[Federal Register: July 7, 2008 (Volume 73, Number 130)]
[Proposed Rules]
[Page 38361-38372]
[DOCID:fr07jy08-19]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 173, and 178

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

Hazardous Materials; Combination Packages Containing Liquids
Intended for Transport by Aircraft

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: PHMSA and the Federal Aviation Administration (FAA) are
considering changes to requirements in the Hazardous Materials
Regulations applicable to non-bulk packagings used to transport
hazardous materials in air transportation. To enhance aviation safety,
the two agencies are seeking to identify cost-effective solutions that
can be implemented to reduce incident rates and potentially detrimental
consequences without placing unnecessary burdens on the regulated
community. We are soliciting 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 Hazardous Materials
Regulations (HMR); and (3) authorize alternatives for enhancing package
integrity. We are also considering ways to simplify current
requirements. Commenters are also invited to present additional ideas
for improving the safe transportation of hazardous materials by
aircraft.

DATES: Comments must be received by September 5, 2008.

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>.

SUPPLEMENTARY INFORMATION:

Contents

I. Background
II. Closures and Packages May Fail at High Altitude
III. Analyses of the Problem
    A. FAA Study
    B. United Parcel Service (UPS) Study
    C. Michigan State University (MSU) Study for the Federal
Aviation Administration (FAA/MSU Study)
    D. MSU Study for PHMSA (PHMSA/MSU Study)
    E. PHMSA Review of Incident Data
IV. Purpose of This ANPRM
    A. Design Qualification and Periodic Retesting
    (1) Pressure Differential Test
    (2) Vibration Testing
    (3) Combination (Simultaneous) Pressure Differential/Vibration
Testing
    (4) Elimination of Selective Testing Variations
    B. Other Requirements
    (1) Liners and Absorbent Material
    (2) Secondary Means of Closure
V. Questions and Solicitation for Public Comment
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Executive Order 13132
    C. Executive Order 13175
    D. Regulatory Flexibility Act, Executive Order 13272, and DOT
Regulatory Policies and Procedures
    E. Information Collection
VI. Regulatory Notices
    A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    B. Regulation Identifier Number (RIN)

I. Background

    The Hazardous Materials Regulations (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 hazardous
materials by aircraft. A combination packaging consists of one or more
inner packagings secured in a non-bulk outer packaging. (A non-bulk
outer packaging is one that has a maximum capacity of 450 liters (119
gallons) as a receptacle for a liquid or a maximum net mass of 400 kg
(882 pounds) or less and a maximum capacity of 450 liters (119 gallons)
or less as a receptacle for a solid; see 49 CFR 171.8.) Combination
packagings are used for the transportation of both solid and liquid
hazardous materials, including materials such as sodium hydroxide,
paint, and sulfuric acid and articles such as lithium batteries.
    When used to transport liquid hazardous materials, a combination
packaging must conform to one of the specifications (i.e.,
``Specification Packaging'') in part 178 of the HMR or an authorized UN
Standard; the packaging must be tested to ensure that it conforms to
the applicable specification or standard. Inner packagings within a
combination packaging must be closed in preparation for testing, and
tests must be carried out on the completed package in the same manner
as if prepared for transportation. See 49 CFR 178.602.
    Under the HMR, certain classes and quantities of hazardous
materials may be transported in non-specification combination
packagings. A non-specification packaging is not required to meet
specific performance requirements. Rather, a non-specification
packaging must meet general packaging requirements. For example, a non-
specification packaging must be designed, constructed, filled, and
closed so that it will not release its contents under conditions
normally incident to transportation. In addition, the effectiveness of
the packaging must be maintained for temperature changes, changes in
humidity and pressure, and shocks, loadings, and vibrations normally
encountered during transportation. See 49 CFR 173.24. In addition, a
non-specification packaging authorized for transportation by aircraft
must be designed and constructed to prevent leakage that may be caused
by changes in altitude and temperature. See 49 CFR 173.27. Non-
specification packagings need not be tested to demonstrate that they
conform to applicable HMR requirements.
    Incident data and testing indicate that a number of combination
packaging designs authorized for the transportation of liquid hazardous
materials are not able to withstand conditions normally incident to air
transportation. The packagings of most concern to PHMSA and FAA are
non-specification combination 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.
    We are aware that there are a number of contributing factors that
may cause packaging failures and releases in air transport, including
non-compliance with existing requirements and lack of function specific
training of hazmat employees. In this ANPRM, we are soliciting comments
on cost-effective measures that can be taken to reduce or eliminate the
number of liquid hazardous materials releases from combination
packagings in air transport. As discussed in more detail below, PHMSA
and FAA developed this ANPRM, in part, utilizing data and information
provided by stakeholders in a meeting on June 21, 2007. PHMSA's review
of incident data is discussed in section III.E. of this notice. A
summary of the meeting, including presentations by participants, is
available for review in the public docket for this rulemaking.
    In 1990, PHMSA's predecessor agency, the Research and Special
Programs Administration (RSPA), published a final rule under Docket HM-
181 (55 FR 52402; December 21, 1990), revisions and response to
petitions for reconsideration (56 FR 66124; December 20, 1991) to align
the HMR with international standards applicable to hazardous materials
packagings. See 49 CFR part 178, subparts L and M, adopted at 55 FR
52716-28. That final rule adopted non-bulk hazardous material packaging
standards based on performance criteria rather than the detailed
construction specifications that applied prior to 1990 and were phased
out in 1996. See former 49 CFR 171.14(b)(1), adopted at 55 FR 52473-74.
Under these performance-oriented packaging requirements, packaging
strength and integrity are demonstrated through a series of performance
tests that a packaging must pass before it is authorized for the
transportation of hazardous materials. The performance criteria provide
packaging design flexibility that is not possible with detailed design
specifications.
    In the HM-181 rulemaking, we adopted requirements that all non-bulk
packaging ``must be capable of withstanding * * * the vibration test
procedure'' set forth in 49 CFR 178.608 (55 FR at 52727) and that metal
and plastic and composite packagings ``intended to contain liquids''
must pass a hydrostatic pressure test. 49 CFR 178.605 (55 FR at 52726).
However, we did not adopt our proposal in the notice of proposed
rulemaking to require a hydrostatic pressure test to be performed on
all inner packagings of combination packages containing

liquids intended for transportation by aircraft, which would have
addressed pressure differentials potentially encountered during air
transportation. (See 52 FR 16482, May 5, 1987). Instead, consistent
with the International Civil Aviation Organization Technical
Instructions for the Safe Transport of Dangerous Goods by Air (ICAO
Technical Instructions), we adopted a requirement that all packagings
intended to contain liquids ``must be capable of withstanding without
leakage'' a specified internal pressure depending on the hazard class/
division and packing group. 49 CFR 173.27(c)(2)(i), adopted at 55 FR
52612.
    The ICAO Technical Instructions include guidance that indicates in
more precise terms what is meant by ``being capable,'' but specific
test methods have not been adopted. The ICAO Technical Instructions
suggest that the capability of packaging to meet the pressure
differential performance standard should be determined by testing, with
the appropriate test method selected based on packaging type. See
``Note'' following <IP_ADDRESS>.
    The HMR, at 49 CFR 173.27(c), specify that 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 which produces a gauge pressure of not less than 75
kPa for liquids in Packing Group III of Class 3 or Division 6.1 or 95
kPa for other liquids; or (2) a pressure related to the vapor pressure
of the liquid to be conveyed as determined by formulae in subsequent
paragraphs.

II. Closures and Packages May Fail at High Altitude

    When packages reach high altitudes during transport, they
experience low pressure on the exterior of the package. 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 will create lower external pressures and,
therefore, larger pressure differentials. This condition is especially
problematic for packages containing liquids.
    When a packaging, such as a glass bottle or receptacle, is
initially filled and sealed, the cap must be tightened to a certain
level 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 throughout transportation.
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 may not be the same as when the packaging was initially
closed. Under normal conditions encountered in air transport (26 kPa @
8000 ft), conditions are not overly severe. However, if the compartment
is depressurized at altitude or if the compartment is not pressurized
at all (e.g., feeder aircraft), the pressure differential (55 kPa-90
kPa) may be severe enough to cause package failure and release of
contents.
    When first closed, and if closed properly, the typical cap and
bottle do not deform to the point where sealing integrity is
immediately compromised, although studies have demonstrated that
plastic bottles and caps do begin to exhibit stress relaxation and a
reduction in sealing force immediately after the bottles are sealed.
When the bottle is closed in a manner that accounts for the initial
stress relaxation of the cap and threads, and there is no altitude
induced pressure differential in the packaging, no pressure change
inside the bottle and no change in the spacing between the top of the
cap and the rim of the bottle, there will be no immediate change in the
sealing force that affects the bottle's ability to maintain a seal. An
increase in altitude will cause an increase in the thread contact
force, but no immediate change in the sealing force. These conditions
persist for as long as the pressure differential is maintained. Even
though the sealing force remains unchanged, the increased thread forces
could distort the cap and cause the cap threads to expand over the
bottle threads.
    Vibration further complicates the force on the bottle. The net
effect of the vibration force intermittently compresses and
decompresses the closure in rapid succession. This can temporarily
reduce the sealing force to zero. A rapid removal of the compression
force, which occurs naturally during vibration, may not allow the
closure to recover quickly enough to maintain a seal. It may take
several seconds, even minutes, for the closure to return to its
original configuration, if it returns to the original configuration at
all. Thus, while the bottle and cap are intermittently compressing and
decompressing, there may be a gap, which could result in a leak of
material from the package.
    Finally, the effect of internal pressure and stress relaxation
after initial closure of the inner receptacle, particularly with
thermoplastic bottles and caps, can lead to a reduction of sealing
force on the inner receptacle and may also cause failure of a packaging
during air transport. Studies reviewed in section III of this notice
demonstrate that when a thermoplastic bottle and cap are initially
closed, stress relaxation can account for a reduction of nearly 50% in
removal torque within minutes of application and an 80% reduction of
removal torque over several days or weeks. Loss of sealing force due to
the combination of creep and stress relaxation can also contribute to
packages leaking in air transportation. As can be understood, the
combination of stress relaxation, vibration, and low pressure at high
altitudes may reduce the overall sealing force, thereby compromising
the closure integrity of a packaging and resulting in leakage from the
packaging. The air transportation of small parcels typically includes
multiple flights to reach destination. Therefore, this stress cycle on
the closure systems of inner packagings repeats itself multiple times
from origination to destination.

III. Analyses of the Problem

    The following studies simulated the stresses of low external
pressure and vibration on combination package integrity and performance
before, during, and while in-flight. These same stresses induced by low
external pressure and vibration are encountered in-flight when cargo
and feeder aircraft transport combination packages in non-pressurized
or partially-pressurized cargo holds. These conditions result in
substantial changes in pressure when compared to combination packages
being transported at or near sea level and require a higher level of
integrity as a result.

A. FAA Study

    In 1999, the FAA began a detailed study of hazardous material
package failures in air transportation. FAA analyzed incident data from
the DOT Hazardous Materials Information System (HMIS) during 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. Further study of the spill or leak
incidents concluded that package closure/seal failure rates were as
high as 65% for plastic and metal inner packagings and 23% for glass
inner packagings. All failed inner packagings were packaged in outer UN
4G marked fiberboard boxes. Based on these study results, FAA concluded
that either the inner packagings were not

closed properly as specified in the packaging manufacturer's closure
instructions or that the inner packagings were not capable of meeting
the pressure differential requirement or vibration standard of the HMR
or both. In addition, because the majority (85%) of the materials that
spilled or leaked during flight were toxic, corrosive or flammable,
they could have released potentially harmful fumes or vapors into the
cabin posing a threat to passengers and crew members. FAA determined
that further research on the actual effects of vibration and pressure
differential in air transport was warranted.
    As a result of the conclusions of FAA's study of combination
packaging failures in 2000, FAA conducted extensive laboratory research
and public outreach in multiple fora to analyze the problem and develop
potential solutions. Conclusions reached as a result of the following
laboratory studies indicate problems exist under the current regulatory
standards for which solutions need to be developed and implemented.

B. UPS Study

    UPS presented a study in 2000 to the American Society of Testing
and Materials (ASTM) outlining the conditions that packages experience
in the air transport environment. A copy of the UPS study is available
for review in the public docket for this rulemaking. The study resulted
in the following key observations related to air transport as described
in ASTM D 6653-01:
    1. Aircraft cargo compartments are typically pressurized to an
altitude of 8,000 ft resulting in a pressure differential of
approximately 26kPa on packages filled at or near sea level.
Temperature is maintained at approximately 20[deg]-23 [deg]C (68 [deg]-
74 [deg]F).
    2. Non-pressurized ``feeder aircraft'' typically fly at
approximately 13,000-16,000 feet. The highest recorded altitude in a
non-pressurized feeder aircraft was 19,740 ft. Temperatures ranged from
approximately 4[deg] to 24 [deg]C (25 [deg]-75 [deg]F). Based on these
findings, it is evident that packaged products transported by the
feeder aircraft network used by air cargo carriers may experience
potential altitudes as high as 20,000 feet, resulting in a pressure
differential of approximately 55 kPa. An inadequate packaging design
containing liquids at this pressure differential can fail in
transportation.

C. Michigan State University Study for FAA (FAA/MSU Study)

    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. 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
the study, the combination packages were placed in various
orientations, not all of which are authorized in the HMR. The study did
not include temperature effects because the temperatures in cargo holds
are not unusual or extreme. Each test condition in Table 1 represents a
different combination of low pressure and vibration that packages may
be exposed to while in, or pre- or post-air transport:

                     Table 1.--Ranking of Conditions
------------------------------------------------------------------------
                                                           Percentage of
                                                            failure of
                       Conditions                            packages
                                                              tested
------------------------------------------------------------------------
No vibration, 14,000 ft, 30 min.........................               0
Truck and air vibration, 0 ft, 30 min...................              14
Truck only vibration, 8,000 ft, 180 min.................              21
Truck and air vibration, 8,000 ft, 180 min..............              29
Truck and air vibration (typical sequence for air                     50
 transportation), 14,000 ft, 30 min.....................
------------------------------------------------------------------------

MSU procured 32 design samples of UN standard liquid hazardous material
combination packagings from three leading hazmat packaging suppliers.
See United Nations Recommendations on the Transport of Dangerous Goods
Model Regulations, Volume II, Part 6. The test combination packagings
were certified to meet current UN, ICAO, and applicable HMR
requirements. The testing was designed to replicate actual
transportation conditions. A copy of this report is available for
review in the public docket. Several key conclusions can be drawn from
the analysis:
     UN standard liquid hazardous material combination
packagings leaked under a combined vacuum and vibration test which
simulated the characteristics of air transportation and high altitude.
     One study concluded laboratory testing for pressure
differential capability without exposure to vibration may not be a
realistic replication of the air transportation environment. When both
forces are applied to a package simultaneously, the failure rate
increases to 50%.
     Altitude is more important than the length of time in
flight; higher altitude is more severe than lower altitude.
     Results of combined truck and air vibration are more
severe than truck vibration alone.
     Vibration periodically reduces the sealing force on a
liner or gasket and may produce intermittent gaps that open and close
at concentrated pressure points.
     The study was based on the conditions normally encountered
by a package in truck and air transport.

D. Michigan State University Study for PHMSA (PHMSA/MSU Study)

    In 2003, PHMSA also initiated a study with MSU to compare the HMR
requirements and the testing used in the FAA/MSU Study discussed
previously. To provide for a more thorough evaluation of the
performance of liquid hazardous materials combination packagings, this
phase of testing was conducted on a smaller number of packaging
designs; however, a much greater number of packagings of each design
were tested in this study. In the 2002 FAA/MSU study, two packagings of
each design were tested; for this study, PHMSA tested thirty packagings
from each of eleven designs. With the exception of three packaging
designs, all of the packagings tested during this phase had been tested
for the 2002 FAA/MSU study. See Table 2 below. A copy of this report is
available for review in the public docket.

                     Table 2.--Ranking of Conditions
------------------------------------------------------------------------
                                                           Percentage of
                                                            failures of
                       Conditions                            packages
                                                              tested
------------------------------------------------------------------------
Random vibration and vacuum, vertical orientation                     12
 (conforming to HMR), 14,000 ft, one hour...............
Random vibration and vacuum, horizontal orientation,                  18
 14,000 ft, one hour....................................
Vacuum only, 95 kPa for 30 min, inverted orientation....              13
Random vibration, one hour..............................              11

    Average failure rate................................              13
------------------------------------------------------------------------

    The conclusions from this testing supported MSU's previous testing
conducted for FAA:
     Packages performed unsatisfactorily when tested in the
orientation required by the HMR; when the packages were oriented
improperly, the leakage rate was even greater.
     Proper package orientation is a critical factor in
reducing leaks from packages.

     UN standard combination packagings did not pass the
combined pressure differential and random vibration while in the HMR
required orientation. Of the 99 bottles subjected to this test, 87
successfully passed the test.
     Laboratory package failure rate is greater than 10% and
would be considered unacceptable based on industry standards with a
lower safety risk (i.e., non-hazmat packagings). Acceptable failure
rates for consumer products is less than 5%; electronics is less than
1%; food/pharmaceutical less than 3-5%; the average failure rate of
this controlled study was 13%.
     Packages that utilized a secondary means of closure had a
lower rate of failure.
     Testing in a horizontal orientation that simulated air
transport combining random vibration and a pressure differential
(vacuum) of 59.5 kPa (14,000 ft), for one hour, resulted in an 18%
failure rate.

E. PHMSA Review of Incident Data

    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 are transported by
aircraft annually contained in 7,657,152 combination packaging
shipments. Of that total, our analysis concluded that out of
approximately 483 failures (.00006%) in air transportation involving
combination packagings containing liquids each year, 20 are reported as
``serious.'' An incident is considered serious if it 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; and (7) the
release of a bulk quantity (over 450 liters (119 gallons) or 400
kilograms (882 pounds)) of a hazardous material. We want to emphasize
that any incident, such as a package failure, involving hazardous
materials in air transportation is unacceptable. In air transportation,
any incident could quickly escalate and result in irreversible,
possibly catastrophic, consequences.
    Accounting for approximately 80 percent of all packages transported
by air, combination packagings containing liquids are involved in 44
percent (483) of all package failures annually. Inner packaging closure
failures within a combination outer packaging are the primary cause of
incidents involving combination packagings in air transportation. Such
failures could be the result of pressure differential (packages closed
at sea level subjected to lower pressure on planes), ``backing off'' of
the closure (closures that appear tight but loosen during
transportation), improper closures, or some other cause. Our analysis
also suggests that most incidents involve combination packagings that
contain flammable liquids (e.g., paint and paint related material) of
varying degrees of hazard. Some additional statistical data from the
2007 incident review include:
     Incident trends are similar to earlier FAA studies.
     Laboratory research validates the conclusion that inner
receptacles (e.g., bottles and caps) leak as indicated in the incident
data.
     Leaking (failing) closures and inner receptacles are not
the leading cause of incidents in air transportation; however, over 40%
of combination packages containing liquids that fail in air
transportation do involve closures and inner receptacles.
     Flammable liquids are the most common liquid hazardous
materials released from failed packages in air transportation. Such
materials or its vapor would seek and could find an ignition source
resulting in fire or explosion.
     In 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
failure continues to be a troubling statistic.
     Combination packages containing liquids that fail in air
transportation release on average 0.5 gallons of liquid hazardous
materials.
    PHMSA presented the results of this review at a June 21, 2007
meeting with stakeholders to discuss air packaging issues. The 44
participants included cargo and passenger air carriers, packaging
manufacturers and testing laboratories, FAA and PHMSA personnel, and
representatives of industry trade associations. The shippers, air
carriers, and enforcement personnel present generally agreed that the
current capability requirements for air packagings are difficult to
comply with and suggested that specific test methods designed to
demonstrate that packagings will withstand the air transportation
environment should be specified in the HMR.
    Stakeholders at the meeting also suggested that increased outreach
through industry partnership and targeted enforcement for habitual
offenders would significantly enhance achievement of PHMSA and FAA
safety goals without additional regulation.

IV. Purpose of This ANPRM

    As previously noted, to enhance aviation safety, PHMSA and FAA are
seeking to identify cost-effective solutions that can be implemented to
reduce incident rates and potentially detrimental consequences without
placing unnecessary burdens on the regulated community. We are
soliciting 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. Based on PHMSA and FAA analyses, it
appears that some combination packaging designs used to transport
hazardous materials by aircraft may not meet the pressure differential
and vibration capability standards mandated under the HMR. Indeed, the
testing 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.
Because aircraft accidents caused by leaking or breached hazardous
materials packages can have significant consequences, the air transport
of hazardous materials requires exceptional care and attention to
detail. Therefore, we are considering measures to reduce the incidence
of package failures and to minimize the consequences of failures should
they occur.
    The fact that specific test methods are not specified in the HMR or
the ICAO Technical Instructions leads to inconsistencies in package
integrity and results in varying levels of compliance among shippers.
For example, we understand that, because the pressure differential and
vibration capability standards for combination packagings are not
required to be verified by a test

protocol, 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. Further, some less experienced shippers or manufacturers may
not understand that their packagings must withstand pressure
differential and vibration requirements. In addition, some shippers or
manufacturers may not realize that both UN Standard packaging and
packagings that are not required to be certified as meeting a
specification or standard are subject to the pressure differential
capability requirement. This would include packagings for products,
such as limited quantities and consumer commodities, where non-
specification packagings are authorized. A significant percentage of
aircraft incidents involving hazardous materials appear to result from
failures of non-specification packagings.
    As indicated above, a non-specification packaging is not required
to meet specific performance requirements. Rather, a non-specification
packaging must meet general packaging requirements and, for air
transportation, must be capable of withstanding pressures encountered
at altitude. We invite comments on how to enforce this ``capability''
standard for non-specification packagings and ask whether a test of
some sort should be required to verify packaging integrity.
    A complicating factor that appears to be contributing to packaging
failures and non-compliance is that assembly of packages in some cases
is not consistent with the design type that was originally tested. In
some cases, manufacturers change components without informing the
shipper; in other cases, shippers specify or change components without
appropriate verification and testing to determine compliance with the
applicable performance standard. The numerous variables that exist in
the interaction of closures, liners, and container neck finishes
preclude the use and validity of general assumptions about equivalent
pressure performance capabilities of similar containers.
    As an alternative to regulation, the FAA implemented an aggressive
public outreach program over the past seven years targeted at specific
stakeholder audiences, including thousands of shippers, packaging
laboratories, industry research and training institutes, airline
operators, and chemical manufacturers. In addition, several voluntary
industry standards (test protocols) were either created or revised as a
result of the public (independent) and private funding of the studies
detailed in the previous sections above. A copy of the report listing
the specific public outreach efforts conducted by FAA on this issue can
be found in the docket for this rulemaking.
    Some regulatory solutions under consideration in this rulemaking
process are explained in more detail in the following sections.

A. Design Qualification and Periodic Retesting

    (1) Pressure differential test. Currently in the HMR, all
packagings containing liquids and intended for transport by air must 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 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 49 CFR
173.27(c)). This requirement is also applicable to liquids excepted
from specification or UN Standard packaging, such as those authorized
for limited quantities and consumer commodities. This would include
eligible liquids of Classes 3 (flammable) and 8 (corrosive), and
Divisions 5.1 (oxidizer), 5.2 (organic peroxide), and 6.1 (poisonous).
Liquids contained in inner receptacles that do not meet the minimum
pressure requirements in the current Sec.  173.27(c) may be overpacked
into receptacles that do meet the pressure requirements.
    In this ANPRM, we are soliciting comments on whether we should
require mandatory pressure differential testing for all specification
or UN Standard combination packaging designs containing liquids
transported or intended for transportation aboard aircraft. In
addition, because many incidents are attributed to non-specification
package failures, we are soliciting comments on potential solutions to
this problem that may or may not include the mandatory pressure
differential testing of inner receptacles intended to contain liquids.
One approach would be to incorporate by reference a number of
acceptable test methods and to simplify the regulations by removing the
requirement for calculating the test pressure in Sec.  173.27(c).
Shippers (offerors) would be responsible for using inner receptacles
that have been certified as passing one of the following test methods:

----------------------------------------------------------------------------------------------------------------
                 Test                         Equipment           Time under pressure     Pressure differential
----------------------------------------------------------------------------------------------------------------
(a) 49 CFR 178.605...................  Pressure fitting, pump.  5 minutes for metal and  60 kPa differential.
                                                                 composite (including
                                                                 glass, porcelain, or
                                                                 stoneware); 30 minutes
                                                                 for plastic.
(b) ASTM D6653-01....................  Vacuum chamber and       60 minutes.............  14,000 ft (41.8 kPa
                                        associated gages and                              differential) \1\ or
                                        pumps.                                            16,000 ft (46.4 kPa
                                                                                differential).\2\
(c) ASTM D4991-94....................  Transparent vessel       30 minutes for plastic,  60 kPa pressure
                                        capable of               10 minutes for           differential.
                                        withstanding 1\1/2\      everything else.
                                        atmospheres, inlet
                                        tube and vacuum pump,
                                        moisture trap,
                                        solution of ethylene
                                        glycol in water.
(d) ASTM F1140 or Part 178 Appendix D  Inlet tube.............  30 minutes.............  60 kPa pressure
 for flexible packaging.                                                                  differential.
----------------------------------------------------------------------------------------------------------------
\1\ If it is not possible to use the atmospheric and temperature pre-conditioning specified.
\2\ For test specimens where the atmospheric and temperature pre-conditioning is followed.

    (a) 49 CFR 178.605--Low Pressure Hydrostatic Pressure Test Method
Suitable for Air Inner Packages. This test is currently required for
all single and composite packagings intended to contain liquid, but it
is not currently required for inner packagings of combination
packaging. This test, which uses the hydrostatic test method, pumps
high-pressure water into a packaging to create a pressure differential.
Failure is determined if there is leakage of liquid

from the package during the test. This could be observed as a stream of
liquid exiting the package or rupture of the package.
    (b) ASTM D6653-01--Standard Test Methods for Determining the
Effects of High Altitude on Packaging Systems by Vacuum Method. This
method uses a vacuum chamber to determine the effects of pressure
differential on packages. Upon completion of the test, the package is
removed and checked for damage in the form of package failure, closure
failure, material failure, internal packaging failure, product failure,
or combinations thereof. If these are all free of damage, then the
packaging should be reassembled for testing in accordance with an
industry accepted packaged product performance test, such as Practice D
4169. This will help determine if the pressure differential
conditioning had an effect on the performance of the packaging system.
    (c) ASTM D4991-94 (Re-approved 1999) Standard Test Method for
Leakage Testing of Empty Rigid Containers by Vacuum Method. This test
is applied to empty packagings to check for resistance to leakage under
differential pressure conditions, such as those that can occur during
air transport. Instead of pumping high-pressure air into the packaging,
the air pressure on the exterior of the packaging is reduced using a
vacuum. The package is considered to fail if it leaks a continuous
stream or recurring succession of bubbles or if fluid is found within
the test specimen after the test.
    (d) ASTM F 1140--Standard Test Methods for Internal Pressurization
Failure Resistance of Unrestrained Packages for Medical Applications.
This test applies to flexible packaging (e.g., bags).
    (2) Vibration testing. When packages travel through the
transportation and distribution environment, they are subject to
vibration by automated sorting systems and during transit aboard
aircraft, railcars, or trucks. As packages move on conveyor systems
during automated sorting, they experience a low level of vibration at a
constant frequency. Aircraft-induced vibration typically is very high
frequency and low amplitude for 30 minutes to 12 hours on domestic
shipments, depending on origin, destination, and the carrier's network.
Vibration on trucks occurs at lower frequencies, but at much higher
amplitudes than on aircraft. This duration can last anywhere from 5
minutes to several days depending upon the route and the distance from
origin to destination. Vibrations from these various sources can result
in damage, including scuffing, abrasion, loosening of fasteners and
closures, and package fatigue. There are two main types of vibration
testing used for packages: Fixed frequency vibration and random
vibration. Random vibration provides the most realistic representation
of actual transport conditions, but requires equipment that is more
expensive.
    The HMR require non-bulk packagings to be capable of withstanding,
without rupture or leakage, the vibration test in 49 CFR 178.608. In
this ANPRM, we are soliciting comments concerning whether the HMR
should be revised to require all specification or UN Standard
combination packaging design types containing liquids transported or
intended to be transported aboard aircraft to be vibration tested and
whether alternative vibration test methods should be authorized for
non-bulk packagings. We invite comments on whether the random vibration
encountered during the ``sorting'' process and multiple flight segments
of today's expedited shipping environment contributes to package
failure and whether more representative vibration test methods should
be specified in the HMR.
    Alternative test methods for determining package vibration
capability are described in the following table:

----------------------------------------------------------------------------------------------------------------
              Test                       Title             Equipment           Frequency             Time
----------------------------------------------------------------------------------------------------------------
                                     Vertical Linear Test at Fixed Frequency
----------------------------------------------------------------------------------------------------------------
ASTM D999-01 Method A1..........  Repetitive Shock    Vibration test      Start vibration at  Predetermined
                                   Test (Vertical      machine with        2 Hz and steadily   time, as stated
                                   Motion).            horizontal          increase until      in applicable
                                                       surface and         the test specimen   specification, or
                                                       mechanism for       repeatedly leaves   until
                                                       vertical            the test surface.   predetermined
                                                       sinusoidal input;                       amount of damage
                                                       fences,                                 is detected.
                                                       barricades or
                                                       other restraints.
ASTM D999-01 Method A2..........  Repetitive Shock    Vibration test      Start vibration at  Predetermined
                                   Test (Rotary        machine with        2 Hz and steadily   time, as stated
                                   Motion).            horizontal          increase until      in applicable
                                                       surface and         the test specimen   specification, or
                                                       mechanism for       repeatedly leaves   until
                                                       rotational input    the test surface.   predetermined
                                                       with a vertical                         amount of damage
                                                       component                               is detected.
                                                       approximately
                                                       sinusoidal;
                                                       fences,
                                                       barricades or
                                                       other restraints.
ASTM 4169-04a Paragraph 13.1      Loose Load          Use Test Method     Use Test Method     Assurance Level I:
 (Schedule F).                     Vibration           ASTM D999, Method   ASTM D999, Method   60 min dwell
                                   (Repetitive         A1 or A2.           A1 or A2.           time; Assurance
                                   Shocks).                                                    Level II: 40 min
                                                                                dwell time;
                                                                                Assurance Level
                                                                                III: 30 min dwell
                                                                                time.
49 CFR 178.608..................  Repetitive Shock    Vibration platform  A frequency that    60 minutes.
                                   Test (Vertical or   that has a          causes the
                                   Rotary Motion).     vertical or         package to be
                                                       rotary double-      raised from the
                                                       amplitude (peak-    vibrating
                                                       to-peak             platform to such
                                                       displacement) of    a degree that a
                                                       one inch.           piece of material
                                                                           of approximately
                                                                           1.6 mm thickness
                                                                           can be passed
                                                                           between the
                                                                           bottom of any
                                                                           package and the
                                                                           platform.
----------------------------------------------------------------------------------------------------------------

                                   Vertical Linear Test at Variable Frequency
----------------------------------------------------------------------------------------------------------------
ASTM D999-01 Methods B & C......  Resonance Tests...  Vibration test      Find the resonant   Dwell for
                                                       machine with        frequency of the    specified length
                                                       horizontal          package using       of time at each
                                                       surface and         either the sine     resonant
                                                       mechanism for       sweep method or     frequency
                                                       vertical            the random          determined
                                                       sinusoidal input;   vibration input     earlier or until
                                                       suitable fixtures   method. The         damage to the
                                                       and attachment      minimum frequency   packaging is
                                                       points to rigidly   range should be     noted. If no
                                                       attach the test     from 3 to 100 Hz.   dwell time is
                                                       packaging to the                        specified, 15
                                                       platform;                               minutes is
                                                       instrumentation.                        recommended.
----------------------------------------------------------------------------------------------------------------
                                              Random Vibration Test
----------------------------------------------------------------------------------------------------------------
ASTM 4728-01....................  Random Vibration    Vibration table     Frequency is        Predetermined
                                   Testing.            supported by a      determined by       time, as stated
                                                       mechanism capable   power spectral      in applicable
                                                       of producing        density (PSD)       specification, or
                                                       single axis         profile.            until
                                                       vibration; inputs                       predetermined
                                                       at controlled                           amount of damage
                                                       levels of                               is detected.
                                                       continuously
                                                       variable
                                                       amplitude
                                                       throughout the
                                                       desired range of
                                                       frequencies;
                                                       suitable fixtures
                                                       to restrict
                                                       undesired
                                                       movement; closed
                                                       loop controller
                                                       or data storage
                                                       media open loop
                                                       control systems;
                                                       instrumentation.
ASTM 4169-04a Paragraph 12.4      Random Test Option  See Test Method     Frequency is        For Distribution
 (Schedule D and E).                                   ASTM 4728 Method    determined by       Cycles 12 and 13,
                                                       A or B.             power spectral      a 60-minute truck
                                                                           density (PSD)       test followed by
                                                                           profile.            a 120-minute air
                                                                           Frequency ranging   test.
                                                                           from 2-300 Hz for
                                                                           air mode.
----------------------------------------------------------------------------------------------------------------

    (a) ASTM D999-01: Standard Test Methods for Vibration Testing of
Shipping Containers
    (b) ASTM D4169 04a Paragraph 12.4 or Paragraph 13.1: Standard
Practice for Performance Testing of Shipping Containers and Systems
    (c) ASTM D4728-01: Standard Test Method for Random Vibration
Testing of Shipping Containers
    (3) ``Combination'' Pressure Differential and Vibration Tests. In
this ANPRM, we are soliciting comments concerning whether sequential
pressure and vibration testing are sufficient to ensure packaging
integrity, i.e., a ``combination'' of both pressure and vibration
testing. The vibration testing would be followed by pressure testing,
which is considered less severe than simultaneous testing, which
subjects a packaging to vibration and pressure at the same time.
Simultaneous testing under the combination test standards involves
rather sophisticated, extensive, and expensive equipment, and
relatively skilled operators. In this ANPRM we are soliciting comment
on whether these methods should be authorized, given our understanding
that a number of companies are already voluntarily applying these
tests. We invite commenters to address successful completion of these
tests as an alternative means of compliance with existing pressure
differential and vibration capability requirements.
    The following three combination tests are voluntary industry
standards that we may consider as alternatives for conducting vibration
testing and pressure differential testing on the same inner packaging:

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

----------------------------------------------------------------------------------------------------------------
(a) ISTA 3A..........................  Individual packaged       Atmospheric     The section for random
                                        products weighing 150    Preconditioning.         vibration under
                                        lbs. or less; air or     Shock (drop)..   pressure is optional.
                                        ground transportation.   Vibration        When conducted, the
                                                                 (random with and         pressure and vibration
                                                                 without top load).       are simultaneous. A
                                                                 Vibration        pressure approximately
                                                                 (random under vacuum).   equal to an altitude
                                                                 Shock (drop)..   of 10,000 ft. is used
                                                                                for 60 minutes.
(b) ASTM 4169 Distribution Cycle 12..  Air (intercity) and       Handling......  Low-pressure section
                                        motor freight (local),   Stacked          instructs packages to
                                        over 100 lb., unitized.  Vibration..              be tested at pressure
                                                                 Low-Pressure..   of expected altitudes.
                                                                 Vehicle          If not known, refer to
                                                                 Vibration and            ASTM D6653, which
                                                                 Handling..               specifies 14,000 ft.
                                                                                for 60 minutes. See
                                                                                ASTM 4169 for
                                                                                vibration details.

(c) ASTM 4169 Distribution Cycle 13..  Air (intercity) and       Handling......  Low-pressure section
                                        motor freight (local),   Vehicle          instructs packages to
                                        single package up to     Stacking..               be tested at pressure
                                        100 lb.                  Loose-Load       of expected altitudes.
                                                                 Vibration..              If not known, refer to
                                                                 Low-Pressure..   ASTM D6653, which
                                                                 Vehicle          specifies 14,000 ft.
                                                                 Vibration and            for 60 minutes. See
                                                                 Handling..               ASTM 4169 for
                                                                                vibration details.
----------------------------------------------------------------------------------------------------------------

    (a) ISTA 3A--This is part of a series of general simulation tests
that are meant to recreate the hazards of a distribution environment.
It is similar to ASTM 4169 because it requires rather sophisticated,
extensive, and expensive equipment (such as a random vibration table
with appropriate instrumentation) and relatively skilled operators.
Unlike D4169, however, there are a number of specific procedures,
covering a number of packaged products and distribution systems, so
much less interpretation is required. This procedure includes shock and
vibration testing with an option to include simultaneous pressure
testing during one of the random vibration phases.
    (b) ASTM 4169 Distribution Cycle 12--This is the only ASTM standard
devoted to packaged product performance in distribution. It is a pre-
shipment general simulation test covering a range of packaging types
and distribution scenarios. For example, it lists 18 distribution
cycles that each represents a different mode or environment. There is a
prescribed sequence of performance tests for each of these distribution
cycles. Air transportation is covered in Distribution Cycles 12 and 13.
These cycles include several types of vibration and pressure testing.
However, these are performed sequentially, unlike ISTA 3A, which has
the option to perform vibration and pressure testing simultaneously.
Distribution Cycle 12 tests are for unitized freight that weighs over
100 lbs. More details on the sequence of testing can be found in the
previous table.
    (c) ASTM 4169 Distribution Cycle 13--Distribution Cycle 13 tests
are for loose-load freight weighing under 100 lbs. The prescribed tests
specify an additional vibration test to simulate the more aggressive
shipping environment. More details on the sequence of testing can be
found in the previous table.
    (4) Elimination of Selective Testing Variations. The HMR currently
provide selective testing variations--that is, inner packagings that
differ in only minor respects from a tested inner packaging design type
may be used without further testing under the conditions specified in
49 CFR 178.601(g) (selective testing variation 1). In this ANPRM, we
invite commenters to address whether this variation should be revised,
restricted or eliminated for packagings intended for air
transportation. In addition, we are concerned that the use of different
components (e.g., bottle, cap, liner) than what were originally tested
may result in less than effective closure systems and may result in
packagings that are not representative of the originally tested design
type. The numerous variables that exist in the interaction of closures,
liners and container neck finishes are complex and the use and validity
of general assumptions about equivalent pressure performance
capabilities of similar containers is not straightforward. On the basis
of compliance reviews and incident investigations, we believe that this
selective testing provision may result in the use of packaging systems
that are not capable of withstanding conditions encountered in air
transport and at high altitude. Changes in quality control measures and
materials may also adversely affect packaging performance. For example,
changing the type of resin used in plastic bottle manufacturing can
significantly contribute to the ability of the packaging system to
perform as intended. Packaging manufacturers may not readily recognize
the complexity and importance of controlling component and
manufacturing variations. We invite comments on how best to address
this issue and whether certain changes in packaging components or
variations in materials of construction should be reevaluated or tested
and retested as a new design.

B. Other Requirements

    (1) Liners and Absorbent Material. Packages containing liquid
hazardous materials must include a method for containing the liquid,
whether it is a leak-proof liner, plastic bag, absorbent material or
other equally effective means. Liners are currently required in the
following circumstances:
     Packages containing certain types of hazardous materials
liquids (e.g., Class 3, 4, or 8, or Division 5.1, 5.2, or 6.1) when
absorbent materials are required and the outer packagings are not
liquid-tight and transported by aircraft (49 CFR 173.27(e)).
     Either the inner or outer packagings when mercury is
transported by aircraft (49 CFR 173.164).
    It is our understanding, based on discussions with shippers, that
many shippers already use protective liners with liquid hazardous
materials packages. These shippers suggest that liners are included
only if the packages are intended for transportation by air. However,
many of these shippers do not have automated processes for assembling
combination packagings and, therefore, manually insert liners when
needed.
    As an alternative to testing, we are considering requiring the use
of a liner for packagings that are not liquid-tight (e.g., fiberboard),
whether absorbent material is required or not (for all liquid hazardous
materials, regardless of hazard class). We are soliciting comments on
whether the use of liners with or without absorbent material would be
an effective means of preventing leaks from packages. In addition, we
invite commenters to provide data and information concerning the costs
that may be associated with the use of liners for various hazardous
materials packaging configurations.
    (2) Secondary Means of Closure. Currently, the HMR require a
secondary means of closure only when inner packagings are closed with
stoppers, corks or other such friction-type closures. This secondary
means of closure must be held securely, tightly and effectively in
place by positive means. We are soliciting comment on the types of
secondary closures currently being used and their relative
effectiveness in preventing leaks. We are interested in whether
requiring a secondary means of closure for certain packaging
configurations has merit. We are also aware the ICAO Technical
Instructions, beginning in January 2011, will require a secondary means
of closure on all inner packagings containing liquids in a combination
packaging design. As an alternative to this requirement, the ICAO
Technical Instructions will allow a leakproof liner in its place.
Commenters are invited to provide data and information concerning the
costs that may be associated with a requirement to apply a secondary
means of closure for inner

packagings containing liquids intended for transportation by aircraft.

IV. Questions for Public Comment

    We invite comments, data, and information that will help PHMSA and
FAA determine the degree to which the packaging problems outlined in
this ANRPM pose a transportation safety risk and the parameters of that
risk. Commenters are also invited to suggest strategies that would help
enhance the safe transportation of hazardous materials, particularly by
air, including regulatory amendments, systems risk analysis, enhanced
outreach and training efforts, aggressive enforcement, and combinations
of these measures. In reviewing the public comments on these measures,
PHMSA and FAA will consult with the Transportation Security
Administration on security-related hazardous materials transportation
requirements to ensure that any proposed amendments would be consistent
with the overall security policy goals and objectives established by
the Department of Homeland Security and would not confront the
regulated community with inconsistent security guidance or requirements
promulgated by multiple agencies. In addition, we ask commenters to
address the following questions:

General

    1. The air transportation environment has changed considerably
since the current packaging requirements were adopted. For example,
overnight and second day parcel delivery has become a common shipping
method. Do the current transportation conditions (e.g., multiple flight
segments) need to be reevaluated and regulations updated accordingly to
accommodate the current conditions experienced during normal
transportation?
    2. Does a combination packaging design problem exist unique to air
transportation? Are inner packagings of combination packaging designs
used to transport hazardous materials in air transportation adequate?
Are the requirements clearly understood, and if not, how could this be
improved?
    3. Are current ``capability'' requirements in the HMR sufficient to
prevent or mitigate combination package failures in air transportation?
    4. Should we strengthen the structure and wording of the
regulations to more clearly specify the applicability of the general
packaging requirements in 49 CFR 173.22, 173.24, 173.24a, and 173.27 to
both specification and non-specification packagings?
    5. Would incorporation of the more explicit language that is used
in ICAO TI clarify some of the relevant test methods and responsible
parties? Should the respective responsibilities of packaging
manufacturers and shippers be clarified?

Pressure Differential Testing

    1. Should a standardized test regimen be adopted in the HMR for
combination packaging intended for air transport in addition to what is
already required?
    2. Should new test methods be considered for vibration and pressure
differential as part of the design qualification test sequence? Are
there alternative cost-effective test methods for ensuring combination
packaging integrity in air transportation?
    3. Are the 95 kPa and 75 kPa pressure requirements sufficient or
should the vapor pressure calculation specified in 49 CFR 173.27(c)
continue to be required? Would simplifying the requirements enhance
compliance?

Alternatives to Testing

    1. Would a liner or similar approach be an acceptable alternative
to required testing for pressure differential or vibration capability?
    2. Would approaches such as new test methods, secondary closure
methods, and cap/bottle design be possible solutions for reducing
package leaks?
    3. Should the 49 CFR 178.601(g)(1) Selective Testing Variation 1 be
eliminated or restricted for combination packagings containing liquids
and offered for transportation by air? If not, how could uniform
compliance and an appropriate level of safety be addressed while
continuing to allow this variation?
    4. Should a secondary means of closure be mandated for all inner
packagings or specific types of inner packagings containing liquids in
combination packagings intended for transportation by aircraft?
    5. Should current package marking requirements be expanded to
include a shipper verification and certification that a packaging
conforms to applicable air packaging requirements?
    6. Should inner receptacles that are proven to meet pressure
differential requirements be required to bear an indicative mark?

Risk-Based Actions

    1. Should changes to test protocols in the HMR apply to packagings
used for the air transportation of all liquids including those in non-
specification packagings (e.g., paint, adhesives, and consumer
commodities)?
    2. Should high-risk/high-consequence liquid hazardous materials be
restricted even further than currently required? Is there a better
risk-based approach not yet developed?
    3. Is there a way to reduce risk by focusing on the interrelation
between packaging components and evaluating the relationship between
the packaging design and preparation of the package from a systems
perspective?
    4. Would a combination of regulatory solutions, including a
systems-wide risk analysis based on package design, package volume and
transportation methods, be an effective approach as a means of reducing
package leaks?
    5. Are there opportunities to reduce risk through government-
private industry partnership?

Closure Systems

    1. What can be done to reduce the number of package failures due to
human factors such as over-tightening or under-tightening of closures?
Closures loosened during long shelf storage due to both liner set and
finish or closure relaxation may be a cause of a significant number of
leaking bottles. Should a method be developed for a distributor to open
a sealed specification package, check and re-torque closures then re-
close the package for shipment in a manner that is consistent with the
regulations? This would also allow inspection for other degradation
caused by storage.
    2. Are production tolerances of bottle caps and neck finishes
suitable to ensure packages will not leak when the tolerances are at
the opposite extremes, i.e., a large bottle cap on a small bottle?
    3. Are the common bottles and caps currently used for the
transportation of hazardous materials manufactured with sufficient
quality control to ensure that all components meet the requirements for
effective sealing?
    4. Should the bottle threads, caps and cap liners be considered a
system and, as such, a single component of the design type? Should
testing be required if the system is changed? If not, what component or
components of a closure system should be allowed to be changed without
testing and under what conditions?
    5. If actual testing is needed, what standard or standards should
be adopted or allowed?
    6. Should ``capability'' be clearly defined in the HMR to improve
compliance and reduce package failures?

Outreach/Enforcement

    1. Would additional outreach or training be helpful in reducing the
number of package failures? Should specific outreach brochures be
developed?

    2. What is the best way to reach those hazmat employees that have
the greatest need for this information?
    3. Are there other enforcement strategies that could be used to
ensure compliance with ``capability'' requirements in order to reduce
package failures?

Miscellaneous

    1. Are packages containing liquid hazardous materials being loaded
in unit load devices according to their orientation markings? If not,
should this practice be considered a condition normally incident to
transportation? Is better enforcement of this requirement necessary?
    2. Should an article (e.g., electric storage battery containing
acid or alkali) be required to be successfully tested for pressure
differential capability? What articles, if any, should be excepted from
such a requirement?
    3. To what extent are there similar issues in international air
commerce related to the package failures discussed in this notice? What
steps have been taken to eliminate or reduce such failures?
    4. How many small business entities would be impacted by a
regulation that requires actual vibration and pressure differential
testing rather than the current capability standard in the HMR? How
many small business entities would be impacted by a regulation that
requires actual testing to verify pressure differential capability
only?
    5. What costs to small business entities would be associated with
required testing for vibration and pressure differential capability?
What costs to small business entities would be associated with required
testing for pressure differential capability only?
    6. What alternatives, regulatory or otherwise, should PHMSA
consider with regard to impact on small business entities while meeting
its goal to reduce or eliminate incidents involving combination
packagings in air transportation?
    PHMSA and FAA will base any proposed changes on both suggestions
and comments provided by interested persons in response to this ANRPM
as well as the initiative of the agencies. These include the analyses
required under the following statutes and executive orders in the event
we determine that rulemaking is appropriate:
    A. Executive Order 12866: Regulatory Planning and Review. E.O.
12866, as amended by E.O. 13258, requires agencies to identify the
specific market failure (such as externalities, market power, lack of
information) that warrant new agency action, as well as assess the
significance of that problem, to enable assessment of whether any new
regulation is warranted. When an agency determines that a regulation is
the best available method of achieving the regulatory objective, E.O.
12866 also directs agencies to regulate in the ``most cost-effective
manner,'' to make a ``reasoned determination that the benefits of the
intended regulation justify its costs,'' and to develop regulations
that ``impose the least burden on society.'' We therefore request
comments, including specific data if possible, concerning the costs and
benefits that may be associated with revisions to the HMR on air
packaging integrity. A rule that is considered significant under E.O.
12866 must be reviewed and cleared by the Office of Management and
Budget before it can be issued.
    The number of affected combination package design types requiring
certification under any required testing regimen is estimated as a
function of the number of package manufacturers producing pre-certified
designs, the number of shippers using self-certified designs, and the
number of designs certified by each group. PHMSA estimates that 75 to
85 percent of air shippers exclusively purchase and use pre-certified
combination packaging designs, that is, combination packaging designs
that have been tested to existing regulatory standards. The remaining
15 to 25 percent of air shippers have sufficient shipment volumes to
make it economical for them to use combination packaging designs that
they have certified themselves. Combination packaging designs that are
pre-certified for air transportation should already reflect any costs
associated with testing performed on them to verify integrity. For
self-certifiers who choose not to invest in equipment to verify
combination packaging design integrity and outsource that function, the
cost is approximately $300 for a standard vibration test and $200 for a
standard pressure differential test. Multiple designs may be certified
from a single test. There may be as many as 21,000-36,000 different UN
specification combination packaging designs for liquids that would
require testing if PHMSA adopts new or enhanced testing requirements
for combination packagings. Total costs for testing could amount to
$10.5M-$18.0M if both tests are required. Benefits under any rulemaking
action would be assessed based on incident avoidance and the
consideration of consequences involving a high-consequence/low
probability accident. We invite commenters to address the potential
costs of new or enhanced testing requirements, including the number of
designs that would be affected and the total costs associated with such
testing.
    Additional regulatory options under consideration include requiring
a secondary means of closure applied to inner packagings or receptacles
containing liquid hazardous materials within a combination package or
the required use of a liner in all combination packages containing
liquid hazardous materials intended for air transportation when the
outer packagings are not liquid tight. For the liner alternative, the
economic impacts of this requirement would stem from the cost of
inclusion of a liner for all combination packagings containing liquids.
Shippers would absorb the costs of including a liner; however, many
shippers already include a liner in these types of packagings. Informal
industry surveys indicate that shippers use a protective liner with an
estimated 70 to 90 percent of all liquid hazardous materials
combination packages; prices for a standard 1 mm or thinner Poly Bag
line range from $0.06 to $0.08 per liner. Because of the uncertainty
regarding the potential designs for secondary means of closure and the
costs associated with them, we invite comments on the efficacy of such
an alternative and whether it should be considered in addition to, or
as an alternative to, the required use of a liner.
    B. Executive Order 13132: Federalism. E.O. 13132 requires agencies
to assure meaningful and timely input by state and local officials in
the development of regulatory policies that may have a substantial,
direct effect on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. We invite
state and local governments with an interest in this rulemaking to
comment on any effect that revisions to the HMR relative to air
packaging will cause.
    C. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments. E.O. 13175 requires agencies to assure meaningful
and timely input from Indian tribal government representatives in the
development of rules that ``significantly or uniquely affect'' Indian
communities and that impose ``substantial and direct compliance costs''
on such communities. While we do not anticipate an impact on Indian
tribal governments if we move forward with a regulatory action, we
invite Indian tribal

governments to provide comments if they believe there will be an
impact.
    D. Regulatory Flexibility Act. Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 601 et seq.), we must consider whether a proposed
rule would have a significant economic impact on a substantial number
of small entities. ``Small entities'' include small businesses, not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields, and governmental jurisdictions with
populations under 50,000. If you believe that revisions to the HMR
relative to air packaging integrity could have a significant economic
impact on small entities, please provide information on such impacts.
    E. Paperwork Reduction Act
    It is possible that a rulemaking action could impose new or revised
information collection requirements.

V. Regulatory Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This ANPRM is considered a significant regulatory action under
section 3(f) of Executive Order 12866 and, therefore, was reviewed by
the Office of Management and Budget. This ANPRM is considered
significant under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034).

B. 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.

    Issued in Washington, DC on July 1, 2008 under authority
delegated in 49 CFR part 106.
Edward T. Mazzullo,
Acting Associate Administrator for Hazardous Materials Safety.
[FR Doc. E8-15372 Filed 7-3-08; 8:45 am]

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[Federal Register Volume 86, Number 96 (Thursday, May 20, 2021)]
[Proposed Rules]
[Pages 27349-27350]
[FR Doc No: 2021-10563]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2020-0716; FRL-10023-92-Region 4]

Air Plan Approval; North Carolina; Monitoring: Recordkeeping:
Reporting

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve changes to the North Carolina State Implementation Plan (SIP)
submitted through the North Carolina Division of Air Quality (NCDAQ) on
October 9, 2020. The SIP revision seeks to modify the State's
monitoring, recordkeeping, and reporting regulations by adding one
definition, adding references to approved testing methods, updating the
reference format, and making minor changes to general formatting and
language use for clarity purposes. EPA is proposing to approve these
changes pursuant to the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before June 21, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2020-0716 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-8994. Ms. LaRocca can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On October 9, 2020, North Carolina submitted changes to the North
Carolina SIP for EPA approval. EPA is proposing to approve changes to
the following SIP-approved regulations under 15A North Carolina
Administrative Code Subchapter 02D,\1\ Section .0600, Monitoring:
Recordkeeping: Reporting: Rule .0601, Purpose and Scope; Rule .0602,
Definitions; Rule .0604, Exceptions to Monitoring and Reporting
Requirements; Rule .0605, General Recordkeeping and Reporting
Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR
part 51.\2\
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    \1\ In the table of North Carolina regulations federally
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred
to as ``Subchapter 2D Air Pollution Control Requirements.''
    \2\ The State submitted the SIP revisions following the
readoption of several air regulations, including .0601, .0602,
.0604, .0605, and .0606, pursuant to North Carolina's 10-year
regulatory readoption process at North Carolina General Statute
150B-21.3A.
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II. EPA's Analysis of North Carolina's Submittal

    The changes that are the subject of this proposed rulemaking make
revisions to monitoring, recordkeeping, and reporting regulations under
Subchapter 2D of the North Carolina SIP. Specifically, they revise the
SIP by adding one definition, adding references to approved testing
methods, updating the reference format, and making minor changes to
general formatting and language use for clarity purposes. EPA is
proposing to find that the changes do not interfere with any applicable
requirement concerning attainment and reasonable further progress, or
any other applicable CAA requirement. Detailed descriptions of the
changes are below:
    1. Rule .0601, Purpose and Scope is revised to make clarifying
edits to the rule text in the form of minor wording changes and an
update to the format of references.
    2. Rule .0602, Definitions is revised to reformat the definition of
``Emission standard'' and clarify that the term relates to State rules
or federal regulations, to add a definition for the term ``Good
operation and maintenance,'' \3\ to make minor wording, spelling, and
grammatical updates to the rule text, and to update the format of
references.
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    \3\ This term is defined as follows: ``Good operation and
maintenance means minimizing air pollutant emissions from air
pollution control equipment, reducing equipment malfunctions, and
ensuring continued compliance with State rules, federal regulations,
and permit requirements.''
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    3. Rule .0604, Exceptions to Monitoring and Reporting Requirements
is revised to make clarifying edits to the rule text regarding
monitoring requirements during system malfunctions and to clarify that
operation and maintenance practices for monitoring systems may be
specified by the manufacturer, federal regulation, rule, or a permit
condition. In addition, the revisions include a minor word change and
other changes to update the format of references.
    4. Rule .0605, General Recordkeeping and Reporting Requirements is
revised to make minor updates and minor wording changes to the rule
text and to update the format of references.
    5. Rule .0606, Sources Covered by Appendix P of 40 CFR part 51 is
revised to make minor changes to punctuation and rule text, update the
format of references, and clarify how compliance with the sulfur
dioxide and nitrogen oxide emissions standards is determined.
Specifically, the language is revised to clarify that average hourly
values shall be calculated based on a minimum of four data points, with
one data point in each of the 15-minute quadrants of the hour, and to
clarify that this data requirement does not apply to opacity
monitoring, which is based upon six-minute time periods, as stipulated
at paragraph .0606(c). In addition, paragraph .0606(f) is revised to
clarify that the owner or operator of the source shall conduct a daily
zero and span check of a continuous emissions monitoring system.
    Lastly, Method 6C and Method 7E of 40 CFR part 60, Appendix A, are
being added to paragraphs .0606(i) and (j), respectively, as approved
testing methods for determining compliance with the emissions standards
for sulfur

dioxide and nitrogen oxide, respectively. Additionally, the rule is
revised to allow other test methods approved into the SIP at 15A NCAC
02D .2600 via cross-references. The new cross-reference to approved
testing methods for sources of sulfur dioxide, which are regulated by
Appendix P to Part 51, is to 15A NCAC 02D .2611. The new cross-
reference to approved testing methods for sources of nitrogen oxide,
which are regulated by Appendix A to Part 60, is to 15A NCAC 02D .2612.
As these test methods have previously been approved in 15 NCAC 02D
.2600 as valid procedures to determine emissions from stationary
sources, EPA has determined the cross-references are appropriate.
    EPA has preliminarily determined that the changes to the
regulations above provide clarity and appropriate updates to
monitoring, recordkeeping, and reporting requirements. These changes
are minor and do not relax the regulations. The changes to the SIP do
not interfere with any requirement concerning attainment or any other
applicable requirement of the Act, and therefore, satisfy CAA section
110(l). For these reasons, EPA is proposing approval of the changes to
these regulations.

III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the following rules in 15A NCAC Subchapter 2D with a state-
effective date of November 1, 2019: Rule .0601, Purpose and Scope; Rule
.0602, Definitions; Rule .0604, Exceptions to Monitoring and Reporting
Requirements; Rule .0605, General Recordkeeping and Reporting
Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR
part 51. The proposed changes add one definition, add references to
approved testing methods, update the reference format, and make minor
changes to general formatting and language to provide clarity to the
monitoring, recordkeeping, and reporting requirements. EPA has made,
and will continue to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 office (please contact the
person identified in the For Further Information Contact section of
this preamble for more information).

IV. Proposed Action

    EPA is proposing to approve North Carolina's October 9, 2020, SIP
revisions, which contain changes to the following regulations under 15A
NCAC Subchapter 02D: Rule .0601, Purpose and Scope; Rule .0602,
Definitions; Rule .0604, Exceptions to Monitoring and Reporting
Requirements; Rule .0605, General Recordkeeping and Reporting
Requirements; and Rule .0606, Sources Covered by Appendix P of 40 CFR
part 51. The proposed changes are consistent with the CAA.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
proposes to approve state law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by state law.
For that reason, this proposed action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: May 11, 2021.
John B. Blevins,
Acting Regional Administrator, Region 4.
[FR Doc. 2021-10563 Filed 5-19-21; 8:45 am]
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