[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3308-3389]
[FR Doc No: 2010-33324]

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Part III

Department of Transportation

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49 CFR Parts 171, 172, 173, et al.

Hazardous Materials: Harmonization With the United Nations
Recommendations, International Maritime Dangerous Goods Code, and the
International Civil Aviation Organization Technical Instructions for
the Safe Transport of Dangerous Goods by Air; Final Rule

Federal Register / Vol. 76 , No. 12 / Wednesday, January 19, 2011 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 175, 176, 178, and 180

[Docket Nos. PHMSA-2009-0126 (HM-215K)]
RIN 2137-AE45

Hazardous Materials: Harmonization With the United Nations
Recommendations, International Maritime Dangerous Goods Code, and the
International Civil Aviation Organization Technical Instructions for
the Safe Transport of Dangerous Goods by Air

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

ACTION: Final rule.

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SUMMARY: PHMSA is amending the Hazardous Materials Regulations to
maintain alignment with international standards by incorporating
various amendments, including changes to proper shipping names, hazard
classes, packing groups, special provisions, packaging authorizations,
air transport limited quantities, and vessel stowage requirements.
These revisions are necessary to harmonize the Hazardous Materials
Regulations with recent changes made to the International Maritime
Dangerous Goods Code, the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by
Air, and the United Nations Recommendations on the Transport of
Dangerous Goods--Model Regulations.

DATES: Effective date: January 19, 2011.
    Voluntary compliance date: PHMSA is authorizing voluntary
compliance beginning January 1, 2011.
    Delayed compliance date: Compliance with the amendments adopted in
this final rule is required beginning January 1, 2012.
    Incorporation by reference date: The incorporation by reference of
certain publications listed in this rule is approved by the Director of
the Federal Register as of January 19, 2011.

FOR FURTHER INFORMATION CONTACT: Michael Stevens, telephone (202) 366-
8553, or Shane Kelley, telephone<PHONE_NUMBER>, Standards and
Rulemaking Division, Pipeline and Hazardous Materials Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue, SE., 2nd Floor, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:
I. Background
II. Primary Topics of Concern Discussed in the ANPRM
III. Comments Submitted in Response to Noteworthy Harmonization
Amendments Proposed in the August 24, 2010 NPRM; the Final Rule
    A. Harmonization Amendments Adopted in This Final Rule
    B. Harmonization Amendments Not Considered for Adoption in This
Final Rule
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for the Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
    K. International Trade Analysis

I. Background

    In a final rule published under Docket HM-181 (55 FR 52402,
December 21, 1990), the Research and Special Programs Administration
(RSPA), the predecessor agency to the Pipeline and Hazardous Materials
Safety Administration (PHMSA), comprehensively revised the Hazardous
Materials Regulations (HMR; 49 CFR Parts 171 to 180) to harmonize U.S.
hazardous materials transportation requirements with the United Nations
Recommendations on the Transport of Dangerous Goods (UN Model
Regulations). The UN Model Regulations are not regulations, but rather
are recommendations issued by the UN Committee of Experts on the
Transport of Dangerous Goods (UNSCOE) and the Globally Harmonized
System of Classification and Labeling of Chemicals (GHS). These Model
Regulations are amended and updated biennially by the UNSCOE and serve
as the basis for national, regional, and international modal
regulations, including the International Maritime Organization's
International Maritime Dangerous Goods Code (IMDG Code) and
International Civil Aviation Organization's Technical Instructions for
the Safe Transport of Dangerous Goods by Air (ICAO Technical
Instructions).
    Since publication of the 1990 rule, we have issued eight additional
international harmonization rules (Dockets HM-215A (59 FR 67390,
December 29, 1994); HM-215B (62 FR 24690, December 16, 1996); HM-215C
(63 FR 57929, October 29, 1998); HM-215D (66 FR 8644, February 1,
2001); HM-215E (68 FR 1013, January 8, 2003); HM-215G (69 FR 76044,
December 20, 2004); HM-215I (71 FR 78596, December 29, 2006); and HM-
215J (74 FR 2200, January 14, 2009)) based on the corresponding
biennial updates of the UN Model Regulations, the IMDG Code, and the
ICAO Technical Instructions.
    To maintain alignment of the HMR with international requirements,
in this final rule, we are incorporating changes based on the sixteenth
revised edition of the UN Model Regulations, Amendment 35-10 to the
IMDG Code, and the 2011-2012 ICAO TI, which becomes effective January
1, 2011 (the IMDG Code is effective January 1, 2012).
    Federal law and policy strongly favor the harmonization of domestic
and international standards for hazardous materials transportation. The
Federal hazardous materials transportation law (Federal hazmat law; 49
U.S.C. 5101 et seq.) permits PHMSA to depart from international
standards in order to promote safety or other overriding public
interest, but otherwise requires PHMSA to align the HMR with
international transport standards and requirements to the extent
practicable (see 49 U.S.C. 5120). Harmonization enhances international
trade by minimizing the costs and other burdens of complying with
multiple or inconsistent safety requirements for transportation of
hazardous materials to and from the United States. This becomes
increasingly important as the volume of international hazardous
materials shipments grows. Harmonization also enhances safety for
international movements, but only if the international standards
themselves provide an appropriate level of safety. PHMSA actively
participates in the development of international standards for the
transportation of hazardous materials, frequently advocating the
adoption in international standards of particular HMR requirements.
    When considering the adoption of international standards under the
HMR, we review and evaluate each amendment on its own merit, on the
basis of its overall impact on transportation safety, and the economic
implications associated with its adoption into the HMR. Our goal is to
harmonize without diminishing the level of safety currently provided by
the HMR and not impose undue burdens on the regulated public.

II. Primary Topics of Concern Discussed in the ANPRM

    PHMSA published an advance notice of proposed rulemaking (ANPRM)
(74

FR 53982, October 21, 2009) highlighting issues under consideration for
harmonization with international standards and requesting comments as
to whether the HMR should be amended to incorporate specific
international standards and the potential benefits and costs of doing
so.
    Comments on specific harmonization issues covered in the ANPRM are
discussed in brief below. Please review the notice of proposed
rulemaking (NPRM) (75 FR 52070, August 24, 2010) for a complete
discussion of comments to the ANPRM.

A. Limited Quantities and Consumer Commodities

    PHMSA has long recognized the need to authorize limited exceptions
for the transportation of classes and quantities of hazardous materials
described as limited quantities, or consumer commodities reclassed as
ORM-D. Considerable efforts have been made internationally to harmonize
multi-modal standards with regard to the transport of limited
quantities, including consumer commodities. PHMSA held public meetings
on this issue in February 2006 and March 2008 to discuss potential
impacts on domestic stakeholders. Additionally, this issue was
discussed during the agency's pre-UN public meetings held in 2006 and
2007. There was considerable domestic interest in pursuing further
harmonization internationally due to the potential for substantial
savings in transportation costs and improved transportation efficiency.
In the ANPRM (74 FR 53982, October 21, 2009), PHMSA invited comments on
this issue with regard to aligning the HMR with the UN Model
Regulations for the domestic and international transport of limited
quantities and consumer commodities. Of particular concern was any
potential negative impact on domestic transportation through the
elimination of the transportation mechanism for limited quantity
hazardous materials reclassed as ORM-D. While some changes adopted in
the UN Model Regulations are similar to provisions currently in the HMR
(e.g., inner packaging limits and authorized use of non-specification
outer packagings), some changes are not (e.g., marking and labeling).
In the ANPRM, PHMSA suggested that, depending on comments received and
our own evaluation, the agency may determine that the significance of
any amendments on this issue may warrant a separate rulemaking action.
    We received several comments submitted in response to the ANPRM
supporting adoption of the UN Model Regulation limited quantity
provisions into the HMR. The commenters urged PHMSA to move forward and
adopt the limited quantity provisions as prescribed in the sixteenth
revised edition of the UN Model Regulations. However, several
commenters expressed concern that this should not be done at the
expense of the ORM-D provisions currently in the HMR. Some altogether
opposed the elimination of the existing provisions for ORM-D materials
as part of HM-215K and recommended that any changes to the requirements
be made through a separate rulemaking.
    In the NPRM (75 FR 52070, August 24, 2010), PHMSA outlined its
determination, partially based on our perception of favorable comments
received in response to the ANPRM, that aligning the existing limited
quantity provisions in the HMR with the international standards and
regulations (i.e., UN Model Regulations, IMDG Code and the ICAO TI)
would enhance safety by facilitating a single, uniform system of
transporting limited quantity materials. We emphasized the proposals
did not include the immediate or short-term removal of the existing
provisions in the HMR for limited quantities reclassed as ORM-D
(including those for consumer commodities, cartridges, small arms and
cartridges, power device) and included a delayed compliance period we
believed was sufficient in length to allow stakeholders time to comply
with the transition to the revised limited quantity requirements and
eventual elimination of the ORM-D classification. Because the limited
quantity provisions in the UN Model Regulations and the IMDG Code are
closely aligned with those already contained in the HMR, we contended
that domestic alignment for highway, rail and vessel transportation
would result in minimal impact and regulatory burden. And, because of
the inherent risk unique to air transportation, we believed full
harmonization with the ICAO TI (where appropriate) was necessary with
regard to the materials authorized and quantity limits for limited
quantities (including consumer commodities) intended for transport by
air.

B. Classification of Division 1.4S Explosives

    For eight Division 1.4 explosive articles (UN0323, UN0366, UN0441,
UN0445, UN0455, UN0456, UN0460, and UN0500), the UN Model Regulations
have been amended to require a Type 6(d) test to determine whether such
articles may be assigned to Compatibility Group S. Assignment to
Compatibility Group S indicates that hazardous effects from accidental
functioning are limited to the extent the article or substance does not
significantly hinder or prohibit fire fighting or emergency response
efforts in the immediate vicinity of a package containing the material.
The test is designed to be performed on a single package containing an
explosive article or explosive substance to determine if the package is
capable of containing any hazardous effects in the event of an
accidental functioning of its contents. The amendment is supplemented
by revisions to the explosives testing standards in the UN Manual of
Tests and Criteria as well as the adoption of a new special provision
that would authorize the use of the above mentioned identification
numbers only if the results of the Type 6(d) test successfully
demonstrate that any hazardous effects are confined within a package.
In the ANPRM, we invited commenters to provide data and information
concerning the possible safety impacts of the new test provisions and
compliance costs that would be incurred if the new test were adopted
into the HMR. In addition, we invited commenters to provide suggestions
or recommendations concerning whether to apply the test to already-
approved explosives.
    We received several comments both supporting and opposing adoption
of the Type 6(d) test to determine whether a Division 1.4 explosive
article may be assigned to Compatibility Group S. All the commenters
who addressed this issue indicated that, if adopted, the test must be
applied to previously-approved articles in a manner that is reasonable
and not overly broad. One suggestion was to allow the classification of
previously-approved explosive articles to be based on results of
testing of product groups by a PHMSA-approved laboratory or on results
of self-testing and video documentation by the manufacturer.
    Commenters opposing adoption of the Type 6(d) test suggested that
more research on the practical effect of this testing requirement is
necessary and that the lack of grandfathering criteria for products
already approved as Division 1.4S explosives (e.g., power device
cartridges) is impractical, expensive, and impedes commerce. They also
indicated concern regarding the cost of articles consumed in testing in
addition to the cost of pre-testing or redesign of an article by a
manufacturer to ensure passing the Type 6(d) test, but did not quantify
these costs.

C. Classification of Sour Crude Oil

    Currently, all types of petroleum crude oil are listed as a Class 3
flammable liquid in the Sec.  172.101 Hazardous Materials Table (HMT).
PHMSA is aware that transportation of a certain type of crude oil known
as ``sour'' crude oil may pose risks not associated with other types of
crude oil due to its inherent potential of evolving hydrogen sulfide, a
highly toxic and flammable gas. Sour crude oil, commonly found in North
America, contains a high concentration of sulfur. The evolution of
hydrogen sulfide vapors from crude oil is dependent on temperature,
packaging confinement, transport conditions (e.g., sloshing), bacteria,
and sulfur concentration, among many other potential factors. When
transported in bulk packagings such as cargo tanks or tank cars, the
evolved hydrogen sulfide gas may build up in the vapor space of the
packaging, posing a potential risk, particularly during loading and
unloading.
    Based on the risk of toxic vapors, the UN Model Regulations were
amended by assigning a new identification number and shipping
description for sour crude oil with a flammable primary hazard and a
toxic subsidiary hazard. Additionally, a new special provision was
added specifying the assignment of a Packing Group (PG) based on the
degree of danger presented by either the flammability or toxicity
hazard of the sour crude oil. For example, sour crude oil meeting
flammability criteria for Class 3, PG II, and toxicity criteria for
Division 6.1, PG I, poisonous-by-inhalation, would be classified as a
Class 3, PG I material.
    In the ANPRM, PHMSA invited commenters to provide data and
information concerning the impact on domestic shippers and carriers if
these requirements were adopted in the HMR. The agency also asked for
comments addressing which hazard communication methods (e.g., package
markings, shipping papers) and/or packaging requirements are most cost-
effective for communicating the hazards and reducing the risks of
transporting sour crude oil.
    We received comments opposing adoption of the UN amendments for the
description and classification of sour crude oil into the HMR. The
commenters recommended against requiring domestic use of the new proper
shipping name for sour crude oil with a Division 6.1 subsidiary risk
and recommended that use be limited to international transport.
Commenters further recommended that PHMSA should require drivers
engaged in the loading and unloading of sour crude oil to wear a
hydrogen sulfide monitoring device and have respiratory protection
accessible, and require warning signs at the cargo tank manhole and
area of operation. Additionally, commenters recognized that hydrogen
sulfide gas is a hazard, but suggested that classification of crude oil
at the time of shipment may not reflect the toxicity of hydrogen
sulfide in the vapor space of a cargo tank or other packaging after the
crude oil has been in transportation. They also noted that there are
best industry practices already in place that address this issue and
that the Occupational Safety and Health Administration (OSHA) has
requirements in place to communicate the hazards of hydrogen sulfide in
the workplace. They supported other means of hazard communication to
ensure that workers are aware of the hazards of hydrogen sulfide such
as a marking on a bulk packaging.

D. IBC Rebottling

    Under both the UN Model Regulations and the HMR, replacement of the
rigid plastic receptacle of a composite IBC is considered a ``repair''
under certain conditions and, thus not subject to design qualification
testing as a new or different design. The UN Model Regulations were
amended to specify that a replacement bottle (i.e., rigid plastic
receptacle) must be of the original tested design type and limits the
replacement to a bottle from the original manufacturer. In the ANPRM,
we invited comments on this amendment and how, if adopted into the HMR,
it would impact the use of IBCs in domestic or international commerce.
    All commenters who addressed this issue supported the adoption of
the UN Model Regulations definition of ``repair'' for IBC rebottling
purposes. The comments included a request for an extended compliance
date of January 1, 2012 to provide users and manufacturers of composite
IBCs adequate time to implement the provision and not place them at an
economic disadvantage with international counterparts.

E. Metal Hydride Storage Systems in Conveyances

    A metal hydride storage system is a single complete hydrogen
storage system that includes a receptacle, metal hydride, a pressure
relief device, a shut-off valve, service equipment, and internal
components. The HMR currently do not prescribe specific packaging or
shipping methods for metal hydride storage systems containing hydrogen.
However, PHMSA has issued a number of special permits to allow the use
of these systems for transport. The UN Model Regulations, in new
Packing Instruction P205, prescribe standards for the construction,
qualification, marking and requalification of such systems. In the
ANPRM, PHMSA invited comments on whether similar standards should be
adopted into the HMR. One commenter supported adoption of the standards
for the construction, qualification, marking, and requalification of
metal hydride storage systems containing hydrogen.

F. In Vitro Testing for Corrosivity

    In 1993, RSPA began recognizing an alternative test method (i.e.,
in vitro testing commercially available as Corrositex[reg]), which is
not carried out in live animals, to determine the corrosivity of a
hazardous material for transportation purposes under the terms and
conditions specified in a special permit (DOT-SP 10904). Similar in
vitro test methods are prescribed in the following Organization for
Economic Cooperation and Development (OECD) Guidelines for the Testing
of Chemicals and were adopted in the UN Model Regulations:
     No. 430, ``In Vitro Skin Corrosion: Transcutaneous
Electrical Resistance Test (TER)'' (2004);
     No. 431, ``In Vitro Skin Corrosion: Human Skin Model
Test'' (2004); and,
     No. 435, ``In Vitro Membrane Barrier Test Method for Skin
Corrosion'' (2006).
    Because methods 430 and 431 can be used to determine corrosivity
for other than transportation purposes, they cannot be used to
determine the Packing Group (PG) assignment of a material that tests
positive for corrosivity for the purposes of hazardous materials
transportation. A negative result for corrosivity under methods 430 and
431 can, however, preclude further testing to determine PG assignment
using method 404, the current OECD Guideline involving in vivo testing
or method 435, the newly adopted OECD Guideline involving in vitro
testing.
    All commenters responding to the ANPRM supported adoption and use
of the OECD in vitro test methods for determining corrosivity on the
basis of reducing the number of tests requiring live animals.

III. Comments Submitted in Response to Noteworthy Harmonization
Amendments Proposed in the August 24, 2010 NPRM; the Final Rule

    In our latest harmonization effort, we received over 2,200 comments
in response to the NPRM (75 FR 52070, August 24, 2010). The majority of
the

comments received were from individuals in support of adoption of
corrosivity testing methods not based on the results of live animal
testing. The following individuals, companies, and organizations
submitted comments to the NPRM (in chronological order of submittal).
We note, however, that in lieu of listing each individual commenting,
we have listed PETA as a proxy for all comments received supporting
adoption of corrosivity testing methods alternative to live animal
testing:

(1) R.R. Street & Co. (Street);
(2) Infotrac;
(3) Vanguard Logistics Services (VLS);
(4) Zebrowski, Department of Energy (DOE);
(5) 3M;
(6) The Japan Electrical Manufacturer's Association (JEMA);
(7) Andersen Products (Andersen);
(8) FedEx Express (FedEx);
(9) Saft America, Inc. (Saft);
(10) People for the Ethical Treatment of Animals (PETA);
(11) Toshiba America Electronic Components, Inc. (TAEC);
(12) Association of Hazmat Shippers, Inc. (AHS);
(13) National Nuclear Security Administration Service Center, DOE
(NNSA);
(14) Sporting Arms and Ammunition Manufacturer's Institute (SAAMI);
(15) Baker Hughes (Baker);
(16) Signa Chemistry, Inc. (Signa);
(17) Institute of Maker's of Explosives (IME);
(18) United Parcel Service (UPS);
(19) Titan Specialties, Ltd. (Titan);
(20) Human Focused Testing;
(21) American Veterinary Medical Association (AVMA);
(22) Valspar;
(23) Utility Solid Waste Activities Group (USWAG);
(24) Trulite, Inc. (Trulite);
(25) The Rechargeable Battery Association (PRBA);
(26) American Petroleum Institute (API);
(27) American Coatings Association, Inc. (ACA);
(28) BIC Corporation (BIC);
(29) American Trucking Associations (ATA);
(30) Council on Safe Transportation of Hazardous Articles, Inc.
(COSTHA);
(31) Healthcare Distribution Management Association (HDMA);
(32) Aviation Suppliers Association (ASA);
(33) Modification and Replacement Parts Association (MARPA);
(34) International Vessel Operators Dangerous Goods Association
(IVODGA);
(35) TravelScoot, USA (Scoot);
(36) Dangerous Goods Advisory Council (DGAC);
(37) Lilliputian Systems, Inc. (LSI);
(38) Department of Defense Explosives Safety Board (ESB);
(39) Ensign-Bickford Aerospace & Defense (EBAD)
(40) Safety Specialists, Inc. (SSI);
(41) Owen Compliance Services, Inc. (OCS);
(42) Potomac Strategy Associates (PSA);
(43) Arkema, Inc. (Arkema);
(44) Association of American Railroads (AAR);
(45) Air Line Pilots Association (ALPA);
(46) US Fuel Cell Council (USFCC);
(47) International Air Transport Association (IATA);
(48) Alaska Airlines (AA);
(49) PPG Industries, Inc. (PPG); and
(50) Edgcomb Law Group (ELG).

A. Harmonization Amendments Adopted in This Final Rule

    In this final rule, PHMSA is adopting the following amendments to
harmonize the HMR with the most recent revisions to the UN Model
Regulations, ICAO Technical Instructions, and the IMDG Code:
1. Petitions for Rulemaking
    We are addressing one petition for rulemaking, P-1550, from PETA
requesting that PHMSA incorporate by reference OECD Guidelines 430, 431
and 435 into the HMR that prescribe in vitro testing methods for
determining corrosivity.
2. Hazardous Materials Table (HMT)
    Amendments to the HMT to add, revise, or remove certain proper
shipping names, hazard classes, packing groups, special provisions,
packaging authorizations, bulk packaging requirements, passenger and
cargo aircraft maximum quantity limitations, and vessel stowage
provisions.
3. Organic Peroxide Tables
    Amendments to the Organic Peroxide Tables to add, revise, or remove
certain hazardous materials and provisions.
4. Incorporation by Reference
    Amendments to incorporate by reference the 2011-2012 ICAO Technical
Instructions, Amendment 35-10 to the IMDG Code, sixteenth revised
edition of the UN Model Regulations and the fifth revised edition of
the UN Manual of Tests and Criteria. Additionally, we are updating our
incorporation by reference of the Canadian Transportation of Dangerous
Goods Regulations to include Amendment 6 (SOR/2008-34) February 7, 2008
(pertains to miscellaneous amendments); and Amendment 7 (SOR/2007-179)
August 22, 2007 (pertains to highway cargo tanks). This incorporation
by reference augments the broad reciprocity provided in Sec.  171.12
where the HMR allow the use of the Canadian TDG Regulations under
certain conditions when transporting hazardous materials to or from
Canada by highway or rail.
5. Limited Quantities
    We received a number of comments in response to the limited
quantity and ORM-D classification amendments proposed in the August
2010 NPRM. Commenters can basically be categorized into two groups:
Those supporting harmonization with the international standards and
regulations for limited quantities and those in opposition to the
eventual elimination of the ORM-D classification. The remainder of the
commenters offered suggestions or revisions to clarify or aid
understanding of the proposed amendments.
    Those commenters generally supporting harmonization of the limited
quantity provisions include:

Alaska Airlines;
American Coatings Association;
American Trucking Associations;
Association of Hazmat Shipper, Inc.;
Council on Safe Transportation of Hazardous Articles, Inc.;
Dangerous Goods Advisory Council;
FedEx Express;
International Vessel Operators Dangerous Goods Association;
PPG Industries, Inc.;
Sporting Arms and Ammunition Manufacturers Institute, Inc.; and
United Parcel Service.

Those commenters opposing the eventual elimination of the ORM-D hazard
classification include:

American Coatings Association;
Aviation Suppliers Association;
Healthcare Distribution Management Association;
Modification and Replacement Parts Association;
PPG Industries, Inc.;
Safety Specialists, Inc.;
Utility Solid Waste Activities Group; and
Valspar.

    Due to the large number of commenters and the variety of comments
provided, we outline pertinent topic areas to better address all the
comments. The comments are discussed and addressed as follows:
    a. Air-specific requirements. In the NPRM, we proposed to revise
Sec.  173.27 to add a new table outlining air transport requirements
for limited quantity material including package quantity limits
consistent with the ICAO Technical Instructions. The proposed quantity
limits for air transport differ from the quantity limits for other
modes, which was a point of contention for some commenters. Three
commenters (ACA, DGAC, SSI) disagreed with the adoption of the proposed
package limits in the table and one commenter (COSTHA) expressed
concern that the table is too broad. ACA asserted:

    Introducing these limits will only frustrate domestic
transportation and introduce unnecessary complexity into a fairly
simple process. In the coatings industry, air shipments are not the
norm and are only used when there is some urgency or the destination
is a remote location. Requiring different inner and outer packaging
quantity limits for air will eliminate the efficiency of a ``one
size fits all LQ shipments'' process.

    SSI added:

    Some materials that were ORM-D may not be eligible to be shipped
as limited quantity. Most inner packagings have been severely
reduced. Isopropanol UN1219 (rubbing alcohol) can be presently
shipped in inner containers up to 1 liter. Under the new Table 3 the
inner container is reduced to 500 milliliter. This product is
normally sold in pints, quarts, and gallons. Quarts would not be
eligible for limited quantity air shipments. This will require
shippers to ship in UN standard packaging, apply hazard class labels
and meet all other requirements for fully regulated shipments.

    We understand that more inner packagings may be required of a
material authorized to be shipped as a limited quantity by air. SSI
used Isopropanol as an example in their comments where the inner
packaging quantity limits are reduced from 1 liter to 500 milliliters
for a Packing Group II Class 3 (flammable liquid) when the current
limits of the HMR are compared with the ICAO Technical Instructions.
SSI also stated that the product is sold in pints, quarts and gallons.
Currently under the HMR, the gallon is ineligible as a limited
quantity. Under the amendment proposed in the NPRM, the gallon and
quart would be ineligible for air transport as a limited quantity.
However, because the outer packaging quantity limit is 1 liter for a
Packing Group II Class 3 (flammable liquid), SSI would just have to
substitute 2 one-pint inner packagings for a one-quart container of
product in the same package.
    DGAC reasoned:

    The HMR limited quantity provisions predate ICAO TI limited
quantity provisions. When limited quantity provisions were
introduced in the ICAO TI * * * on the basis of existing U.S.
limited quantity provisions, additional limitations were included *
* * RSPA and PHMSA have, up until now, not deemed it necessary to
incorporate these limitations in the HMR. The long intervening
period between when the limits were first introduced in the ICAO TI
and the present suggests that it is unnecessary to adopt these
limits for the sake of harmonization. Further, [we are] unaware of
any new safety information that would justify introducing these
limits at this time.

    DGAC further argued:

    Introducing these limits will serve to frustrate domestic
transportation. A key objective of * * * PHMSA has been to provide
multimodal harmonization * * * so that the same package will
essentially be suitable by all modes of transportation. This is
currently true for limited quantity packages * * * By introducing
new limits, as shown in the table referenced by proposed Sec.
173.27(f), limited quantity packages prepared for ground or sea
transport may not necessarily be suitable for air transport. Most
shippers commonly transport * * * limited quantity packages by modes
other than air. Currently, with limited quantity package
requirements for all modes closely aligned, transporting a limited
quantity package is relatively straightforward. If the limitations
on inner and outer package quantity limits and new performance
requirements are introduced * * * it may be necessary to repackage
ground/sea limited quantity packages for purposes of air transport.
[We] are unaware of any safety concerns that would justify the
imposition of these new limitations.

    Major differences already exist under the HMR for the air transport
of limited quantities as compared to other modes. For example, limited
quantity and consumer commodity inner packagings containing liquids are
subject to the pressure differential capability requirements in Sec.
173.27(c).
    COSTHA explained further confusion:

    It is important for shippers to use the Sec.  172.101 Table to
determine eligibility for a limited quantity * * * However, if one
uses only Table 3, the shipper may inappropriately determine that a
material is eligible for shipment as a limited quantity. For
example, [c]hlorosilanes are not permitted to be packaged in
accordance with limited quantity provisions * * * however, [certain
classes of PG II materials] (many chlorosilanes fall into these
classes) are identified as having acceptable limits * * * according
to the Sec.  173.27 Table 3. Given that limited quantities is a
source of confusion for many shippers and carriers, this table does
less to clarify a point and more to confuse the reader.

    Section 173.27(f) clearly states that, for transportation by
aircraft, materials packaged as limited quantities must be eligible for
transportation aboard a passenger-carrying aircraft. In this final
rule, we are adding additional clarification in Sec.  173.27(f) to
emphasize this critical step in determining limited quantity
eligibility by also referring the reader to Column (9A) of the HMT. As
stated in the NPRM, PHMSA is studying the feasibility of revising the
HMT to further assist in determining limited quantity eligibility by
air or possibly by all modes of transportation.
    Two commenters (ASA, MARPA) were critical of the nature of proposed
regulatory changes without an apparent safety need, specifically with
regard to the limited quantity marking for air transport consistent
with the ICAO Technical Instructions. The commenters argued that the
constant changes make compliance with the regulations difficult. ASA
and MARPA stated:

    The 2009-2010 [ICAO TI] authorized * * * the UN identification
number in a diamond shape [as] the mandatory way to mark limited
quantity packages starting in 2011 * * * Beginning in 2011, ICAO has
abandoned the marking protocols announced in 2009, and established a
new, different identification protocol for identifying limited
quantities * * * Instead of placing the UN identification number in
the diamond shape, shippers will be required to place a ``Y'' in the
diamond shape * * * There appears to be no reason other than mere
harmonization for the sake of harmonization for adopting the ICAO
limited quantity marking. [The] marking provides no additional value
* * * because many people in the United States system will have no
idea what the ``Y'' marking means * * * Although ``Y'' is the letter
that precedes limited quantity packing instructions in the ICAO
system, the letter ``Y'' has no special meaning in the existing
United States Regulations.

    b. Dual marking system. Support for harmonization efforts including
the adoption of the square-on-point limited quantity marking (i.e., the
square-on-point with top and bottom portions black and the center
white) generally coincided with support for the eventual elimination of
the ORM-D classification along with the ORM-D marking. The basis for
support was that this would eliminate a dual system of marking packages
for domestic and international transportation. With regard to
elimination of a dual marking system, some commenters (AA, FedEx,
IVOGDA) indicated that a dual system of marking creates confusion and
requires carriers and shippers to adjust their training programs to
account for this dual system. They therefore recommend PHMSA consider
an earlier implementation date than the proposed January 1, 2013 date.
AA added:

    We encounter almost every day reused boxes in the U.S. mail,
passenger baggage, or cargo shipments that have old ORM-D marks.
This takes considerable time to inspect and causes frustration to
the public when non-hazardous shipments are denied transportation
because of a marking they do not understand as an indication of
hazardous materials.

    PHMSA notes that adoption of a new limited quantity marking(s) may
not necessarily alleviate or eliminate use of packaging premarked with
the limited quantity square-on-point for non-hazardous materials.
    Notwithstanding the general comments regarding dual marking,
several commenters offered suggestions or revisions to improve or
clarify the proposed requirements. As part of the NPRM, we authorized
voluntary use of

the limited quantity marking. UPS urged PHMSA to delay voluntary use to
allow carriers time to develop appropriate training in response to a
final rule, stating that:

    In [our] experience, this kind of authorization * * * can lead
to practical difficulties which in turn could have compliance and
safety implications * * * Training in UPS will be needed to educate
U.S. package handlers of the meaning of the limited quantity
marking.

    Additionally, on the basis of their opposition to adoption of the
air transport requirements for limited quantities consistent with the
ICAO TI, DGAC recommended that:

    The ``Y'' package mark [proposed] in Sec.  172.315 not be
required * * * [and] recommend that [PHMSA] allow permissive use of
the ``Y'' mark for all modes of transport when the package meets the
relevant requirements of the ICAO TI.

    We agree with the DGAC recommendation that a ``Y'' marked package
in full conformance with the air transport requirements for a limited
quantity package should be authorized transportation by all modes and
are revising Sec.  171.22 accordingly. However, we do not agree with
their suggestion that the limited quantity ``Y'' mark be voluntary.
There are currently two different ways to mark a package of limited
quantities in the HMR and a third (four if counting packaged ORM-D-AIR
materials) would be very disruptive. Therefore, in this final rule,
PHMSA is adopting the ``Y'' mark as proposed and providing a transition
period to allow for the continued use of existing markings until
January 1, 2012.
    c. Elimination of the ORM-D class. Most commenters opposing the
elimination of the ORM-D classification recommend using a separate
rulemaking to implement this proposal. Some question whether the costs
of eliminating this classification have been fully considered; others
question whether there is sufficient safety justification to warrant
replacing the current domestic ORM-D provisions with internationally
harmonized provisions. A sampling of comments received follows. ACA
argued:

    Although [we] supported harmonization of the limited quantities
exceptions at the UN discussions, [there was an] understanding that
the consumer commodity exception was a separate issue * * * In the
coatings and adhesives industry, we are unaware of any major
incidents with consumer commodity shipments. While PHMSA indicates
that ``aligning the existing limited quantity provisions in the HMR
with the international standards will substantially enhance
safety,'' we question how this applies to the proposal to eliminate
ORM-D consumer commodities.

    Valspar asserted:

    We believe PHMSA has overreached the HM-215 harmonization
process by proposing * * * to eliminate the well-defined ORM-D
(Consumer Commodity) hazard class. We believe any proposal * * *
should not be linked to the international harmonization program. In
several industry/regulatory conferences it has been proposed that
Limited Quantity and Consumer Commodity are synonymous. We do not
agree with this premise and strive to ensure that our ``Consumer
Commodities'' meet the spirit and HMR definition of ``* * * intended
or suitable for sale through retail sales agencies or
instrumentalities for consumption by individuals for purposes of
personal care or household use.'' [We ship] many items under Limited
Quantity provisions that we do not believe meet the ``suitability''
test and assert there is an important distinction between the two.
We applaud PHMSA for clearly defining the pathway to ORM-D through
Limited Quantity and Special Provision options and can only imagine
whether this can be misused through other less clear regulation * *
* We challenge PHMSA to revisit the assertion to Executive Order
12866 cited in the HM-215K NPRM that only considers the listed
harmonization to be beneficial, with no acknowledgement of the
financial cost to ORM-D shippers.

    DGAC expressed concern that:

    Eliminating the ORM-D classification and package marking [will
make it] that such packages will no longer be excepted from the
Sec.  175.75 requirements for air transport. No similar requirement
applies under the ICAO TI so * * * this change cannot be justified
on the basis of harmonization * * * [We believe] PHMSA considers
limited quantity packages and currently classified ORM-D packages as
posing comparable hazard[s]. Consistent with that approach, we
recommend that PHMSA similarly except all limited quantity packages
from the Sec.  175.75 requirements.

    We agree with DGAC regarding Sec.  175.75 quantity limits for
limited quantity packages and are revising the section accordingly.
Limited quantity shipments will enjoy the same exception from the Sec.
175.75 quantity limits as ORM-D-AIR materials currently receive.
    USWAG stated:

    We believe elimination of the ORM-D standards for transportation
* * * will disrupt longstanding shipping practices while failing to
provide commensurate safety benefits.

    The commenter also expressed concern for downstream shippers who
have received ORM-D packages but can no longer transport this package
beginning on the January 1, 2014 proposed compliance date. USWAG
encouraged PHMSA to implement a phased-in approach that would authorize
downstream shippers (that do not repackage these materials) to use ORM-
D provisions for an additional period of time.
    One commenter (HDMA) provided information that the proposal as
written would impose significant cost on the domestic transport of
medicines and other healthcare or consumer products. HDMA members
concluded that compliance with the regulations would require
replacement of more than 10 million plastic totes embossed with the
ORM-D marking, costing members an estimated $70 million to purchase new
totes with the new limited quantity marking. HDMA is prepared to phase
out the use of totes with the ORM-D marking but believes this should be
done over an extended period of time to enable existing totes embossed
with the marking to be used over their lifetime. HDMA stated:

    PHMSA may not have recognized that some industries rely on
containers that are embossed with the transport mark and hence
conversion to a new mark is considerably more complicated than
simply changing a label.

    Just as PHMSA has done in the past, if there is merit to a
particular segment of the regulated community requiring a longer
transition period to be considered, it shall be observed on a case-by-
case basis. In their comments, HDMA did not indicate what a ``normal''
lifetime would be. In their defense, however, they provided comments
that were quantified and directly related to their concerns about the
regulatory and economic burden placed upon their particular industry.
    Finally, several commenters (e.g., COSTHA, FedEx) noted concern
over use of the ORM-D mark after the transition period ends (i.e.,
beginning January 1, 2014). The commenters recommend that PHMSA clarify
that at the end of the transition period, a package marked with the
ORM-D mark will no longer indicate that a packaging contains a
hazardous material (i.e., a consumer commodity).
    d. Conclusion. In the August 2010 NPRM, PHMSA outlined our
determination, partially based on our perception of favorable comments
received in response to the ANPRM, that aligning the existing limited
quantity provisions in the HMR with the international standards and
regulations (i.e., UN Model Regulations, IMDG Code and the ICAO TI)
would enhance safety by facilitating a single, uniform system of
transporting limited quantity materials. We emphasized the proposals
did not include the immediate or short-term removal of the existing
provisions in the HMR for limited quantities reclassed as ORM-D
(including those

for consumer commodities, cartridges, small arms and cartridges, power
device) and included a delayed compliance period we believed was
sufficient in length to allow stakeholders time to comply with the
transition to the revised limited quantity requirements and eventual
elimination of the ORM-D classification.
    Based on careful consideration of the comments received in response
to the proposals made in the NPRM, PHMSA is moving forward with a
substantially revised final rule that adopts the new limited quantity
provisions and the eventual phase-out of the ORM-D hazard class. This
will implement a standardized system for national and international
multimodal transportation. The approach of deminimis quantities,
excepted quantities, limited quantities and consumer commodities will
all have the same provisions and requirements for international and
national transportation in a system that will promote compliance,
efficiency and consistent training and lower costs after
implementation.
6. Classification of Certain Division 1.4S Explosives
    In the August 24, 2010 NPRM, PHMSA stated it understood commenter
concerns that prescribing additional tests usually results in increased
research and development costs. PHMSA also acknowledged that it
believed there was merit to additional prescribed tests when they
result in a credible and measureable increase in safety. Consequently,
in the NPRM we proposed to require the phased-in testing of all new and
previously approved Division 1.4S explosives articles and substances,
depending on the intended mode of transport. For newly produced
explosive articles, a person who successfully performs the Type 6(d)
test would not be required to also perform the Type 6(a) test. PHMSA
believes such initiatives will greatly reduce research and development
costs without compromising safety.
    In the NPRM, PHMSA proposed to adopt the requirement for the Type
6(d) test as prescribed in Section 16.7 of the fifth revised edition of
the UN Manual of Tests and Criteria in the new Sec.  172.102(c)(1),
special provision 347. For affected articles (or substances) intended
for transportation by aircraft, the proposed compliance date of this
new requirement was April 1, 2011. If a manufacturer or approval holder
of affected articles that previously classed and approved an article as
Division 1.4S chooses to continue offering such shipments by aircraft,
we proposed the articles must be successfully tested under Test Series
6(d) and a new approval be obtained from PHMSA. Additionally, we
proposed that a previously classed and approved Division 1.4S article
that is not successfully tested under Test Series 6(d) must be assigned
to a compatibility group other than ``S'' (e.g., B, C, or D) prior to
the April 1, 2011 compliance date if intended for transportation by
aircraft on or after that date. PHMSA also proposed that the effective
date of testing to maintain Division 1.4S classification or
reassignment to a higher compatibility group other than ``S'' be no
later than January 1, 2014 for Division 1.4S articles approved prior to
January 1, 2012 and are intended for domestic highway or rail
transportation. For previously-approved affected articles transported
by highway, rail and vessel, reassignment to a compatibility group
other than ``S'' may be accomplished by using existing data and, when
recommended by an authorized examination and testing agency, approved
by PHMSA. For international highway, rail and vessel transportation,
the effective date of Type 6(d) testing requirements or reassignment
for new and previously produced affected articles would be January 1,
2012 (i.e., the compliance date of a final rule under this docket, if
adopted as proposed).
    A number of commenters (Baker, EBAD, ESD, IME, Infotrac, NNSA, OCS,
SAAMI, and Titan) addressed our proposal to adopt the Type 6(d) test
and associated requirements. Several commenters expressed support for
comments submitted by IME and requested that PHMSA give consideration
to their comments. Thus, our response to comments will primarily be
structured based on the comments IME submitted.
    a. Compliance dates (i) Air transport. IME expressed concern that
the proposed compliance date for Type 6(d) testing to determine
Division 1.4S classification for materials to be transported by air
precedes the compliance date for the rulemaking in general. IME stated:

    The ``compliance date of a final rule under this docket'' will
be January 1, 2012. Simultaneously, however, the proposal
establishes a compliance date for transportation by aircraft of
April 1, 2011. Accordingly, the compliance date for an individual
mode regulated under the rule would precede the compliance date for
the rule itself, rendering the April 1, 2011 compliance date both
unreasonable and unenforceable.

    We disagree. As general policy, PHMSA implements a one-year
transition period for international harmonization rulemakings. Thus, we
typically publish a rulemaking under the HM-215 docket to be effective
January 1 of a given year (to coincide with international effective
dates) and require compliance one year later to afford stakeholders the
opportunity to prepare for compliance. PHMSA is not bound to the one
year transition period and has discretion to institute an earlier
compliance date when circumstances warrant. The implementation of this
requirement was viewed to be significant by the ICAO Dangerous Goods
Panel and an emergency addendum was requested from the Air Navigation
Commission. Preventing the transportation of an explosive article with
the ability to exit its packaging that could result in collateral
damage on a passenger aircraft was determined to be an immediate safety
concern and was implemented on very short notice for international air
transportation. Therefore, because of concern for the safety in
transport of these articles by air and to affect a transition for
international air transport with minimal disharmony in compliance dates
(the Type 6(d) test is required under ICAO Technical Instructions as of
January 1, 2011), we proposed to implement the April 1, 2011,
compliance date for Type 6(d) testing for transport by aircraft.
    IME also expressed concern that the proposed compliance date of
April 1, 2011 for air transport is unattainable. IME stated further:

    [T]hat PHMSA's internal policy establishes a 120-day review
period for processing approvals * * *. [W]e have determined that in
order to meet the April 1, 2011 compliance deadline for air
transportation, approval applicants planning to continue shipping by
air would have to ensure that all required testing is completed and
the results submitted to PHMSA by December 2, 2010. The required
testing must be performed or witnessed by ``an authorized
examination and testing agency approved by PHMSA.'' On average, the
lead time required to schedule testing with a PHMSA-approved
laboratory is six weeks. An additional two weeks would then be
required for testing the laboratory to perform the required tests
and generate a report * * *. Accordingly, applicants intending to
meet the April 1, 2011 deadline would have [had to] finalize
arrangements with the testing laboratories by October 4, 2010--
twenty-one days prior to the close of the public comment period * *
*. Given the impossibility of timely compliance, the proposed April
1, 2011 date will function not as a compliance deadline, but as an
automatic prohibition on [of] air transport of the affected 1.4S
articles.

    PHMSA acknowledges the strict compliance timeline proposed for the
air transport of affected articles and substances. We note, however,
that the PHMSA imposed 120-day period for

processing of approvals is not a minimum time period but general
guidance for estimating the time period to review and process an
approval application dependent on multiple factors such as the
complexity of an application or errors in its submittal. The approval
process may take less than 120 days and routinely does. Additionally,
PHMSA's Approvals and Permits Division recently streamlined the
explosive approval process to accommodate an influx of approval
requests based on adoption of Type 6(d) test prescribed in this
rulemaking. Finally, shippers are not constrained to the use of
domestic laboratories approved by PHMSA but may utilize the resources
of laboratories under the umbrella of other competent authorities
(e.g., Transport Canada). However, given the strict timeline proposed
in the August 2010 NPRM, the significant number of approval
applications we expect to receive, and the potential for delays at
authorized testing laboratories attempting to accommodate the volume of
testing or reclassification requests, we are extending the compliance
date for air transport to July 1, 2011.
    (ii) Vessel transport. IME noted our failure to indicate a
compliance date for domestic vessel transportation. We agree. Our
intent was to implement a compliance date that coincides with the
effective date of the IMDG Code requirement for the Type 6(d) test
(January 1, 2012). Therefore in this final rule, we will require the
Type 6(d) test for Division 1.4S classification beginning January 1,
2012 for both domestic and international vessel transportation.
    (iii) Modal variability. IME expressed concern that the varying
compliance dates for air transport (proposed April 1, 2011),
international highway, rail, and vessel (domestic and international)
(proposed January 1, 2012), and domestic highway and rail (proposed
January 1, 2014) will result in confusion and unintentional
noncompliance with specific regard to downstream customers. IME
reasoned:

    The customer has no way of knowing that the manufacturer ships
only domestically [by highway] and has not, therefore, reclassified
the product to meet the earlier compliance date for international
transport. This leads to unintentional noncompliance by the
downstream customer * * *. We recommend that PHMSA promulgate a
single compliance date for all modes and for domestic and
international transportation.

    We disagree. Unawareness of a requirement cannot be used as a
defense for non-compliance. Downstream customers or shippers may
utilize a number of resources to determine whether an explosive article
or substance subject to the Type 6(d) test has been successfully
tested. For example, they can obtain a copy of the approval issued by
PHMSA. Additionally, it is the shipper's responsibility to properly
class and describe a material (see Sec.  173.22) and to be trained on
any applicable requirements (see Sec.  172.704) of the HMR. That said,
the Approvals and Permits Division will issue guidance to all current
approval holders for affected Division 1.4S articles and materials to
provide detailed instruction on the new requirement for Type 6(d)
testing. This will include issuing new or amended approvals indicating
whether a Type 6(d) test has been successfully conducted which can then
be used by downstream customers and shippers to aid in transport
decision-making.
    b. Testing requirements. (i) Self-testing. In response to the
ANPRM, IME recommended allowing self-testing and video documentation
for articles previously approved as Division 1.4S. IME continued to
assert that testing requirements for previously approved articles not
be overly broad and questioned why this recommendation was not
addressed even though PHMSA specifically acknowledged IME's comments in
the NPRM. IME reiterated:

    Providing manufacturers with the option to self-test is an
effective means of ensuring reasonable application of the new test.
Additionally, allowing self-testing of already approved explosives
articles will assist industry in minimizing the financial impact of
implementation of a new test on already approved, safely
transported, explosives.

    We disagree. PHMSA believes a uniform process for testing using the
Type 6(d) test to determine Division 1.4S classification is the best
approach and we do not believe incorporating variability into the
process by allowing self-testing and video-documentation for already
approved articles complements this approach. PHMSA understands the need
to facilitate any possible cost reduction regarding the application of
this new testing requirement. We also maintain, however, that in the
interest of uniform safety standards under the HMR, requiring that
testing be observed or conducted by a PHMSA-approved laboratory is the
best approach. This approach will not be codified in the HMR but rather
will be incorporated into the explosives approval process as specified
in Sec.  173.56 of the HMR.
    (ii) Clarification of NPRM preamble. Certain phrases and terms were
used in the August 2010, NPRM which have caused confusion. We would
like to clarify. Regarding the phrase ``incremental testing,'' use of
the phrase refers to the staggered compliance dates depending on the
mode of transport or domestic/international transport and does not
indicate differences in reclassification testing. We are removing any
reference to this phrase in the preamble to this final rule to avoid
further confusion. Regarding the term ``design,'' as in ``previously
approved designs,'' the term was meant to signify individual explosives
articles or substances. We are also deleting any use of this term in
the preamble to this final rule to avoid any ambiguity in the use of
the term.
    (iii) Modal difference. In response to our proposed implementation
of the new testing requirement for Division 1.4S classification, IME
objected to any varying testing criteria tied to the intended mode of
transport, stating:

    Such action is not consistent with the UN classification system;
additionally, an explosive's reaction to stimuli is not affected by
the mode of transport. PHMSA offers no rationale for excluding the
use of existing test data for the reclassification of articles
intended for air transport, and the distinction would inevitably
result in confusion and unintended noncompliance in the regulated
community.

    We agree that there should be uniform testing criteria across all
modes. We apologize for the lack of clarity in implementation of this
new testing requirement and will clarify further in the following
section (c) discussion of our implementation of the Type 6(d) test.
    (iv) Laboratory recommendation. For previously approved articles,
we proposed to allow reassignment to a compatibility group other than
``S'' using existing data and when recommended by a PHMSA-approved
laboratory. IME did not support the proposal to require a
recommendation from a PHMSA-approved laboratory where a previously
approved article is being reassigned. IME argued:

    Inability to successfully pass the new Type 6(d) test does not
invalidate the original laboratory tests and recommendation[s] that
were previously sufficient to attain 1.4S classification.
Accordingly, there is no rational basis for requiring a laboratory
recommendation to support a downgrade in classification. A
laboratory recommendation should only be required where the original
classification is not supported by laboratory testing and a
corresponding recommendation * * * [W]e are also concerned that if
the proposal is promulgated as drafted, some testing laboratories
may be reticent to issue the required recommendation solely on the
basis of existing test data, and may require new testing.

    We appreciate the concerns presented by IME. Again, we apologize
for any lack of clarity in implementing this new

provision. As indicated previously, our Approvals and Permits Division
will be issuing guidance and instruction on testing or reclassification
of previously approved Division 1.4S articles or substances. As part of
that instruction and in order to alleviate any potential problems from
laboratories being reticent to provide a recommendation based on
existing data, the Approvals and Permits Division will be providing
guidelines to laboratories for which types or batches of already
approved articles and substances should be reclassed into which type of
downgraded compatibility group.
    c. Implementation of the Type 6(d) test in the explosives approval
process. As IME accurately summarized in its comments, there are three
categories of explosive articles or substances affected by the test
requirement: (1) Previously approved Division 1.4S articles that will
pass the Type 6(d) test; (2) previously approved Division 1.4S articles
that will not pass the Type 6(d) test and therefore need to be
reassigned to a more conservative compatibility group other than ``S'';
and (3) new explosive articles for which Division 1.4S classification
must be determined through successful Type 6(d) testing. All explosive
articles affected by the Type 6(d) test requirement fit into these
three categories regardless of the mode of transport. The compliance
date for affected articles is dependent upon the intended mode of
transport and whether they are to be transported domestically or
internationally. Beginning January 1, 2012, any new explosive articles
must be successfully subjected to the Type 6(d) test to determine
whether Division 1.4S classification is appropriate. However, for a new
explosive material intended for transport by aircraft, the compliance
date for successful Type 6(d) testing is no later than July 1, 2011.
For existing approved Division 1.4S articles intended for transport by
air, successful Type 6(d) testing is also required no later than July
1, 2011; otherwise, the articles must be reassigned to another
compatibility group and a new approval issued by PHMSA prior to being
offered for transportation or transported by aircraft. Beginning
January 1, 2012, existing approved Division 1.4S articles intended for
international transport by highway, rail, or vessel and for domestic
transport by vessel, successful Type 6(d) testing is required;
otherwise, the articles must be reassigned to another compatibility
group and a new approval issued by PHMSA prior to being offered for
transportation. Finally, for existing approved Division 1.4S articles
intended for domestic transportation by highway or rail, successful
testing or compatibility group reassignment is required beginning
January 1, 2014.
    We realize the intended mode of transport may change as markets
change and evolve but staggered compliance dates we believe are
necessary in order to provide sufficient time to manufacturers,
shippers, PHMSA-approved laboratories, and our Approvals and Permits
Division to accommodate the number of approved Division 1.4S articles
that will need testing or reclassification as well as attempting to
allay some of the costs to manufacturers who only transport by domestic
highway or rail.
    d. Federal considerations. Two commenters (ESB, NNSA) within the
Department of Defense and Department of Energy, respectively, objected
to the Type 6(d) test requirement for previously approved Division 1.4S
explosive material based on cost and logistical concerns. NNSA noted:

    [M]ore significant than the added costs, are the limited testing
assets available necessary to complete testing by the prescribed
deadline in the NPRM. [We do not] recognize the need to conduct UN
Test Series 6(d) testing on all future permanent hazard
classification requests as specified in the NPRM.

    ESB added:

    [We object to] with applying the test Type 6(d) for articles
previously classified. DOD has been assigning classifications using
a methodology that includes assessing projections, fireballs, and
jets of flame from unconfined initiation testing. DOD would consider
this methodology as equivalent testing and criteria for the
assignments of the eight Divisions 1.4 explosive [a]rticles. The DOD
[has] not noted any transportation issues with the 378 articles
assigned these UN numbers * * * Conducting test Type 6(d) for the
378 articles would take a considerable amount of time without any
credible or measurable increase in safety * * * Reclassifying * * *
by reassigning CGs other than S is also not a viable option due to
the complexity of DOD logistics. Consolidating, and remarking each
shipping container located at strategic positions around the world
for [defense purposes] would be costly, time consuming and
potentially have little safety improvements.

    ESB recommended adding a grandfathered exception or issuing a
special permit for previously approved DOD Division 1.4S material. We
acknowledge concerns by Federal agencies regarding costs and time
constraints in the interest of national security. We are currently
working directly with potentially affected government stakeholders to
remedy concerns regarding implementation of the new requirement for the
Type 6(d) test on such entities.
7. Classification of Sour Crude Oil
    PHMSA agreed with comments submitted in response to the October
2009 ANPRM that a new proper shipping name is not necessary and that
there are more appropriate ways to communicate the potential inhalation
hazard risk to transport workers. Therefore, in the August 2010 NPRM,
PHMSA proposed to adopt the new proper shipping name found in the UN
Model Regulations--``Petroleum sour crude oil, flammable, toxic''--with
the letter ``I'' in Column (1) of the HMT indicating that this
description is appropriate for use during international transportation.
However, PHMSA did not propose to require use of the new proper
shipping name for domestic transportation. PHMSA did propose that a new
marking be applied to bulk packagings containing sour crude oil to
communicate the potential inhalation risk in transportation.
    Three commenters (API, ATA, DGAC) opposed our proposed requirements
as ill-conceived and impractical and had concerns with the new marking.
They believe the new marking is not necessary based on industry best
practices already in place. One commenter (AAR) sought clarification of
rail carrier requirements in relation to the proposed marking
requirement. Although the commenters opposed our proposed requirements,
they strongly support hazard communication processes and procedures to
protect employees, the public and the environment from any unreasonable
risk of danger from hydrogen sulfide gas. API noted:

    Cargo specific testing of individual packages upon loading,
followed by the required identification, classification, packaging
selection, marks, labels, placards, and documentation process is
impractical. The physical and chemical criteria of the DG/HazMat
define the basic shipping information * * * The preparation of
shipping information and selection of packagings is typically done
well in advance of loading on the basis of known, reliably measured,
physical and chemical criteria of the materials being transported.
When a wide range of the test results is possible, the DG/HazMat
classifiers generally utilize the most conservative data to develop
the basic shipping information * * * It is impossible to predict the
concentration of H2S in the head space vapors evolving from liquid
petroleum crude oils. There is not [a] standardized test,
statistical correlation, or known methodology to do this * * *
Without a reliable, proven methodology, any attempt to develop a
classification process regarding potential, future H2S vapor space
concentrations is unrealistic * * * API could

support the use of a differentiated graphic, unique in communicating
the potential H2S vapor [but any] such mark should be considered
voluntary and not mandated * * *. Companies should be allowed the
flexibility in choosing an option that works best for their
operations.

    DGAC added:

    [W]e are concerned that providing a warning for select crude
oils may result in decreased vigilance when other substances also
posing a potential hydrogen sulfide risk are handled * * *. If * * *
PHMSA maintains that a mark is still necessary, we recommend that
the applicability of any marking be limited to cargo tank truck
operations * * * PHMSA should allow the warning to appear in the
vicinity of the loading/unloading operation or on the vehicle at the
loading location. This would avoid the need to add and remove the
mark from the cargo tank truck * * * We consider the proposed GHS
poison mark to be inappropriate * * * Applying the PHMSA proposed
mark on crude oil tanks that do not meet the inhalation toxicity
criteria results in a hazard communication conflict which should and
can be avoided * * *. Should PHMSA maintain a warning is needed, we
recommend a warning sign in English that conveys the message that
there is a potential hydrogen sulfide hazard. An example could be *
* * ``Danger, Possible Hydrogen Sulfide Inhalation Hazard,'' * * *
[to be possibly] supplemented by pictograms.

    ATA expressed concerns that:

    Not every load of sour crude will form hydrogen sulfide during
transportation, which will require carriers to repeatedly affix and
remove markings * * * If carriers are required to repeatedly alter
marking requirements, issues of employee safety from climbing on top
of tank trucks as well as economic issues * * * must be better
understood. [We] recommend that the warning be located at the
loading or unloading facility rather than on the tank truck or other
bulk container.

    We agree in part with the comments. We continue to maintain that
there is a safety risk to hazmat employees that may become exposed to
hydrogen sulfide vapor in proximity to openings on packagings during a
loading or unloading operation due to elevated concentrations of
hydrogen sulfide vapors. We do not believe this risk is limited to
cargo tank motor vehicles. It may be that the primary mode of
transportation for petroleum crude oil is by cargo tank motor vehicle,
but we also continue to maintain that any proposed requirement should
apply to all bulk packagings as we believe this risk may be present in
any packaging with a bulk quantity of petroleum crude oil.
    PHMSA agrees with commenters who have stated that a hazard warning
statement specific to hydrogen sulfide gas on bulk packagings would
provide for appropriate communication of the risk of potential exposure
to such gas. PHMSA notes that such a marking is both specific to the
gas and aligns with corresponding warnings currently employed in
practice on the shipping documentation. Therefore, in this final rule,
PHMSA is amending the marking requirement originally proposed to
provide more flexibility to shippers and carriers by allowing a text
warning such as ``Danger, Possible Hydrogen Sulfide Inhalation Hazard''
on bulk packagings containing sour crude to communicate the potential
inhalation risk in transportation. See Section 172.327 for a discussion
of the new marking requirements.
8. IBC Rebottling
    In the NPRM, PHMSA proposed to adopt the revised definition of
``repair'' for composite IBCs consistent with international standards.
To specifically address commenters' concerns, PHMSA noted that any
proposed compliance date would be no earlier than January 1, 2012, thus
providing ample time to comply with the new IBC requirement. We did not
receive any additional comments in response to the NPRM. Therefore, in
this final rule we are adopting the revised definition of ``repair'' of
an IBC as proposed. See Section 180.350 for a discussion of the revised
requirement.
9. Metal Hydride Storage Systems in Conveyances
    In the August 2010 NPRM, PHMSA proposed to adopt the standards for
the construction, qualification, marking and requalification of
hydrogen in metal hydride storage systems adopted in the UN Model
Regulations. We did not receive any additional comments in response to
the NPRM. Therefore, in this final rule we are adopting the
requirements as proposed. See Section 173.311 for a discussion of
requirements for hydrogen in a metal hydride storage system.
10. In Vitro Testing for Corrosivity
    Based on the overwhelming support for adoption into the HMR, in the
NPRM PHMSA proposed to adopt and authorize the use of the OECD in vitro
methods. We received over 2,200 comments additional to that received
from PETA, in response to the NPRM supporting the adoption of in vitro
testing methods to determine corrosivity and urging PHMSA to stop the
requirement for use of methods based on live animal testing. Therefore,
in this final rule we are adopting the OECD in vitro testing methods as
proposed. See Section 173.137 for further discussion of such methods.

B. Harmonization Amendments Not Considered for Adoption in This Final
Rule

    This final rule makes changes to the HMR based on amendments made
in the UN Model Regulations (sixteenth revised edition), IMDG Code
(Amendment 35-10) and the ICAO Technical Instructions (2011-2012),
which becomes effective January 1, 2011 (the IMDG Code is effective
January 1, 2012). We are not, however, adopting all the amendments made
to the various international standards into the HMR. In many cases, we
have not adopted amendments to the international recommendations and
regulations because the framework or structure of the HMR makes
adoption unnecessary. In other cases, we have handled, or will be
handling, the amendments in separate rulemaking proceedings.
    One of the goals of this rulemaking is to continue to maintain
consistency between the HMR and the international requirements. We are
not striving to make the HMR identical to the international
regulations, but rather to remove or avoid potential barriers to
international transportation.
    Below is a listing of those significant amendments to the
international regulations that we are not adopting in this final rule,
with a brief explanation of why the amendment was not included:
1. Requirements for Radioactive Materials
    In the NPRM, we did not propose to adopt provisions pertaining to
the transportation of Class 7 (radioactive) materials into the HMR.
Amendments to requirements pertaining to the transportation of Class 7
(radioactive) materials are based on changes contained in the
International Atomic Energy Agency (IAEA) publication, ``IAEA Safety
Standards: Regulations for the Safe Transport of Radioactive
Materials.'' Due to their complexity, these changes are being addressed
in a separate rulemaking.
2. Requirements for Lithium Batteries
    PHMSA published an NPRM under Docket HM-224F (75 FR 1302, January
11, 2010) that proposed to adopt provisions to ensure all lithium
batteries are packaged properly to reduce the possibility of damage to
lithium batteries that could lead to a catastrophic incident, and to
minimize the consequences of an incident should one occur. In addition,
PHMSA proposed to require lithium battery shipments to be accompanied
by hazard communication that ensures appropriate

and careful handling by air carrier personnel, including the flight
crew, and informs both transport workers and emergency response
personnel of actions to be taken in an emergency. The NPRM, which PHMSA
developed in close coordination with our colleagues in the Federal
Aviation Administration, is the latest in a series of actions PHMSA has
taken to address the very serious risks posed by lithium batteries in
transportation. The NPRM included proposed revisions to the HMR that
were based on lithium battery provisions in the sixteenth revised
edition of the UN Model Regulations. Therefore, except for wheelchairs
powered by lithium ion batteries, we are not adopting new provisions
pertaining to the transportation of lithium cells and batteries in this
rulemaking. The docket for the lithium battery rulemaking can be found
elsewhere at http://www.regulations.gov under PHMSA-2009-0095.
    We note that a number of commenters objected to our inclusion of
limitations on the stowage of lithium batteries in Sec.  175.75 of the
HMR and strongly urged that the limitations be removed from this
rulemaking and addressed in a separate lithium battery rulemaking such
as HM-224F. We agree. All reference to lithium batteries in our
revisions to Sec.  175.75 are removed from this rulemaking.
3. Requirements for Air Packaging
    We are not adopting provisions pertaining to certain packagings
offered for transportation by aircraft under this rulemaking. PHMSA is
considering certain amendments to the HMR related to requirements for
the packaging of hazardous materials intended for transportation by
aircraft under a separate docket (HM-231A). These would include
amendments based on the reformatted packing instructions in the 2011-
2012 ICAO Technical Instructions. PHMSA published an ANPRM (73 FR
38361, July 7, 2008) and an NPRM (75 FR 27273, May 14, 2010) related to
combination packaging standards offered in air transportation. See
http://www.regulations.gov under PHMSA-2007-29364 for more information.

IV. Section-by-Section Review

    Following is a section-by-section review of the amendments in this
final rule:

Part 171

Section 171.7
    The ``National Technology Transfer and Advancement Act of 1996''
directs agencies to use voluntary consensus standards. According to the
Office of Management and Budget (OMB) Circular A-119, ``Federal
Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities,'' government
agencies must use voluntary consensus standards wherever practical in
the development of regulations. Agency adoption of industry standards
promotes productivity and efficiency in government and industry,
expands opportunities for international trade, conserves resources,
improves health and safety, and protects the environment.
    To these ends, PHMSA actively participates in the development and
updating of consensus standards through representation on more than 20
consensus standard bodies. PHMSA regularly reviews updated consensus
standards and considers their merit for inclusion in the HMR.
    Section 171.7 lists all materials incorporated by reference (IBR
materials) into the HMR. For this rulemaking, we evaluated updated
international consensus standards and regulations pertaining to proper
shipping names, hazard classes, packing groups, special provisions,
packaging authorizations, air transport quantity limitations, and
vessel stowage requirements and determined that the revised standards
provide an enhanced level of safety without imposing significant
compliance burdens. These materials have a well-established and
documented safety history. Their adoption maintains the high safety
standard currently achieved under the HMR.
    Some commenters (IATA, PRBA, Saft) indicated concern that the fifth
revised edition of the UN Recommendations on the Transportation of
Dangerous Goods, Manual of Tests and Criteria (UN Manual) was not
included among the IBR materials to be updated and suggest that PHMSA
include the document.
    We agree. PHMSA proposed to incorporate by reference the fifth
revised edition of the UN Manual under docket HM-224F published January
11, 2010 (75 FR 1302) because the revised version of the manual
contained updated tests for lithium cells and batteries. However, that
rulemaking will have an effective date later than this final rule. This
rule contains provisions regarding new test requirements for other
materials (e.g., explosives) that are found in the updated edition of
the UN Manual making it necessary for us to incorporate by reference
the fifth edition. Therefore, we are including the updated fifth
revised edition of the UN Manual and updating the IBR materials
referenced in the HMR by adding and revising material under the
following organizations:
     The American Society for Testing and Materials (ASTM)
    [cir] ASTM D56-05, Standard Test Method for Flash Point by Tag
Closed Tester (Referenced in Sec.  173.120(c)(1)(i)(A); Added to Sec.
171.7).
    [cir] ASTM D86-07a, Standard Test Method for Distillation of
Petroleum Products at Atmospheric Pressure (Referenced in Sec.
173.121; Added to Sec.  171.7).
    [cir] ASTM D93-08, Standard Test Methods for Flash Point by Pensky-
Martens Closed Cup Tester (Referenced in Sec.  173.120(c)(1)(ii)(A);
Added to Sec.  171.7).
    [cir] ASTM D1078-05, Standard Test Method for Distillation Range of
Volatile Organic Liquids (Referenced in Sec.  173.121; Added to Sec.
171.7).
    [cir] ASTM D3278-96(2004)e1, Standard Test Methods for Flash Point
of Liquids by Small Scale Closed-Cup Apparatus (Referenced in
Sec. Sec.  173.120(c)(1)(i)(B) and 173.120(c)(1)(ii)(B); Added to Sec.
171.7).
    [cir] ASTM D3828-07a, Standard Test Methods for Flash Point by
Small Scale Closed cup Tester (Referenced in Sec.  173.120(c)(1)(i)(C);
Added to Sec.  171.7).
     The International Civil Aviation Organization (ICAO)
Technical Instructions for the Safe Transport of Dangerous Goods by Air
(ICAO Technical Instructions), 2009-2010 Edition is revised to
incorporate 2011-2012 Edition.
     The International Convention for the Safety of Life at
Sea, 1974, as amended (SOLAS) Amendments 2002, Chapter II-2/Regulation
19, Consolidated Edition 2004 is revised to incorporate the 2009
Edition.
     The International Maritime Organization (IMO)
International Maritime Dangerous Goods Code, 2008 Edition,
Incorporating Amendment 34-08, English Edition, Volumes 1 and 2 is
revised to incorporate Amendment 35-10.
     The International Organization for Standardization (ISO)
    [cir] ISO 1516:2002(E), Determination of flash/no flash--Closed cup
equilibrium method (Referenced in Sec.  173.120; Added to Sec.  171.7).
    [cir] ISO 1523:2002(E), Determination of flash point--Closed cup
equilibrium method (Referenced in Sec.  173.120; Added to Sec.  171.7).
    [cir] ISO 2592:1973(E), Petroleum products--Determination of flash
and fire points--Cleveland open cup method (Revised to incorporate the
2000 Edition).

    [cir] ISO 2719:2002(E), Determination of flash point--Pensky-
Martens closed cup method (Referenced in Sec.  173.120; Added to Sec.
171.7).
    [cir] ISO 3405:2000(E), Petroleum products--Determination of
distillation characteristics at atmospheric pressure (Referenced in
Sec.  173.121; Added to Sec.  171.7).
    [cir] ISO 3679:2004(E), Determination of flash point--Rapid
equilibrium closed cup method (Referenced in Sec.  173.120; Added to
Sec.  171.7).
    [cir] ISO 3680:2004(E), Determination of flash/no flash--Rapid
equilibrium closed cup method (Referenced in Sec.  173.120; Added to
Sec.  171.7).
    [cir] ISO 3924:1999(E), Petroleum products--Determination of
boiling range distribution--Gas chromatography method (Referenced in
Sec.  173.121; Added to Sec.  171.7).
    [cir] ISO 4626:1980(E), Volatile organic liquids--Determination of
boiling range of organic solvents used as raw materials (Referenced in
Sec.  173.121; Added to Sec.  171.7).
    [cir] ISO 4706:2008(E), Gas cylinders--Refillable welded steel
cylinders--Test pressure 60 bar and below (Referenced in Sec.  178.71;
Added to Sec.  171.7).
    [cir] ISO 10297:1999, Gas cylinders--Refillable gas cylinder
valves--Specification and type testing, First edition, May 1999, (E)
(Revised to incorporate 2006 Edition).
    [cir] ISO 10461:2005, Gas cylinders--Seamless aluminum-alloy gas
cylinders, Periodic inspection and testing, Second edition, February
2005, (E) (Revised to incorporate Amendment 1 (2006)).
    [cir] ISO 10692-2:2001(E), Gas cylinders--Gas cylinder valve
connections for use in the micro-electronics industry--Part 2:
Specification and type testing for valve to cylinder connections
(Referenced in Sec.  173.40; Added to Sec.  171.7).
    [cir] ISO 13736:2008(E), Determination of flash point--Abel closed-
cup method (Referenced in Sec.  173.120; Added to Sec.  171.7).
    [cir] ISO 16111:2008(E), Transportable gas storage devices--
Hydrogen absorbed in reversible metal hydride (Referenced in Sec. Sec.
173.311 and 178.71; Added to Sec.  171.7).
    [cir] ISO 18172-1:2007(E), Gas cylinders--Refillable welded
stainless steel cylinders--Part 1: Test pressure 6 MPa and below
(Referenced in Sec.  178.71; Added to Sec.  171.7).
    [cir] ISO 20703:2006(E), Gas cylinders--Refillable welded aluminum-
alloy cylinders--Design, construction and testing (Referenced in Sec.
178.71; Added to Sec.  171.7).
     Organization for Economic Cooperation and Development
(OECD)
    [cir] Guidelines for the Testing of Chemicals, Test Guideline 404,
Acute Dermal Irritation/Corrosion (1992) (Revised to incorporate 2002
edition).
    [cir] Guidelines for the Testing of Chemicals, Test Guideline 430,
In Vitro Skin Corrosion: Transcutaneous Electrical Resistance Test
(TER) (2004) (Referenced in Sec.  173.137; Added to Sec.  171.7).
    [cir] Guidelines for the Testing of Chemicals, Test Guideline 431,
In Vitro Skin Corrosion: Human Skin Model Test (2004) (Referenced in
Sec.  173.137; Added to Sec.  171.7).
    [cir] Guidelines for the Testing of Chemicals, Test Guideline 435,
In Vitro Membrane Barrier Test Method for Skin Corrosion (2006)
(Referenced in Sec.  173.137; Added to Sec.  171.7).
     Transport Canada, Transportation of Dangerous Goods
Regulations, including Clear Language Amendments 1 through 5 (Revised
to add SOR/2008-34 (Amendment 6; February 7, 2008) in its entirety and
SOR/2007-179 (Amendment 7; July 31, 2007)).
     The United Nations Recommendations on the Transport of
Dangerous Goods, Model Regulations, fifteenth revised edition (2007),
Volumes I and II (Revised to incorporate the sixteenth revised
edition).
     The United Nations Recommendations on the Transport of
Dangerous Goods, Manual of Tests and Criteria, fourth revised edition,
(2003), and Addendum 2 (2004). (Revised to incorporate the fifth
revised edition).
Section 171.8
    This section defines terms generally used throughout the HMR that
have broad or multi-modal applicability. We received no comments
regarding our proposed adoption of new definitions. Therefore, in this
final rule PHMSA is adding the following defined terms based on their
adoption in the UN Model Regulations:
    Metal hydride storage system. This term means a single complete
hydrogen storage system that includes a receptacle, metal hydride,
pressure relief device, shut-off valve, service equipment and internal
components used for the transportation of hydrogen only.
    Open cryogenic receptacle. This term means a transportable
thermally insulated receptacle for refrigerated liquefied gases
maintained at atmospheric pressure by continuous venting of the
refrigerated gas.
    Additionally, we proposed to revise the definition of Oxidizing gas
to specify that an oxidizing gas is a pure gas or gas mixture with an
oxidizing power greater than 23.5% as determined by a method specified
in ISO 10156:1996 or 10156-2:2005. See also Sections 172.101 and
173.115, for discussion of changes to the ``Compressed gas, n.o.s.,
UN1956.'' HMT entry and definition, respectively. We received no
comments on the revised definition. Therefore, in this final rule we
are adopting the revision as proposed.
Section 171.23
    Section 171.23 prescribes the conditional requirements for specific
materials and packages transported under the various international
standards as permitted by the HMR. In this final rule we are removing
the Sec.  171.23(b)(9) requirement that stipulates Division 6.1
poisonous materials transported as limited quantities are not excepted
from labeling. This change aligns the labeling requirements in the HMR
for limited quantities with the international standards without
compromising safety.
Section 171.25
    Section 171.25 prescribes the additional requirements for specific
materials and packages transported under the IMDG Code as permitted by
the HMR. In this final rule, we are deleting paragraphs (c)(5) and
(d)(3). Paragraphs (c)(5) and (d)(3) required portable tanks, cargo
tanks, and tank cars containing cryogenic liquids transported by vessel
to be stowed on deck regardless of the stowage requirements authorized
under the IMDG Code. The IMDG Code now requires this same stowage for
certain packagings containing cryogenic materials aboard a vessel,
thus, paragraphs (c)(5) and (d)(3) are no longer necessary.
    Effective January 1, 1997, vehicles and mechanical equipment
containing internal combustion engines were no longer subject to the
IMDG Code as conditionally designated under Amendment 28-96. Effective
January 1, 2012, such articles will once again be subject to the IMDG
Code under Amendment 35-10. Because the new requirements in the IMDG
Code are more stringent than requirements for similar material in the
HMR, PHMSA is amending Sec.  171.25 by revising paragraph (b)(1) and
adding a new paragraph (b)(4) permitting use of the IMDG Code or the
HMR to prepare and stow vehicles and mechanical equipment containing
internal combustion engines when offered for transport by vessel.

Part 172

Section 172.101
    Introductory text to the Sec.  172.101 HMT contains explanatory
text for each of the columns that comprise the HMT. Currently, Sec.
172.101(c)(10) provides specific requirements regarding the selection
of an appropriate proper shipping name for mixtures and solutions
containing more than one hazardous material of the same hazard class.
In many cases, such mixtures and solutions are best described by a
generic or ``not otherwise specified'' entry (i.e., an ``n.o.s.''
entry). For example, a solution containing two or more flammable liquid
constituents may best be described under the entry ``Flammable liquids,
n.o.s., UN1993.'' However, in some cases where two or more hazardous
materials are present, a single hazardous material may predominate
where the other hazardous materials may be present in only trace
amounts. In such cases, a description applicable to the predominant
material may be more appropriate. A recent incident underscores the
importance of using the most specific and appropriate shipping
description. In that incident, an aluminum cylinder containing 99.9%
pure ethyl chloride ruptured in storage incidental to transport. It was
determined that the root cause was a reaction between the cylinder's
contents and the aluminum. The relevant construction standard for the
cylinder indicated that ethyl chloride was reactive with aluminum and
that aluminum was not recommended for the transport of ethyl chloride.
However, the shipper selected a generic compressed gas shipping
description rather than the ethyl chloride name due to the presence of
trace amounts of other hazardous materials. While we note that the
general requirements for packagings still broadly address the
responsibility of the shipper in selecting a packaging that is
compatible with its lading, and that these requirements were also
applicable and apparently overlooked, the incident nonetheless
highlights the benefit of using a more specific description, where
appropriate, to help ensure that the most appropriate transport
provisions are followed.
    To address this issue, the UN Model Regulations were amended to
require, except as otherwise specified, that a mixture or solution of a
single predominant hazardous material containing only traces of one or
more additional hazardous materials listed by name in the HMT or
additional non-hazardous constituents be assigned the UN number and
proper shipping name of the predominant material contributing to the
overall hazard classification of the mixture or solution. Adopting a
similar provision in the HMR will enhance a shipper's ability to select
the most appropriate shipping description. In the NPRM, PHMSA proposed
to add a new paragraph, Sec.  172.101(c)(10)(iv), outlining the
authorization to describe the mixture or solution based on the
predominant material contributing to the hazard classification.
    One commenter (DOE) suggested that we remove the reference to non-
hazardous material in Sec.  172.101(c)(10)(iv) because the mixture of
hazardous material and non-hazardous material is already addressed in
Sec.  172.101(c)(10)(i). Additionally, the commenter asked for
clarification of instances when the provision should be used and asked
to define the meaning of ``trace amounts.''
    We agree. It is correct that Sec.  172.101(c)(10)(i) already
addresses a mixture or solution of a hazardous material and non-
hazardous material. The provision pertains to a mixture or solution
containing non-hazardous material in such quantities that it does not
alter the physical state or purity of the hazardous material it is
mixed with, as well as either the hazard classification, packing group,
subsidiary hazard, or emergency response procedures. The intent of new
paragraph Sec.  172.101(c)(10)(iv) is to provide instruction for
selecting the most appropriate proper shipping name for a mixture or
solution of a hazardous material and traces of one or more other
hazardous materials, one or more non-hazardous materials, or both.
Where such a mixture or solution occurs that the trace amount of
material does not affect the classification, the material must be
described using the most appropriate proper shipping name for the
predominant hazardous material. Based on the comment received and
reconsideration of our proposal, we are instead revising paragraph
(c)(10)(i) to provide clarification on properly describing a material
that is a mixture or solution of a predominant hazardous material and
trace amounts of hazardous or non-hazardous material, or both; rather
than add a new paragraph (c)(10)(iv). The six conditions in Sec.
172.101(c)(10)(i) that currently limit a mixture or solution of
hazardous material with a non-hazardous material from being described
using the proper shipping name of the hazardous material would also
apply to a mixture or solution of a single predominant hazardous
material and trace amounts of other hazardous or non-hazardous
materials or both.
    With regard to instances when the provision would be used, we would
expect it to be applied in cases of mixtures or solutions of a
hazardous material that contain small amounts of preservatives or are
contaminated with trace amounts of hazardous material in such a way
that the ``trace amounts'' do not affect the packaging, the hazard
class, the packing group, etc of the hazardous material. As for
defining ``trace amounts'' we do not specifically define this term
because determination of when an amount of material affects the hazard
classification is highly variable depending on the physical and
chemical properties of the materials involved and the quantities of
material involved. Therefore, in this final rule, we are revising Sec.
172.101(c)(10)(i) to provide instruction on properly describing a
material that is a mixture or solution of a predominant hazardous
material and trace amounts of hazardous or non-hazardous material, or
both.
    Paragraph (e) of Sec.  172.101 provides explanations for the
letters that precede identification numbers assigned to proper shipping
names in the HMT. In this final rule, PHMSA is adding an explanation
for identification numbers associated with certain descriptions under
the ICAO Technical Instructions and are preceded by the letters ``ID.''
Additionally, PHMSA is authorizing use of the international air
description, ``ID8000, Consumer commodity, 9'' in the HMT with material
and article eligibility for use of the description based on Special
provision A112 and Packing Instruction Y963 of the 2011-2012 ICAO
Technical Instructions.

Hazardous Materials Table (HMT)

    In this final rule, PHMSA is making various amendments to the HMT.
Readers should review all changes for a complete understanding of the
amendments. For purposes of the Government Printing Office's
typesetting procedures, changes to the HMT appear under three sections
of the Table, ``remove,'' ``add,'' and ``revise.'' Certain entries in
the HMT, such as those with revisions to the proper shipping names,
appear as a ``remove'' and ``add.'' Amendments to the HMT include the
following:

New HMT entries

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

----------------------------------------------------------------------------------------------------------------
UN3482..............................................  Alkali metal dispersions, flammable or Alkaline earth
                                                       metal dispersions, flammable.
UN3496..............................................  Batteries, nickel-metal hydride.
----------------------------------------------------------------------------------------------------------------

    This new HMT entry for UN3496 includes a W in Column (1) to
indicate use of this hazardous materials description is limited to
vessel transport of these materials.
    Two commenters (Saft, PRBA) indicated concern with our proposed
assignment of Special Provision 130 (for transportation of dry
batteries--i.e., ``Batteries, dry, sealed, n.o.s.'') to this entry and
the potential for confusion leading to use of this entry for modes
other than vessel.
    We agree. To help clarify the use of this entry, we have included
additional language in Column (2) to refer shippers transporting
nickel-metal hydride batteries by modes other than vessel to the HMT
entry ``Batteries, dry, sealed, n.o.s.'' for instruction on the
transport requirements for nickel-metal hydride batteries.
Additionally, we have revised Special Provision 130 to make clear that
for other than nickel-metal hydride batteries transported by vessel
subject to Special Provision 340, dry batteries must be transported in
accordance with Special Provision 130.

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

----------------------------------------------------------------------------------------------------------------
UN3485..............................................  Calcium hypochlorite, dry, corrosive or Calcium
                                                       hypochlorite mixtures, dry, corrosive with more than 39%
                                                       available chlorine (8.8% available oxygen).
UN3487..............................................  Calcium hypochlorite, hydrated, corrosive or Calcium
                                                       hypochlorite, hydrated mixture, corrosive with not less
                                                       than 5.5% but not more than 16% water.
UN3486..............................................  Calcium hypochlorite mixture, dry, corrosive with more
                                                       than 10% but not more than 39% available chlorine.
ID8000..............................................  Consumer commodity.
----------------------------------------------------------------------------------------------------------------

    This shipping description is added to the HMT as a Class 9
miscellaneous hazardous material to be used for the air transportation
of limited quantities of certain hazardous materials of Class 2 (non-
toxic aerosols only), Class 3 (PG II and III only), Division 6.1 (PG
III only), and of UN identification numbers UN3077, UN3082, and UN3175,
provided such materials do not have a subsidiary risk and are
authorized aboard a passenger-carrying aircraft. This amendment is
based on changes incorporated into the 2011-2012 ICAO TI.

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

----------------------------------------------------------------------------------------------------------------
UN3484..............................................  Hydrazine aqueous solution, flammable with more than 37%
                                                       hydrazine, by mass.
UN3495..............................................  Iodine.
----------------------------------------------------------------------------------------------------------------

    Iodine is transported globally under a number of different shipping
descriptions dependent on the shipper. In the interest of reducing
risks associated with transport of iodine under various descriptions
and therefore, various packaging, we are adding this unique UN
identification number and shipping description to provide for specific
packaging requirements and faster identification and access to
emergency response information.

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

----------------------------------------------------------------------------------------------------------------
UN1471..............................................  Lithium hypochlorite, dry or Lithium hypochlorite mixture,
                                                       Division 5.1, PG III.
----------------------------------------------------------------------------------------------------------------

    Lithium hypochlorite is a common commercial product used as a
disinfectant that is often mixed with other non-hazardous organic
salts. Currently, the HMT only provides for a Division 5.1, PG II
designation for this material, yet testing conducted in accordance with
the UN Manual of Tests and Criteria has indicated that some common
commercial mixtures meet the criteria for classification in Division
5.1, PG III. Therefore, PHMSA is adding a line to the current entry to
allow for classification of lithium hypochlorite and mixtures of
lithium hypochlorite in PG III, where appropriate.
    One commenter (FMC) noted that the addition of the proposed PG III
entry for the ``Lithium hypochlorite, UN1471'' shipping description
retains the italicized text ``with more than 39% available chlorine
(8.8% available oxygen)'' as well as the word ``dry'' for lithium
hypochlorite mixtures and that this is not consistent with the
hazardous materials description in the dangerous goods list in the UN
Model Regulations, the ICAO Technical Instructions, and the soon to be
adopted IMDG Code. FMC requested that PHMSA revise the entry by
deleting the qualifying text as well as the word ``dry'' to be
consistent with international standards and regulations and to provide
shippers with the most appropriate shipping description for the
transport of lithium hypochlorite materials. Additionally, FMC stated:

    [M]ore fundamental and practical problems will arise if this
qualifying text is retained in the HMR entry for UN1471. Some of the
commercial lithium hypochlorite products shipped domestically and
internationally by FMC have less than 39% available chlorine (8.8%
available oxygen), and so would not be properly described by the
entry as it is proposed to be modified. [T]hese products
nevertheless meet the criteria for classification in Division 5.1,
Packing Group II or III. Consequently, under the HMR, FMC must
describe these products by an appropriate entry in the HMT
associated with the correct class and packing group, namely
``Hypochlorites, inorganic, n.o.s.'' (UN3212) if the product meets
Packing Group II criteria, or, since UN3212 does not provide a
Packing Group III option, ``Oxidizing solid, n.o.s.'' (UN1479) if
the product meets the criteria for assignment to Packing Group III.
Thus, for road and rail transport within the United States FMC's
lithium hypochlorite products would have to be described by one of
three different entries.

    We agree. Removing the italicized text would facilitate a uniform
process of describing lithium hypochlorite materials for transport
purposes without reducing the safety of transport when using this
description in lieu the descriptions discussed in the comment by FMC.
Additionally, we are making a conforming amendment (with the IMDG Code)
to the PG II entry for UN1471 to assign special provisions T3 and TP33
applicable to a portable tank when used to transport this material. T3
outlines

the minimum test pressure, minimum shell thickness, bottom opening
requirements, and pressure relief requirements in addition to the
design and constructions requirements for the portable tank. TP33
outlines provisions for transport of granular or powdered solids.
Therefore, in this final rule, we are adopting the PG III entry for
``Lithium hypochlorite, UN1471'' without the italicized text and the
word ``dry,'' as well as making a conforming revision to the shipping
description for the PG II entry already in the HMT to read, ``Lithium
hypochlorite, dry or Lithium hypochlorite mixtures, UN1471.''

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

----------------------------------------------------------------------------------------------------------------
UN3483..............................................  Motor fuel anti-knock mixture, flammable.
UN3494..............................................  Petroleum sour crude oil, flammable, toxic (this entry is
                                                       identified in the HMT as appropriate for international
                                                       transportation under Sec.   172.101(b)(5)).
UN3492..............................................  Toxic-by-inhalation liquid, corrosive, flammable, n.o.s.
                                                       with an inhalation toxicity lower than or equal to 200 ml/
                                                       m \3\ and saturated vapor concentration greater than or
                                                       equal to 500 LC 50.
UN3493..............................................  Toxic-by-inhalation liquid, corrosive, flammable, n.o.s.
                                                       with an inhalation toxicity lower than or equal to 1000
                                                       ml/m \3\ and saturated vapor concentration greater than
                                                       or equal to 10 LC 50.
UN3488..............................................  Toxic-by-inhalation liquid, flammable, corrosive, n.o.s.
                                                       with an inhalation toxicity lower than or equal to 200 ml/
                                                       m \3\ and saturated vapor concentration greater than or
                                                       equal to 500 LC 50.
UN3489..............................................  Toxic-by-inhalation liquid, flammable, corrosive, n.o.s.
                                                       with an inhalation toxicity lower than or equal to 1000
                                                       ml/m \3\ and saturated vapor concentration greater than
                                                       or equal to 10 LC 50.
UN3490..............................................  Toxic-by-inhalation liquid, water-reactive, flammable,
                                                       n.o.s. with an inhalation toxicity lower than or equal to
                                                       200 ml/m \3\ and saturated vapor concentration greater
                                                       than or equal to 500 LC 50.
UN3491..............................................  Toxic-by-inhalation liquid, water-reactive, flammable,
                                                       n.o.s. with an inhalation toxicity lower than or equal to
                                                       1000 ml/m \3\ and saturated vapor concentration greater
                                                       than or equal to 10 LC 50.
----------------------------------------------------------------------------------------------------------------

    Based on a recommendation by a commenter (PPG), we note that two
new entries for toxic-by-inhalation (TIH) material (i.e., UN3492 and
UN3493) added in the sixteenth revised edition of the UN Model
Regulations and in this final rule will likely be removed from the
dangerous goods table in the seventeenth revised edition of the UN
Model Regulations. Shippers who choose to use these new descriptions on
shipping papers and markings on boxes may incur additional costs when
having to change the material descriptions again should the
descriptions be removed from the UN Model Regulations and subsequently,
the HMR.
    Additionally, because of the addition of generic TIH descriptions
for toxic, flammable, corrosive material (i.e., UN 3488, UN3499), PPG
believes the domestic entries for ``sec-Butyl chloroformate, NA2742''
and ``Isobutyl chloroformate, NA2742'' are obsolete and recommended
that these materials be described using the generic TIH descriptions
for consistent hazard communication of these materials between modes of
transportation.
    We agree. Therefore, in this final rule, as a conforming amendment
to the addition of the generic TIH entries, we are deleting the
domestic use entries ``sec-Butyl chloroformate, NA2742'' and ``Isobutyl
chloroformate, NA2742'' from the HMT.

Amendments to the Column (1) Symbols

    The entries ``Elevated temperature liquid, flammable, n.o.s., with
flash point above 37.8 [deg]C, at or above its flash point, UN3256,''
``Elevated temperature liquid, n.o.s., at or above 100 [deg]C and below
its flash point (including molten metals, molten salts, etc.),
UN3257,'' and ``Elevated temperature solid, n.o.s., at or above 240
[deg]C, UN3258'' are revised by adding the symbol G. The symbol G
identifies proper shipping names for which a technical name of the
hazardous material is required in parentheses in association with the
basic description. Requiring the technical name(s) for certain elevated
temperatures materials will help emergency responders in selecting the
proper materials for extinguishing a fire involving these hazardous
materials and will aid in estimating the temperature properties of the
materials (e.g., the melting point).
    The entries ``Metal catalyst, dry, UN2881'' and ``Metal catalyst,
wetted with a visible excess of liquid, UN1378'' are revised by adding
the symbol G. The symbol G identifies proper shipping names for which a
technical name of the hazardous material is required in parentheses in
association with the basic description. Requiring the technical name(s)
for metal catalysts will aid emergency responders in selecting the
proper fire suppressant (e.g., CO2) if the hazardous
material is involved in a fire or in identifying other materials the
metal catalyst could react with.
    The entry ``Powder, smokeless, UN0509,'' is revised by deleting the
symbol D. The symbol D identifies a proper shipping name for domestic
use only. This entry has been adopted into the UN Model Regulations,
the ICAO TI, and the IMDG Code. This deletion is consistent with our
final rule published under Docket HM-215J (74 FR 2200, January 14,
2009) in which we indicated our intent to remove the symbol D in a
future rulemaking upon adoption of the entry into international
regulations.
    For the following Division 5.1 (oxidizer) materials and Division
6.1 (toxic) materials, the entries are revised by adding the symbol G.
The symbol G identifies proper shipping names for which one or more
technical names of the hazardous material must be entered in
parentheses in association with the basic description on a shipping
paper. Knowledge of the technical name of toxic materials may aid
emergency responders with implementing more appropriate first aid
measures:

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

----------------------------------------------------------------------------------------------------------------
UN3141..............................................  Antimony compounds, inorganic, liquid, n.o.s.
UN1549..............................................  Antimony compounds, inorganic, solid, n.o.s.
UN1556..............................................   Arsenic compounds, liquid, n.o.s. inorganic, including
                                                       arsenates, n.o.s.; arsenites, n.o.s.; arsenic sulfides,
                                                       n.o.s.; and organic compounds of arsenic, n.o.s.
UN1557..............................................   Arsenic compounds, solid, n.o.s. inorganic, including
                                                       arsenates, n.o.s.; arsenites, n.o.s.; arsenic sulfides,
                                                       n.o.s.; and organic compounds of arsenic, n.o.s.
UN1564..............................................  Barium compounds, n.o.s.
UN1566..............................................  Beryllium compounds, n.o.s.
UN3213..............................................  Bromates, inorganic, aqueous solution, n.o.s.
UN1450..............................................  Bromates, inorganic, n.o.s.

UN2570..............................................  Cadmium compounds.
UN3210..............................................  Chlorates, inorganic, aqueous solution, n.o.s.
UN1461..............................................  Chlorates, inorganic, n.o.s.
UN1462..............................................  Chlorites, inorganic, n.o.s.
UN1583..............................................  Chloropicrin mixtures, n.o.s.
UN3362..............................................  Chlorosilanes, toxic, corrosive, flammable, n.o.s.
UN3361..............................................  Chlorosilanes, toxic, corrosive, n.o.s.
UN1935..............................................  Cyanide solutions, n.o.s.
UN2856..............................................  Fluorosilicates, n.o.s.
UN3212..............................................  Hypochlorites, inorganic, n.o.s.
UN2291..............................................  Lead compounds, soluble, n.o.s.
UN2024..............................................  Mercury compounds, liquid, n.o.s.
UN2025..............................................  Mercury compounds, solid, n.o.s.
UN3144..............................................  Nicotine compounds, liquid, n.o.s. or Nicotine
                                                       preparations, liquid, n.o.s.
UN1665..............................................  Nicotine compounds, solid, n.o.s. or Nicotine
                                                       preparations, solid, n.o.s.
UN3219..............................................  Nitrites, inorganic, aqueous solution, n.o.s.
UN2627..............................................  Nitrites, inorganic, n.o.s.
UN3214..............................................  Permanganates, inorganic, aqueous solution, n.o.s.
UN1482..............................................  Permanganates, inorganic, n.o.s.
UN2026..............................................  Phenylmercuric compounds, n.o.s.
UN2630..............................................  Selenates or Selenites.
UN3440..............................................  Selenium compound, liquid, n.o.s.
UN3283..............................................  Selenium compound, solid, n.o.s.
UN3284..............................................  Tellurium compound, solid, n.o.s.
UN3285..............................................  Vanadium compound, solid, n.o.s.
----------------------------------------------------------------------------------------------------------------

Amendments to the Column (2) Hazardous Materials Descriptions and
Proper Shipping Names

    The proper shipping name for the entry ``Detonator, assemblies,
non-electric, for blasting, UN0500,'' is revised by removing the comma
after ``Detonator'' to read ``Detonator assemblies, non-electric, for
blasting.'' This revision appears as a ``Remove/Add'' in this
rulemaking.
    The proper shipping name for the entry ``Engines, internal
combustion, flammable gas powered, UN3166,'' is revised to read
``Engines, internal combustion or Engines, fuel cell, flammable gas
powered.'' This revision appears as a ``Remove/Add'' in this
rulemaking.
    One commenter (IATA) suggests that we revise this proper shipping
name to the singular ``engine'' in alignment with use of the singular
form for the entries in the UN Model Regulations. We disagree. As
indicated by the commenter, Sec.  172.101(c)(1) authorizes use of
proper shipping names in the singular or plural form. Therefore, we
believe it is not necessary to revise the proper shipping name to the
singular ``engine'' when the shipper is authorized to modify the proper
shipping name between singular and plural forms.
    The proper shipping name for the entry ``Engines, internal
combustion, flammable liquid powered, UN3166,'' is revised to read
``Engines, internal combustion or Engines, fuel cell, flammable liquid
powered.'' This revision appears as a ``Remove/Add'' in this
rulemaking.
    One commenter (IATA) suggests that we revise this proper shipping
name to the singular ``engine'' in alignment with use of the singular
form for the entries in the UN Model Regulations. We disagree. As
indicated by the commenter, Sec.  172.101(c)(1) authorizes use of
proper shipping names in the singular or plural form. Therefore, we
believe it is not necessary to revise the proper shipping name to the
singular ``engine.''
    The proper shipping names ``Formaldehyde, solutions, flammable,
UN1198'' and ``Formaldehyde, solutions, with not less than 25 percent
formaldehyde, UN2209'' are revised to remove an errant comma between
the words ``Formaldehyde'' and ``solutions.'' This revision appears as
a ``Remove/Add'' in this rulemaking.
    The proper shipping name for the entry ``1-Hydroxybenzotriazole,
anhydrous, wetted with not less than 20 percent water, by mass,
UN3474'' is revised to read ``1-Hydroxybenzotriazole, monohydrate.''
This revision appears as a ``Remove/Add'' in this rulemaking.
    The proper shipping name for the PG II entry for Lithium
hypochlorite, dry with more than 39% available chlorine (8.8% available
oxygen) or Lithium hypochlorite mixture, dry with more than 39%
available chlorine (8.8% available oxygen), UN1471'' is revised to read
``Lithium hypochlorite, dry or Lithium hypochlorite mixture'' to
conform with the addition of the new PG III entry and international use
of this proper shipping name. This revision appears as a ``Remove/Add''
in this rulemaking.
    The proper shipping name for the entry ``Nitric acid other than red
fuming, with less than 65 percent nitric acid, UN2031'' is revised to
read ``Nitric acid other than red fuming, with more than 20 percent and
less than 65 percent nitric acid, UN2031.'' The proper shipping name
for the Packing Group I entry ``Nitric acid other than red fuming, with
more than 70 percent nitric acid, UN2031'' is added to the HMT. In a
final rule published on January 14, 2009 (HM-215J; 74 FR 2200), errors
were made to both nitric acid entries and in this final rule, PHMSA
aligns them correctly in accordance with the various international
standards. Additionally, we are removing the outdated Packing Group II
entry ``Nitric acid other than red fuming, with not more than 70
percent nitric acid, UN2031'' that should have been removed from the
HMT in the same final rule.
    The proper shipping name for the entry ``Tars, liquid including
road asphalt and oils, bitumen and cut backs, UN1999'' is revised to
read ``Tars, liquid including road oils and cutback bitumens.'' The
entries in the HMT applicable to transport of bitumen may cause
confusion with respect to the proper classification of the material.
The entries include ``Combustible liquid, n.o.s., NA1993, combustible
liquid'' and ``Tars, liquid including road asphalt and oils, bitumen
and cut backs, UN1999, 3,'' and the entries ``Elevated temperature
liquid, flammable, n.o.s., UN3256, 3'' and ``Elevated temperature
liquid, n.o.s., UN3257, 9,'' when the material is heated and offered
for transport. Bitumen is a hydrocarbon material derived from crude oil
having a flashpoint of 160 [deg]C or greater. Bitumens typically do not
meet the classification for a Class 3 flammable

liquid except for cutback bitumens which are blended with a flammable
material such as kerosene. Also, road asphalt is bitumen mixed with
sand and fillers which also does not meet the classification for a
Class 3 flammable liquid. Therefore, we are revising the proper
shipping name ``Tars, liquid including road asphalt and oils, bitumen
and cut backs'' by removing reference to asphalt and clarifying
applicability to cutback bitumens to read ``Tars, liquid including road
oils and cutback bitumens.'' This revision appears as a ``Remove/Add''
in this rulemaking.
    The proper shipping name for the entry ``Trinitro-meta-cresol,
UN0216'' is revised to read ``Trinitro-m-cresol.'' This revision
appears as a ``Remove/Add'' in this rulemaking.
    The proper shipping name for the entry ``Vehicle, flammable gas
powered, UN3166,'' is revised to read ``Vehicle, flammable gas powered
or Vehicle, fuel cell, flammable gas powered.'' This revision appears
as a ``Remove/Add'' in this rulemaking.
    The proper shipping name for the entry ``Vehicle, flammable liquid
powered, UN3166,'' is revised to read ``Vehicle, flammable liquid
powered or Vehicle, fuel cell, flammable liquid powered.'' This
revision appears as a ``Remove/Add'' in this rulemaking.

Amendments to the Column (3) Hazard Class or Division

    PHMSA is revising the classification of a number of entries to
Division 6.1 poisonous primary hazards for consistency with the
adoption of classification changes into the sixteenth revised edition
of the UN Model Regulations. The changes are based on data provided
from a thorough review of literature on toxic-by-inhalation materials.
The review of literature is provided in Informal Document UN/SCETDG/33/
INF.8 submitted to the 33rd session of the UN Sub-Committee of Experts
on the Transport of Dangerous Goods which is available at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf33.html.
    For the entry ``Tetranitromethane, UN1510,'' the Class 5 (oxidizer)
material's primary hazard is revised to a Division 6.1 (poisonous)
material primary hazard.
    For the following Class 3 (flammable liquid) materials, the Class 3
primary hazard is revised to a Division 6.1 (poisonous) material
primary hazard.

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

----------------------------------------------------------------------------------------------------------------
UN2481..............................................  Ethyl isocyanate.
UN2486..............................................  Isobutyl isocyanate.
UN2483..............................................  Isopropyl isocyanate.
UN3079..............................................  Methacrylonitrile, stabilized.
UN2605..............................................  Methoxymethyl isocyanate.
----------------------------------------------------------------------------------------------------------------

    For the following Class 8 (corrosive) materials, the Class 8
primary hazard is revised to a Division 6.1 (poisonous) material
primary hazard.

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

----------------------------------------------------------------------------------------------------------------
UN1810..............................................  Phosphorous oxychloride.
UN1834..............................................  Sulfur chloride.
UN1838..............................................  Titanium tetrachloride.
----------------------------------------------------------------------------------------------------------------

Amendments to the Column (5) Packing Group (PG)

    The entry ``Carbon dioxide, solid or Dry ice, UN1845'' is revised
by deleting the PG III designation. In general, the PG assigned to a
material identifies the degree of hazard the material represents and
determines the performance level of the packaging required for the
material. For example, a PG II material (i.e., a moderate hazard
material) is considered more hazardous and requires more stringent
packaging than a PG III material (i.e., a low hazard material). Dry ice
presents minimal risk during transport except where concentrations may
build up in a confined space. Therefore, in this final rule, PHMSA is
deleting the PG III designation from the entry.
    For the following Division 6.1 poisonous materials, the PG is
revised to read PG I.

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

----------------------------------------------------------------------------------------------------------------
UN2668..............................................  Chloroacetonitrile.
UN1810..............................................  Phosphorous oxychloride.
UN2474..............................................  Thiophosgene.
UN1838..............................................  Titanium tetrachloride.
----------------------------------------------------------------------------------------------------------------

    PHMSA is making this revision to the PG assignment for these
entries for consistency with the adoption of changes into the sixteenth
revised edition of the UN Model Regulations. The changes are based on
data provided from a thorough review of literature on toxic-by-
inhalation materials. The review of literature is provided in Informal
Document UN/SCETDG/33/INF.8 submitted to the 33rd session of the UN
Sub-Committee of Experts on the Transport of Dangerous Goods which is
available at http://www.unece.org/trans/main/dgdb/dgsubc/c3inf33.html.

Amendments to the Column (6) Label(s)

    For the following hazardous material entries, PHMSA is revising the