing liquid hazardous material by ensuring
they remain intact when subjected to the reduced pressure and other
forces encountered in air transportation. In order to substantially
decrease the likelihood of an unintentional hazardous materials release
to the environment, the proposed amendments in this notice prescribe
specific test protocols and standards for determining whether an inner
packaging or receptacle is capable of meeting the pressure differential
requirements specified in the regulations and aligns the HMR with
international air transportation standards.
    Alternatives. PHMSA considered four possible alternatives to
strengthen packaging requirements for air shipments of liquid hazardous
materials:
    Alternative 1: Do nothing. Under this alternative, the current
regulatory scheme applicable to air shipment of hazardous liquids would
continue in place. We rejected this alternative because newly
identified safety risks would not be addressed.
    Alternative 2: Require that friction and screw type closures of
inner packagings intended to contain liquids as part of a combination
packaging to be secured by a secondary means of closure. Under this
alternative, we would adopt the packaging amendments included in the
2011-2012 edition of the ICAO Technical Instructions. Specifically, we
would require friction and screw type closures of inner packagings
intended to contain liquids as part of a combination packaging to be
secured by a secondary means of closure. For liquids assigned to
Packing Groups II or III, a leakproof liner could be used to satisfy
the secondary closure requirement where it could not be applied or
would be impracticable to apply. For liquids of Packing Group I, a
secondary means of closure, absorbent material and a leakproof liner
would be required. We rejected Alternative 2. While it would address
many of the safety issues associated with the transportation of liquid
hazardous materials, Alternative 2 alone does not represent a
comprehensive systems-oriented regulatory solution and would not
address problems associated with the current pressure differential
capability standard.
    Alternative 3: Require enhanced pressure differential capability
requirements on all inner packagings intended to contain liquids as
part of a combination packaging. Currently, the HMR require that all
packages transported by air and for which retention of liquids is a
basic function must be capable of withstanding, without leakage, a
certain pressure differential, which is usually 95 kilopascals (kPa)
(Sec.  173.27[c]). This integrity standard applies to both
specification and non-specification packaging. Under this alternative,
we would require packaging manufacturers to conduct testing to confirm
that a combination packaging intended for the air transportation of
liquid hazardous materials is capable of withstanding the pressures
encountered on board aircraft and to maintain a documented record of
the test results. We rejected this alternative. While it would address
many of the safety issues associated with the transportation of liquid
hazardous materials, Alternative 3 alone does not represent a
comprehensive systems-oriented regulatory solution. Moreover, it does
not address critical international harmonization issues.
    Alternative 4: Adopt the provisions in both Alternatives 2 and 3.
Under this alternative, PHMSA would adopt the new and revised
regulatory provisions summarized in the discussion of Alternatives 2
and 3 above. This is the selected alternative. The proposed testing
requirements will enhance safety by ensuring that all liquid hazardous
materials shipments are contained in packages capable of withstanding
normal conditions encountered in air transport and packaged to reduce
the possibility of damage that could lead to an incident. It also
harmonizes domestic packaging requirements with international
standards, thereby reducing confusion, promoting safety, and
facilitating efficient transportation.
    Analysis of Environmental Impacts. Hazardous materials are
substances that may pose a threat to public safety or the environment
during transportation because of their physical, chemical, or nuclear
properties. The hazardous material regulatory system is a risk
management system that is prevention-oriented and focused on
identifying a safety hazard and reducing the probability and quantity
of a hazardous material release. Releases of hazardous materials can
result in explosions or fires, while radioactive, toxic, infectious, or
corrosive hazardous

materials can have short- or long-term exposure effects on humans or
the environment.
    The potential for environmental damage or contamination exists when
packages of hazardous materials are involved in accidents or en route
incidents resulting from cargo shifts, valve failures, package
failures, loading, unloading, collisions, or handling problems. The
release of hazardous materials can cause the loss of ecological
resources and the contamination of air, aquatic environments, and soil.
Contamination of soil can lead to the contamination of ground water.
For the most part, the adverse environmental impacts associated with
releases of most hazardous materials are short-term impacts that can be
reduced or eliminated through prompt clean-up/decontamination of the
accident scene.
    We have reviewed the risks associated with transporting combination
packages containing liquid hazardous materials by aircraft and by
surface transportation to and from aircraft. The amount of liquid
hazardous material contained in air-eligible combination packages to
which this notice of proposed rulemaking applies is minimal and ranges
anywhere from 0.5L to 220L. However, hazardous materials that pose the
highest risk to humans and the environment are packaged in much smaller
quantities when transported by aircraft thereby minimizing any
consequences to both should a package fail and release its contents.
For these reasons, we conclude there will be little or no impact to the
environment if the provisions proposed in this NPRM are adopted.
    Consultation and Public Comment. We invite commenters to address
potential environmental impacts associated with the proposals in this
NPRM.

I. Privacy Act

    Anyone is able to search the electronic form for all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
``http://dms.dot.gov''.

J. Regulation Identifier Number (RIN)

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

List of Subjects

49 CFR Part 171

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

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
    In consideration of the foregoing, 49 CFR chapter I is proposed to
be amended as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

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

    2. In Sec.  171.7, in paragraph (b) table, the following changes
are made:
    a. Under the source ``American Society for Testing and Materials,''
the organization's telephone number and website address are added and
the material entries ``ASTM D 3078, Standard Test Method for
Determination of Leaks in Flexible Packaging by Bubble Emission,''
``ASTM D 4991, Standard Test Method for Leakage Testing of Empty Rigid
Containers by Vacuum,'' ``ASTM D 6653, Standard Test Methods for
Determining the Effects of High Altitude on Packaging Systems by Vacuum
Method'' and ``ASTM F 1140, Standard Test Methods for Internal
Pressurization Failure Resistance of Unrestrained Packages for Medical
Applications'' are added in appropriate numerical order;
    b. The new source entry ``International Safe Transit Association,
1400 Abbott Road, Suite 160, East Lansing, MI 48823-1900. (517) 333-
3437. http://www.ista.org.'' is added and, the material entry ``ISTA
3A, Packaged-Products for Parcel Delivery System Shipment 70 kg (150
lb) or Less'' is added to the ``Source and name of material'' column
and the reference entry ``Part 173, appendix E'' is added to the
corresponding ``49 CFR reference'' column.

    The additions read as follows:

Sec.  171.7  Reference material.

* * * * *
    (b) List of informational materials not requiring incorporation by
reference. * * *

------------------------------------------------------------------------
    Source and name of material                49 CFR reference
------------------------------------------------------------------------

                              * * * * * * *
American Society for Testing and
 Materials, 100 Bar Harbor Drive,
 West Conshohocken, PA 19428.
 Noncurrent ASTM Standards are
 available from: Engineering
 Societies Library, 354 East 47th
 Street, New York, NY 10017.
 Telephone:<PHONE_NUMBER>. Web
 site: http://www.astm.org.
ASTM D 3078 ``Standard Test Method   Part 173, appendix E.
 for Determination of Leaks in
 Flexible Packaging by Bubble
 Emission''.
ASTM D 4991 Standard Test Method     Part 173, appendix E.
 for Leakage Testing of Empty Rigid
 Containers by Vacuum.
ASTM D 6653 Standard Test Methods    Part 173, appendix E.
 for Determining the Effects of
 High Altitude on Packaging Systems
 by Vacuum Method.

                              * * * * * * *
ASTM F 1140 Standard Test Methods    Part 173, appendix E.
 for Internal Pressurization
 Failure Resistance of Unrestrained
 Packages for Medical Applications.

                              * * * * * * *
International Safe Transit
 Association, 1400 Abbott Road
 Suite 160, East Lansing, MI 48823-
 1900. Telephone:<PHONE_NUMBER>.
 Web site: http://www.ista.org.

ISTA 3A, Packaged-Products for       Part 173, appendix E.
 Parcel Delivery System Shipment 70
 kg (150 lb) or Less.

                              * * * * * * *
------------------------------------------------------------------------

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

    3. The authority citation for part 173 continues to read as
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    4. In Sec.  173.27, paragraphs (a), (c)(2), (d) and (e) are revised
to read as follows:

Sec.  173.27  General requirements for transportation by aircraft.

    (a) The requirements of this section are in addition to
requirements prescribed elsewhere under this part and apply to packages
offered or intended for transportation aboard aircraft.
* * * * *
    (c) * * *
    (2) Any packaging design not already subject to Sec.  178.605, for
which the retention of liquid is a basic function (e.g., the inner
packagings of a combination packaging), must be capable of withstanding
without leakage the greater of--
    (i) An internal pressure that produces a gauge pressure of not less
75 kPa (11 psig) for liquids in Packing Group III of Class 3 or
Division 6.1; or 95 kPa (14 psig) for other liquids in accordance with
an appropriate test method that produces the required pressure
differential between the inside and outside of an applicable packaging;
or
    (ii) A pressure related to the vapor pressure of the liquid to be
conveyed, determined by one of the following:
    (A) The total gauge pressure measured in the receptacle (i.e., the
vapor pressure of the material and the partial pressure of air or other
inert gases, less 100 kPa (15 psia)) at 55 [deg]C (131 [deg]F),
multiplied by a safety factor of 1.5; determined on the basis of a
filling temperature of 15 [deg]C (59 [deg]F) and a degree of filling
such that the receptacle is not completely full at a temperature of 55
[deg]C (131 [deg]F) or less;
    (B) 1.75 times the vapor pressure at 50 [deg]C (122 [deg]F) less
100 kPa (15 psia); or
    (C) 1.5 times the vapor pressure at 55 [deg]C (131 [deg]F) less 100
kPa (15 psia).
    (iii) The capability of a packaging to withstand an internal
pressure without leakage that produces the specified pressure
differential must be determined by successfully testing design samples
or prototypes. The appropriate test method and test duration selected
must be based on packaging type (e.g., material of construction) in
accordance with paragraph (a) of Appendix E to this part. Examples of
acceptable test methods to determine pressure differential capability
are identified in Appendix E to this part. For a liquid hazardous
material where the vapor pressure is unknown, the initial boiling point
may be used to determine minimum packaging requirements as specified in
the Appendix E Table of this part. For one or more liquid hazardous
materials contained in a mixture or solution, the individual
constituent with the highest vapor pressure at 50 [deg]C or the lowest
initial boiling point (at sea level) may be used to determine minimum
packaging requirements for the entire mixture or solution as specified
in this section.
    (iv) Testing must be verifiable and appropriately documented.
Supporting documentation must be made available for inspection by a
representative of the Department upon request and for at least 90 days
once the package is offered for transportation.
* * * * *
    (d) Closures. The body and closure of any packaging must be
constructed so as to be able to adequately resist the effects of
temperature and vibration occurring in conditions normally incident to
air transportation. Inner packaging or receptacle closures must be held
securely, tightly and effectively in place by secondary means. Examples
of such methods include: Adhesive tape, friction sleeves, welding or
soldering, positive locking wires, locking rings, induction heat seals,
and child-resistant closures. The closure device must be so designed
that it is unlikely that it can be incorrectly or incompletely closed.
For other than liquids of Packing Group I, when a secondary means of
closure cannot be applied or is impracticable to apply to an inner
packaging containing liquids, this requirement may be satisfied by
securely closing the inner packaging and placing it in a leakproof
liner before placing the inner packaging in its outer packaging. A
liquid of Packing Group I with a secondary means of closure applied
must be packaged and closed in accordance with paragraph (e)(1) of this
section.
    (e) Absorbent materials. Except as otherwise provided in this
subchapter, liquid hazardous materials of Classes 3, 4, or 8, or
Divisions 5.1 or 6.1 that are packaged and offered for transport in
glass, earthenware, plastic, or metal inner packagings must be packaged
using absorbent material as follows:
    (1) Packing Group I liquids on passenger-carrying and cargo-
carrying aircraft must be contained in an inner packaging with a
secondary means of closure applied that is further packaged in a rigid
leakproof liner or rigid intermediate packaging containing sufficient
absorbent material to absorb the entire contents of the inner packaging
before being placed in its outer package.
    (2) Absorbent material must not react dangerously with the liquid
(see Sec. Sec.  173.24 and 173.24a.).
* * * * *
    5. In part 173, appendix E is added to read as follows:

Appendix E to Part 173--Test Procedures for Packagings Intended to Meet
Pressure Differential Requirements for Air Transport

    (a) Test method. Testing for pressure differential capability
may be conducted using internal hydraulic or pneumatic pressure
(gauge) or external vacuum methods. External vacuum tests are not
acceptable if the specified pressure differential is not achieved or
maintained. The external vacuum test is also not normally suitable
for: Flexible packagings; packagings filled and closed under an
absolute atmospheric pressure lower than 95 kPa or an altitude
greater than 1,500 feet; and packagings intended for the transport
of high vapor pressure liquids (i.e., vapor pressures greater than
111 kPa @ 50 [deg]C or 130 kPa @ 55 [deg]C). Metal packagings and
composite packagings other than plastic (e.g., glass, porcelain, or
stoneware), including their closures, must be subjected to the test
pressure for at least 5 minutes. Plastic packagings, including their
closures, must be subjected to the test pressure for at least 30
minutes. The minimum test pressure is one that produces an internal
pressure (gauge) of not less 75 kPa (11 psig) for liquids in Packing
Group III of Class 3 or Division 6.1; or 95 kPa (14 psig) for other
liquids in accordance with an appropriate test method that produces
the required pressure differential between the inside and outside of
an applicable packaging. The following

standards are examples of acceptable methods that may be used to
determine pressure differential capabilities of a packaging design:
    (i) For non-flexible (i.e., ``rigid'') inner packagings:
    (A) ASTM D 4991, ``Standard Test Method for Leakage Testing of
Empty Rigid Containers by Vacuum.''
    (B) ASTM D 6653, ``Standard Test Methods for Determining the
Effects of High Altitude on Packaging Systems by Vacuum Method.''
    (C) International Safe Transit Association, ``ISTA 3A, Packaged-
Products for Parcel Delivery System Shipment 70 kg (150 lb) or
Less.''
    (ii) For flexible inner packagings:
    (A) ASTM D 3078, ``Standard Test Method for Determination of
Leaks in Flexible Packaging by Bubble Emission.''
    (B) ASTM F 1140, ``Standard Test Methods for Internal
Pressurization Failure Resistance of Unrestrained Packages for
Medical Applications.''
    (iii) The hydrostatic pressure test under Sec.  178.605 of this
subchapter.
    (iv) Generic flexible test method. This test procedure is used
to evaluate a flexible bag or pouch to determine pressure
differential capabilities. The test specimens and the number of
samples must be chosen at random, to permit an adequate
determination of representative performance. When conducting the
pressure differential test to meet the requirements for air
transport, a minimum of three (3) representative specimens of each
flexible inner packaging must be tested. Testing must be conducted
on the flexible packaging (primary receptacle or secondary
packaging) to establish pressure differential capabilities. Test
specimens must be prepared and tested at ambient laboratory
conditions.
    (A) To begin the procedure, lay flexible container on flat
surface and, at one of the bottom corners, cut an access hole
approximately \1/4\'' long across the corner. Insert a 4'' x \1/
4\;'' plastic guide tube into the cut corner of the bag. Leave a
minimum of 2'' of tubing extending from the corner of the bag. This
tube is used as a guide to insert the copper tube. Seal the bag
according to the manufacturer's instructions while maintaining the
2'' extension on the outside of the bag. Position the bag to guide
the copper tube into the bag where the plastic tube is extending out
of the flexible bag. To seal the cut end of the bag, use sponge
rubber to protect the bag from the clamps. Clamp the flat area of
the copper tube with quick clamps. Place the bag on a flat surface
and rest for 30 minutes.
    (B) After 30 minutes, slowly pressurize the sample to 2-3 psi.
Hold for one minute. Continue to increase the pressure until a
pressure of 95 kPa (14 psig) is reached. Once the desired pressure
is reached, conduct the test and monitor for 30 minutes. Upon
completion of the test, submerge the bag in water, or other
appropriate means, to check for leakage. Disconnect the pressure
hoses from each of the fittings and inspect each specimen carefully
and note any leakage that may have occurred or damage to the
specimen. Document results of test on test report for packaging
design.
    (b) Table. For a liquid where the boiling point, initial boiling
point or vapor pressure is known, the following table prescribes the
corresponding minimum test pressure for packagings subject to
pressure differential requirements in Sec.  173.27(c). For a mixture
or solution, the individual constituent with the highest vapor
pressure at 50 [deg]C or the individual constituent with the lowest
initial boiling point may be used to determine the minimum test
pressure its packaging must be capable of withstanding for the
mixture or solution as a whole.

(Initial) Boiling Point in [deg]C..      >= 48      >= 45      >= 40      >= 35      >= 30      >= 25      >= 20
                                        [deg]C     [deg]C     [deg]C     [deg]C     [deg]C     [deg]C     [deg]C
Vapor Pressure @ 50 [deg]C in kPa..     <= 111     <= 125     <= 150     <= 175     <= 205     <= 240     <= 300
                                        [deg]C     [deg]C     [deg]C     [deg]C     [deg]C     [deg]C     [deg]C
Required Minimum Test Pressure in       95 kPa    120 kPa    165 kPa    210 kPa    260 kPa    320 kPa    425 kPa
 kPa...............................        \1\

Note 1: 75 kPa (minimum) for liquids in Packing Group III of Class 3 or Division 6.1.

    Issued in Washington, DC, on May 7, 2010 under authority
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2010-11384 Filed 5-13-10; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register: November 13, 2008 (Volume 73, Number 220)]
[Notices]
[Page 67241-67243]
[DOCID:fr13no08-89]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58900; File No. SR-NYSE-2008-105]

Self-Regulatory Organizations; Notice of Filing and Immediate
Effectiveness of Proposed Rule Change by New York Stock Exchange LLC To
Shorten the Time Period for Listed Companies To Issue a Press Release
After Receipt of Notification That the Company Is Noncompliant With the
Exchange's Price Test

November 5, 2008.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act''),\2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on October 28, 2008, New York Stock Exchange, LLC (the
``NYSE'' or the ``Exchange'') filed with the Securities and Exchange
Commission (``Commission'' or ``SEC'') the proposed rule change as
described in Items I and II below, which items have been prepared by
the Exchange. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Section 802.01C of the Exchange's
Listed Company Manual (the ``Manual'') to provide that the Exchange
will require a U.S. company, upon receiving written notification that
it has fallen below the Exchange's $1.00 stock price requirement over a
30 trading-day average, to issue a press release within the same amount
of time as allotted by the SEC for the company to disclose such an
occurrence, but in any event no later than four business days after
receipt of notification from the Exchange, and will require a non-U.S.
company to issue a press release within 30 days of receiving written
notification from the Exchange that it has fallen below the Exchange's
$1.00 stock price requirement. The text of the proposed rule change is
available on the Exchange's Web site (http://www.nyse.com), at the
Exchange's Office of the Secretary, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The NYSE has prepared summaries,
set forth in Sections A, B and C below, of the most significant aspects
of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Section 802.01C of the Manual to
provide that the Exchange will require a U.S. company, upon receiving
written notification that it has fallen below the Exchange's $1.00
stock price requirement over a 30 trading-day average, to issue a press
release within the same amount of time as allotted by the SEC for the
company to disclose such an occurrence, but in any event no later than
four business days after receipt of notice from the company. The
Exchange will require a non-U.S. company to issue a press release
within 30 days of receiving written notification from the Exchange that
it has fallen below the Exchange's $1.00 stock price requirement. By
doing so, the Exchange is conforming its requirements under Section
802.01C to the press release requirements in relation to other
notifications of events of noncompliance as set forth in Section 802.02
(for domestic companies) and Section 802.03 (for foreign private
issuers).\4\
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    \4\ See Exchange Act Release No. 58487 (September 8, 2008), 73
FR 53303 (September 15, 2008) (SR-NYSE-2008-59). Nothing in this
proposal affects a company's obligations to disclose material news
in a timely fashion. See Section 202.05 of the Manual. There are
currently no companies that have received notifications from the
Exchange regarding non-compliance with the Exchange's stock price
continued listing requirements and that have not already issued the
required press release. As such, the revised time periods this
filing establishes for companies that are non-compliant under
Sections 802.01C (including foreign companies) will apply only to
those companies that receive a notice of non-compliance subsequent
to the submission of this filing.

---------------------------------------------------------------------------

    Currently, Section 802.01C of the Manual requires a U.S. company to
issue a press release within 45 days of receiving written notification
from the Exchange that it has fallen below the Exchange's stock price
requirement. Section 802.01C also provides that, if the company fails
to issue a press release by the deadline specified by the rule, the
Exchange will itself issue the requisite press release. However, SEC
rules require the company to file a Form 8-K giving notice of that
event within four business days of being notified by the Exchange.\5\
The Exchange believes that its own requirement is too long in light of
the much earlier public notice required by the Form 8-K rule and that
it is appropriate for the Exchange to issue a press release on the
subject itself if the company has not acted within the period provided
by Form 8-K and in any event no later than four business days after
receipt of notification from the Exchange. The Exchange notes that
companies that are incorporated in jurisdictions outside the United
States but that do not qualify as foreign private issuers are treated
as domestic companies for purposes of Section 802.01C.
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    \5\ Item 3.01 of Form 8-K requires a registrant to file a Form
8-K within four business days of receipt of notice from the national
securities exchange that maintains the principal listing for any
class of the registrant's common equity that the registrant or such
class of the registrant's securities does not satisfy a rule or
standard for continued listing on the exchange.
---------------------------------------------------------------------------

    Currently, Section 802.01C of the Manual requires a non-U.S.
company to issue a press release within 90 days of receiving written
notification from the Exchange that it has fallen below the Exchange's
stock price requirement. Section 802.01C also provides that, if the
company fails to issue a press release by the deadline specified by the
rule, the Exchange will itself issue the requisite press release. While
foreign private issuers are not subject to the Form 8-K requirement
imposed on domestic issuers, the Exchange believes that 90 days is an
excessive period to give companies to make such a material disclosure.
Based on our experience with these companies, 30 days would be more
than sufficient. As such, the Exchange proposes to shorten from 90 to
30 days the period within which foreign private issuers must issue a
press release with regard to a notification by the Exchange of
noncompliance. If the issuer does not issue a press release within that
30 day period, the Exchange will do so.
    While Section 802.01C establishes maximum time periods for the
issuance of press releases, the Exchange believes that companies should
issue their press releases concerning any notice of noncompliance they
receive from the Exchange as soon as possible after receipt of such
notification and should not wait until close to the end of the
permitted period before doing so.
2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (the ``Act'')
\6\ for this proposed rule change is the requirement under Section
6(b)(5) \7\ that an Exchange have rules that are designed to promote
just and equitable principles of trade, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system and, in general, to protect investors and the public interest.
In particular, the Exchange believes that the proposed amendment
protects investors and the public interest by ensuring the prompt
disclosure of material information with respect to listed companies.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78a et seq.
    \7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purpose of the Exchange Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange has neither solicited nor received written comments on
the proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the proposed rule change: (i) Does not significantly affect
the protection of investors or the public interest; (ii) does not
impose any significant burden on competition; and (iii) does not become
operative for 30 days after the date of the filing, or such shorter
time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \8\ and
Rule 19b-4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6). Pursuant to Rule 19b-4(f)(6)(iii)
under the Act, the Exchange is required to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \10\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has requested that the Commission waive the 30-day operative delay.
---------------------------------------------------------------------------

    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because it will allow the Exchange to immediately conform the press
release timing requirements for companies that are noncompliant with
the Exchange's $1.00 stock price test in Section 802.01C of the Manual
with the press release timing requirements in Sections 802.02 and
802.03 of the Manual that apply to companies that are noncompliant with
the Exchange's other continued listing standards.\12\ Because the
Commission recently approved these similar timing requirements in
Sections 802.02 and 802.03 of the Manual,\13\ the Commission believes
that the proposed rule change raises no new regulatory issues. The
Commission also notes that the prior changes to these other sections of
the Manual were subject to full notice and comment, and the Commission
received one comment in support of that proposal. Further, the
Commission notes that the proposed rule change will provide investors
with earlier press release notification that a company has fallen out
of compliance with the Exchange's stock price requirement and also
avoids any confusion for domestic companies by conforming the time
periods in the NYSE rules with current Commission requirements for the
filing of the Form 8-K. For these reasons, the Commission designates
that the proposed rule change become operative immediately upon
filing.\14\
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    \12\ See continued listing standards in Section 802.01 of the
Manual.
    \13\ See supra note 4.
    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the rule change if it
appears to the Commission that such action is

necessary or appropriate in the public interest, for the protection of
investors, or otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2008-105 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2008-105. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, on official business
days between the hours of 10 a.m. and 3 p.m. Copies of the filing also
will be available for inspection and copying at the principal office of
the Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSE-2008-105 and should be submitted on or before December 4, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-26894 Filed 11-12-08; 8:45 am]

BILLING CODE 8011-01-P