Hazardous Materials: Revision of Requirements for Carriage by Aircraft, 14586-14615 [06-2596]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 55 (Wednesday, March 22, 2006)]
[Rules and Regulations]
[Pages 14586-14615]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2596]



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Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Parts 171, 172, 173, and 175



Hazardous Materials: Revision of Requirements for Carriage by Aircraft; 
Final Rule

Federal Register / Vol. 71, No. 55 / Wednesday, March 22, 2006 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173 and 175

[Docket No. RSPA-02-11654 (HM-228)]
RIN 2137-AD18


Hazardous Materials: Revision of Requirements for Carriage by 
Aircraft

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

ACTION: Final rule.

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SUMMARY: This final rule amends the requirements in the Hazardous 
Materials Regulations (HMR) for the transportation of hazardous 
materials by aircraft. This final rule clarifies the applicability of 
part 175; clarifies the exceptions from regulation for operator 
equipment and supplies, special aircraft operations, and passengers and 
crewmembers; revises separation distances for the shipment of 
radioactive materials by cargo aircraft; and updates the regulations to 
comply with security requirements for explosive special permits. These 
changes are being made to finalize outstanding petitions for 
rulemaking, convert certain special permits into regulations, and 
promote international harmonization, where appropriate.

DATES: The effective date of these amendments is October 1, 2006. 
Voluntary compliance is authorized April 21, 2006.

FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 400 Seventh 
Street SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Section-by-Section Review
    A. Sections 175.1 and 175.5 Purpose, Scope and Applicability
    B. Section 175.3 Unacceptable Hazardous Materials Shipments
    C. Section 175.10 Exceptions
    D. Section 175.20 Training
    E. Sections 175.25 and 175.26 Notification at Air Passenger and 
Cargo Facilities of Hazardous Materials Restrictions
    F. Section 175.30 Accepting and Inspecting Shipments
    G. Section 175.31 Reports of Discrepancies
    H. Sections 175.33 and 175.35 Shipping Papers and Notification 
of Pilot-in-Command
    I. Section 175.40 Keeping and Replacement of Labels
    J. Sections 175.75 and 175.85 Quantity Limitations and Cargo 
Location
    K. Section 175.78 Stowage Compatibility of Cargo
    L. Sections 175.79, 175.81, and 175.88 Inspection, Orientation 
and Securing of Packages of Hazardous Materials
    M. Section 175.90 Damaged Shipments
    N. Section 175.305 Self-Propelled Vehicles
    O. Sections 175.310 and 175.320 Transportation of Flammable 
Liquid Fuel Within Alaska or Into Other Remote Locations and Cargo 
Aircraft, Only Means of Transportation
    P. Section 175.501 Special Requirements for Oxidizers and 
Compressed Oxygen
    Q. Section 175.630 Special Requirements for Division 6.1 and 
Division 6.2 Material
    R. Sections 175.700, 175.701, 175.702, 175.703, 175.704, 175.705 
and 175.706 Transportation of Radioactive Materials Aboard Aircraft
III. Miscellaneous Proposals to the HMR
    A. Quantity Limits in Column (9) of the Hazardous Materials 
Table (HMT)
    B. Tire Assemblies
    C. Small Quantities, Limited Quantities, and Consumer 
Commodities
    D. Section 173.7
    E. Section 173.217
    F. Section 173.220
IV. Rulemaking Analysis and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. Regulation Identifier Number (RIN)
    I. Environmental Assessment
    J. Privacy Act

I. Background

    The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) 
govern the transportation of hazardous materials in commerce by all 
modes of transportation, including aircraft. Parts 172 and 173 of the 
HMR include requirements for classification and packaging of hazardous 
materials, hazard communication, and training of employees who perform 
functions subject to the requirements in the HMR. Part 175 contains 
requirements applicable to all aircraft operators transporting 
hazardous materials by air, and outlines exceptions allowing passengers 
and crew members to carry hazardous materials aboard aircraft under 
certain conditions. In addition, aircraft operators must comply with 
the FAA hazardous materials training requirements in 14 CFR parts 121 
or 135, as appropriate.
    In this final rule, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA), with the concurrence of the Federal Aviation 
Administration (FAA), is adopting amendments to part 175 and other 
sections of the HMR applicable to the transportation of hazardous 
materials by aircraft. These amendments will:
    (1) Modify or clarify requirements to promote compliance and 
enforcement;
    (2) Enhance the security of transportation of explosives by 
aircraft; and
    (3) Facilitate international commerce.
    On February 26, 2002, the Research and Special Programs 
Administration (RSPA)--the predecessor agency to PHMSA--published an 
advance notice of proposed rulemaking (ANPRM; 67 FR 8769) inviting 
public comments on how to improve the clarity of the HMR requirements 
for transporting hazardous materials by aircraft. We received 26 
comments in response to the ANPRM. On November 10, 2004, RSPA published 
a notice of proposed rulemaking (NPRM; 69 FR 76044) proposing specific 
changes to the HMR sections applicable to the transportation of 
hazardous materials by aircraft. On January 21, 2005, (70 FR 3179) in 
response to requests from interested parties, we extended the comment 
period on the NPRM until March 18, 2005.
    We received 24 comments addressing issues raised by the NPRM from 
the following: Air Line Pilots Association, International (ALPA); 
United Parcel Service, Inc. (UPS); Air Transport Association (ATA); 
FedEx Express; trade associations such as the International Association 
of Airport Duty Free Stores; individual air carriers; and others 
involved in the transportation of hazardous materials by aircraft. Most 
commenters were supportive of PHMSA(s efforts to revise part 175 in 
order to clarify certain requirements and make the part more user-
friendly.
    In this final rule, we are adopting most changes proposed in the 
NPRM. Relevant portions of the comments are discussed in the following 
sections of the preamble.

II. Section-by-Section Review

A. Sections 175.1 and 175.5 Purpose, Scope and Applicability

    Part 175 of the HMR prescribes requirements for all aircraft 
operators transporting hazardous materials in commerce in the United 
States. The requirements in part 175 are in addition to requirements 
contained in parts 171, 172, and 173 (see Sec.  175.1). Part 175 
applies to the acceptance for

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transportation, loading, and transportation of hazardous materials in 
any aircraft within the United States and aircraft of United States 
registry anywhere in air commerce (see Sec.  175.5). Part 175 includes 
exceptions from the requirements of the HMR for those aircraft under 
the direct, exclusive control of a government and not used for 
commercial purposes (see Sec.  175.5).
    In this final rule, we are modifying Sec.  175.1 to indicate part 
175 applies to any person who performs, attempts to perform, or is 
required to perform a function subject to the HMR, including:
    (1) Air carriers, indirect air carriers, and freight forwarders and 
their flight and non-flight employees, agents, subsidiary and contract 
personnel (including cargo, passenger and baggage acceptance, handling, 
loading and unloading personnel); and
    (2) Air passengers that carry any hazardous material on their 
person or in their carry-on or checked baggage.
    In its comments, the Council on Radionuclides and 
Radiopharmaceuticals, Inc. (CORAR) requests clarification of the 
applicability of part 175 to multi-modal ground carriers and their 
shippers who offer or transport packages by ground before or after 
transport by air. If part 175 applies to these entities, CORAR suggests 
this will subject a significant number of persons within the network of 
distribution of radiopharmaceuticals to these regulations (e.g. 
reporting deficiencies and training). CORAR also suggests PHMSA should 
provide additional time before the effective date of the final rule for 
the total impact to be assessed and for necessary actions such as 
training or implementation.
    Part 175 currently applies to all persons who accept and prepare 
shipments for air transportation, including persons who accept packages 
for air transportation. Ground handling crews, contracted employees, 
and air freight forwarders that accept packages for air transportation 
are subject to part 175. As are subsidiary companies formed by aircraft 
operators to build pallets and handle, load, and unload hazardous 
materials in air transportation. In this final rule, we are clarifying 
the applicability of the HMR to air shipments. All functions performed 
to prepare hazardous materials shipments for air transportation must be 
performed by a hazmat employee trained in accordance with the HMR, just 
as was required prior to this rulemaking. We do not feel more time is 
necessary to allow training to be conducted for hazmat employees 
currently covered under part 175.
    ATA indicates that the proposed applicability statement in Sec.  
175.1 is too broad and should be further defined to clarify its non-
applicability to employees whose functions are unconnected to air 
commerce, such as ground delivery personnel of a cargo air carrier who 
are subject to part 177. ATA suggests adding ``who are engaged in air 
operations'' to Sec.  175.1(b)(1) to clarify its applicability.
    We disagree. In a final rule published on July 28, 2005 (HM-223A 
(70 FR 43638)), we defined a ``person who offers or offeror'' to mean 
any person who performs or is responsible for performing any pre-
transportation function required by the HMR or who tenders or makes the 
hazardous material available to a carrier for transportation in 
commerce. As we said in HM-223A, a carrier is not an offeror when it 
performs a function as a condition of accepting a hazardous material 
for transportation in commerce or when it transfers a hazardous 
material to another carrier for continued transportation without 
performing a pre-transportation function. We also clarified there may 
be more than one offeror of a hazardous material or more than one party 
regulated by the HMR concerning a shipment and each offeror or such 
party is responsible only for the specific pre-transportation function 
it performs or is required to perform. In addition, we clarified each 
offeror or carrier may rely on information provided by a previous 
offeror or carrier unless the offeror or carrier knows or a responsible 
person acting in the circumstances and exercising responsible care, 
would have knowledge indicating the information provided is incorrect.
    Currently, some packaging, shipping, and freight forwarding 
facilities accepting hazardous materials for air transportation appear 
to believe they are not subject to the requirements in part 175 because 
they are not air carriers. However, the HMR require each person who 
offers, accepts, or transports packages by air to comply with all 
applicable regulatory requirements. Though an air carrier is 
responsible for compliance with the applicable requirements in part 
175, packaging, shipping, and freight forwarding facilities are also 
subject to the requirements in part 175 when accepting hazardous 
materials for air transportation.
    Therefore, in this final rule we are adopting the proposed 
provisions to clarify the requirements of the HMR applicable to the 
transportation of hazardous materials aboard aircraft apply to those 
persons who offer, accept, or transport hazardous materials in commerce 
by aircraft to, from, or within the United States. We are relocating 
Sec.  175.5(a)(1) to Sec.  175.1(b), relocating Sec.  175.5(a)(2) to 
Sec.  173.7(f), and eliminating Sec.  175.5(a)(3). In addition, we are 
modifying Sec.  175.1 to clarify part 175 applies to any person who 
performs, attempts to perform, or is required to perform any function 
subject to this subchapter, including--
    (1) Air carriers, indirect air carriers, and freight forwarders and 
their flight and non-fight employees, agents, subsidiary and contract 
personnel (including cargo, passenger and baggage acceptance, handling, 
loading and unloading personnel); and
    (2) Air passengers that carry any hazardous material on their 
person or in their carry-on or checked baggage are not exempted from 
the HMR in accordance with Sec.  175.10(a). On February 28, 2003 RSPA 
clarified the applicability of the HMR to airline passengers (see 
Notice No. 03-2; 68 FR 9735).

B. Section 175.3 Unacceptable Hazardous Materials Shipments

    No amendments were proposed or adopted for this section and no 
comments were received.

C. Section 175.10 Exceptions

    Section 175.10(a)(2) excepts certain hazardous materials required 
to be aboard an aircraft in accordance with applicable airworthiness 
requirements and operating instructions from the HMR. However, items of 
replacement for such materials and other company materials (COMAT) of 
an airline that are hazardous materials must be properly classed, 
described, marked, labeled, packaged, handled, stored, and secured in 
accordance with the HMR. These requirements are discussed in an 
advisory notice on COMAT published on December 13, 1996 (61 FR 65479). 
In Sec.  175.10(a)(2) the HMR provide the following limited exceptions 
for COMAT:
    (1) Items of replacement for installed equipment containing 
hazardous materials are subject to all relevant provisions of the HMR 
and are only excepted from the packaging requirements of the HMR if 
they are contained in specialized packaging providing at least an 
equivalent level of protection to that of the required packaging;
    (2) Aircraft batteries are excepted from the quantity limitations 
in Sec. Sec.  172.101 and 175.75(a); and
    (3) An aircraft tire assembly is not subject to the HMR if it is 
not inflated

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to a gauge pressure exceeding the maximum rated pressure for the tire.
    Other hazardous materials such as paint, chemicals for corrosion 
removal, automotive batteries, wastes, and engine-powered ground 
equipment containing fuels do not qualify for this limited relief.
    Section 175.10 also identifies other hazardous materials which are 
excepted from the HMR. The materials include: (1) certain personal 
items of passengers or crew members, such as toiletries, alcoholic 
beverages, and medicinal items; and (2) certain hazardous materials for 
special aircraft operations, such as avalanche control flights, aerial 
applications, and sport parachute jumping. We are reorganizing current 
exceptions in Sec.  175.10 into three different sections:
    (1) Sec.  175.8 covering operator equipment and items of 
replacement (including COMAT);
    (2) Sec.  175.9 covering special aircraft operations (crop-dusting, 
parachuting, etc.); and
    (3) Sec.  175.10 covering exceptions for passengers, crewmembers, 
and air operators.
    In addition, Sec.  175.8 clarifies the exceptions for aircraft 
spares (COMAT) is applicable only to an operator transporting its own 
equipment.
    Most commenters agree with the proposal to reorganize this section 
into three separate sections focused on COMAT, emergency response, and 
passenger related areas, respectively. Some commenters express concern 
to the exceptions for quantity limits on small arms ammunition, COMAT, 
batteries in wheelchairs, self-heating hair curlers, and self-defense 
spray. In addition, commenters requested clarification of the 
difference between carry-on vs. checked baggage. The comments submitted 
on those issues and our responses are discussed below.
1. Quantity Limits on Small Arms Ammunition
    The NPRM proposed to limit the amount of small arms ammunition 
allowed in checked baggage to 5 kg per person. Alaska Airlines, Alaska 
Air Carriers Association (AACA), and Customs and Border Protection, 
Port of Portland express concern regarding the quantity limits and 
clarification on ``other packagings'' authorized to carry small arms 
ammunition. Alaska Airlines and AACA state limiting the amount of small 
arms ammunition would result in serious economic harm to the tourist 
industry or hunters who travel to remote areas of the Alaska wilderness 
to hunt and fish, as well as those persons who live in remote areas who 
need small arms ammunition for their personal use. They do not support 
the proposed quantity limits on small arms ammunition. AACA suggests 
limiting it to 30 kg, a limit consistent with ORM-D packaging. AACA 
states, ``Many rural Alaskan residents rely on subsistence hunting as 
part of their lifestyle and to support their diet. They are regular 
consumers of small arms ammunition but Alaskan villages may typically 
have only one or two small retail stores with limited amounts of 
ammunition, and some villages do not have any regular options for 
purchase of small arms ammunition.'' AACA further states, ``Alaska's 
tourism industry also relies on air transportation of hunters to remote 
wilderness areas where there are no options for re-supply of 
ammunition. Recreational hunters often travel to remote locations for 
extended trips lasting from 7 to 21 days or more. Such hunters 
typically carry more than one kind of weapon and their combined 
ammunition for all weapon types can easily exceed the 5 kg limit.'' 
Alaska Airlines requests a blanket exemption for carrying these 
products and states, ``For Alaska to support the proposed rule as 
written, we must know we will be able to get a blanket exemption 
permitting our passengers at any of our United States locations to 
check in baggage the 50 pounds per person they have been doing safely 
for years (still employing the proven packaging requirements).'' ATA 
supports the 5 kg (11 pound) limit as proposed for small arms 
ammunition carried in checked baggage. ATA states ``this limit aligns 
the HMR with [the International Civil Aviation Organization Technical 
Instructions (TIs)] and places bounds on the previous ``personal use'' 
exception. Some carriers that serve hunting destinations may 
individually wish to seek higher limits through exemptions.''
    Though we agree with ATA international harmonization is beneficial, 
we are compelled to account for the concerns raised by Alaska Airlines 
and AACA. Therefore, after reevaluating our proposal to limit small 
arms ammunition to 5 kg (11 pounds), we have decided not to adopt the 
proposed small arms ammunition limit. In addition, we would like to 
note that even though we are not adopting this provision, Sec.  171.11 
provides air carriers with the option of following the ICAO Technical 
Instructions which limits the amount of small arms ammunition to 5 kg 
per passenger.
    Customs and Border Protection (CBP) suggests the proposed changes 
need further clarification as to what constitutes ``other packagings 
specifically designed to carry small amounts of ammunition.'' According 
to CBP, many Federal law enforcement officers are experiencing 
difficulties with inconsistent enforcement of these requirements. 
According to CBP:

    In the recent past TSA and airline policies on the transport of 
``duty'' ammunition by these officers have been inconsistent and 
non-uniform. TSA Screeners and airlines at one airport would allow 
an officer to transport his duty ammunition in the firearms magazine 
or clip (removed from the weapon). Upon the officers return trip 
from a different airport the local policy would require the 
ammunition to be transported in the original ``off the shelf'' 
styrofoam and cardboard box. This causes problems when an officer is 
suddenly advised he can not fly unless he has original type 
packaging material. The proposed changes to new Sec.  175.10(a)(8) 
do not clearly address this situation.

    In addition, CBP suggests magazines and clips are designed to 
safely transport ammunition and to protect the primer end of the round 
from impacts may result in accidental discharge; according to CBP, 
store packaging of ammunition in thin cardboard boxes with a styrofoam 
insert provides no such protection of the primers. CBP states, ``If a 
magazine or clip is not deemed suitable for transport then specifics on 
packaging for small amounts of ammunition must be clearly outlined to 
facilitate a uniform national interpretation of the standards.''
    The current requirement to securely package small arms ammunition 
for personal use in boxes or other packages specifically designed to 
carry ammunition provides a flexible packaging standard may be met 
using a variety of different packaging configurations. Similarly, the 
requirement for clips and magazines to be securely boxed is 
sufficiently descriptive to provide a variety of safe shipping options 
for shippers and carriers. Section 173.63 provides similar requirements 
for ``Cartridges, small arms'' and ``Cartridges, power devices'' 
shipped as ORM-D materials. Those provisions have an established 
history of safety and we are confident the adoption of proposed 
revisions to this paragraph will have similar results. In addition, we 
recognize the vast majority of persons transporting ammunition aboard 
an aircraft (i.e., sportsmen, law enforcement officers, military 
personnel, and competitive shooters) are knowledgeable about ammunition 
safety. Many will choose to transport and store their ammunition in 
hardened plastic cases intended to provide protection. Others will 
choose to transport their ammunition in the manufacture's original 
packaging, clips, or magazines--all of which can be safely

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transported provided they completely and securely enclosure the 
ammunition (see letter of interpretation dated April 12, 2005 from Mr. 
John Gale to Mr. Marc Joyeuse). The intention of this change is not to 
develop a new packaging for ammunition; it is to ensure a limited 
amount is transported safely, in secure packages that provide adequate 
protection from the conditions normally incident to transportation 
aboard an aircraft.
2. COMAT
    The NPRM clarified exceptions applicable to COMAT shipments apply 
only to an airline transporting ``its own'' replacement items. ATA asks 
PHMSA to delete the proposed change in new Sec.  175.8(b). ATA notes 
carriers have had reciprocal arrangements where they obtain replacement 
items from each others' inventories in order to expedite movement of 
the item to the location where it is needed. ATA states ``it is 
irrelevant for safety purposes whether ownership of the replacement 
item has actually passed to the carrier that transports it for use as a 
replacement.''
    We do not agree the exception for COMAT materials should be 
expanded to include the transportation of replacement parts by one 
airline for another airline. COMAT consists of spares and supplies 
intended for the repair or replacement of parts by the air carrier on 
which it is transported. Parts and supplies transported for other 
airlines must be transported in accordance with the HMR. To clarify the 
COMAT exception and the exception for installed equipment, in this 
final rule, we moved the exception from paragraph (b) of Sec.  175.8 to 
paragraph (a) and have replaced the proposed text of paragraph (a) with 
the text currently in Sec.  175.10(a)(1) and (a)(2).
    ATA also asks PHMSA to adopt a similar special provision to the 
proposed Special Provision A59 on tire assemblies for aircraft 
batteries. ATA suggests this will further align the HMR with ICAO 
Special Provision A51 for batteries, just as the proposed Special 
Provision A59 for tire assemblies aligns with ICAO Special Provision 
A59 for tire assemblies. ATA states ``this change will make it clear 
that carriers may continue their current practices regarding COMAT 
shipment of aircraft batteries.'' ATA's comment is beyond the scope of 
this rulemaking. We will consider the addition of a special provision 
in a future rulemaking as suggested by ATA.
    Regional Airline Association (RAA) requests clarification as to 
which exceptions apply to ``will not carry'' operators. For example, 
RAA suggests ``will not carry'' operators should be permitted to carry 
limited hazardous material COMAT if packaged in a manner acceptable to 
FAA and provided the operator's training and procedures are acceptable 
to FAA. RAA suggests air carriers incur a significant cost due to the 
current hazmat rules for ``will not carry'' operations. RAA also 
requests clarification of exceptions for passengers and crewmembers on 
``will not carry'' airlines.
    A ``will not carry'' operator is one who makes a business decision 
not to carry hazardous materials and indicates this decision in item 23 
of its operations manual, in accordance with 14 CFR Subpart G--Manual 
Requirements (Sec.  121.135). The FAA does not prohibit ``will not 
carry operators'' from transporting those materials excepted in Sec.  
175.10(a). The HMR does not apply to those materials transported in 
accordance with Sec.  175.10.
3. Batteries in Wheelchairs
    ATA requests revisions to certain aspects of the provisions in part 
175 applicable to non-spillable batteries. According to ATA, ``Most 
wheelchairs that carriers check as baggage or examine in recent years 
have non-spillable batteries; spillable batteries have become 
relatively rare. Wheelchair design has changed in ways that make it 
very difficult for carriers to comply with the existing visual 
inspection and battery disconnection requirements, which PHMSA proposes 
to carry over to the new section Sec.  175.10(a)(15).'' Therefore, ATA 
requested PHMSA modify the proposed Sec.  175.10(a)(15)(ii) and (iii) 
to recognize the current state of wheelchair technology.
    ATA further states:

    Visual inspection and disconnection of a non-spillable battery 
should not be required if both of the following are satisfied: (1) 
the wheelchair has a disconnect mechanism, and carrier personnel use 
that mechanism to disconnect the power source, and (2) carrier 
personnel are able to verify, without disassembling the chair to 
view the battery itself, that the battery is non-spillable. If a 
carrier cannot satisfy either of these requirements, it is 
appropriate to require visual inspection to determine whether the 
battery is non-spillable. If the carrier performs a visual 
inspection and verifies that the battery is non-spillable, the 
carrier should be permitted to use a disconnect mechanism if the 
chair has one, or to disconnect the battery if the chair does not 
have a disconnect mechanism. ATA agrees that spillable batteries 
pose both an electrical and chemical safety risk, and the current 
visual inspection and disconnection requirements for them should be 
maintained.

    ATA suggests these modifications will increase convenience for 
traveling disabled passengers by decreasing the time for carriers to 
return checked chairs to passengers. In addition, ATA suggests these 
modifications would decrease the damage to wheelchairs.
    ATA's comments are beyond the scope of this rulemaking. However, we 
will consider the revisions suggested in a future rulemaking.
4. Carry-On vs. Checked Baggage
    RAA requests further clarification of the terms ``carry-on 
baggage'' and ``checked baggage.'' According to RAA, ``there seems to 
be the implication that carry-on baggage is stowed in the passenger 
cabin and accessible to persons during flight and that checked baggage 
is stowed within a cargo hold; that is not the case for regional 
airplane operations.'' RAA asks PHMSA to clearly define these terms. As 
RAA states:

    Most ``carry-on'' bags on regional airplanes are stowed in the 
cargo hold; they are thoroughly checked by TSA as carry-on bags but 
are brought to the gate by the passengers and then loaded planeside 
into the cargo holds since there is no room for them in the 
passenger compartment. Placement of many carry-on bags that are 
taken to the gate for flights on very large airplanes (e.g. Boeing 
and Airbus) are also loaded planeside in the airplane's bulk cargo 
hold because they may not fit in an overhead compartment or there 
simply isn't enough room in the passenger compartment. We therefore 
see no distinction then between the two types of bags once they are 
placed onboard the airplane.

    The HMR do not include definitions for ``checked'' or ``carry-on'' 
baggage. In the absence of a definition in the HMR, a term has the same 
meaning as in a dictionary or other source. Thus, when the HMR refer to 
``checked baggage,'' the term means items of baggage offered to an 
airline for transportation in the hold of an aircraft inaccessible to 
the passenger during the flight for which the airline issues a claim 
check. When the HMR refer to ``carry-on baggage,'' the term means 
baggage for which no claim check is issued and can be carried into the 
passenger cabin of an airplane by a passenger or crewmember. These 
issues have not been addressed by this rulemaking; therefore, they are 
beyond its scope.
5. Self-heating Hair Curlers
    The HMR include an exception for hair curlers containing 
hydrocarbon gas allowing no more than one hair curler per passenger or 
crew member, provided the safety cover is securely fitted over the 
heating element. This section is clarified by including the North 
American term ``curling iron'' to describe hair curlers and by citing 
``butane'' as an example of a

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hydrocarbon gas. ATA suggests the self-heating hair curlers referred to 
in Sec.  175.10(a)(6) should include devices using liquid fuel as well 
as hydrocarbon gas fuel. We disagree. The current exception permits 
self-heating hair curlers to be transported in carry-on or checked 
baggage and includes curling irons using a hydrocarbon gas rather than 
electricity for power. This exception provides travelers with an option 
when the use of curlers heated by electricity is not an option. 
Allowing a flammable liquid burning heating source to be transported in 
carry-on or checked baggage poses an unnecessary flight safety risk.
6. Self-defense Spray
    ATA asks PHMSA to delete the proposed Sec.  175.10(a)(9) allowing 
the carriage of a self-defense spray in checked bags. According to ATA, 
this would harmonize the HMR with ICAO and IATA, which provide no 
exception for self-defense sprays in checked bags.
    We recognize the current HMR exception for self-defense spray is 
not consistent with ICAO and IATA. However, harmonization is not always 
appropriate. The exception is used frequently by passengers and 
crewmembers to ensure their safety at destination. We do not agree 
permitting one container of self-defense spray in checked baggage poses 
a flight safety risk. Passengers traveling internationally should note 
that many foreign countries do not allow self-defense spray to be 
transported in checked or carry-on luggage.
7. Reformatting of Exceptions in Sec.  175.10
    Based on the comments received, we are adopting the amendments to 
divide the current exceptions in Sec.  175.10 into three different 
sections: Sec. Sec.  175.8, 175.9, and 175.10. Each section will cover 
a category of exceptions. Section 175.8 will cover operator equipment 
and items of replacement (including COMAT); Sec.  175.9 will cover 
special aircraft operations (crop-dusting, parachuting, etc.); and 
Sec.  175.10 will cover exceptions for passengers, crewmembers, and air 
operators. Separating and categorizing these exceptions will make the 
regulations easier to use and minimize confusion concerning the 
applicability of certain paragraphs.
    New Sec.  175.8 incorporates the exceptions for operators covering:

--Aviation fuel and oil
--Hazardous materials required for airworthiness
--Oxygen supplied by the operator
--Dry ice used by the operator in food service
--Alcohol, perfume, and lighters carried for use or sale by the 
operator
--Spares (COMAT) for installed equipment
--Tire assemblies.

    New Sec.  175.8 also clarifies the exceptions for aircraft spares 
(COMAT) are applicable only to an operator transporting its own 
equipment. The paragraph on COMAT deletes the references to tires as 
this exception already exists in Sec.  173.307(a)(2). Also, current 
Sec.  175.10(a)(7) dealing with the stowage of oxygen cylinders is 
moved to the new Sec.  175.501 (See Sec.  175.8(b)(1)).
    We are revising Sec.  173.307(a)(2) to reference Sec.  175.8(b)(4) 
for tires transported by aircraft. Section 175.8(b)(4) deals with 
serviceable and undamaged tires versus unserviceable and damaged tires. 
It also requires tires and their valve assemblies to be protected from 
damage during air transport.
    New Sec.  175.9 incorporates exceptions for the following special 
aircraft operations:

--Aerial seeding, crop dusting, spraying, etc.
--Release devices, lights, and life-jackets for parachuting operations
--Smoke grenades, flares, pyrotechnics, affixed to aircraft during air 
shows
--Weather control, environmental protection, forest preservation, and 
avalanche control.

    Also added to this new section are exceptions for operations 
dedicated to firefighting and prevention, air ambulances, and search 
and rescue operations. We have edited references to FAA approvals 
throughout this section to reflect either the FAA Flight Standards 
District Office or the FAA Principal Operations Inspector, whichever is 
more appropriate. Emergency services not performed under dedicated 
operations must comply with the HMR. The exceptions in Sec.  175.9 are 
not for general transportation. In addition, applicable FAA operating 
specifications and Federal Aviation Requirements apply.
    New Sec.  175.10 contains exceptions for hazardous materials 
carried by passengers and crewmembers. These provisions have been 
edited for clarification. The most common edit was to put the name of 
the excepted article at the beginning of the sentence so it is easy to 
find.
    The following table lists the provisions in the current Sec.  
175.10(a) and indicates the new location of the provision as adopted in 
this final rule.

----------------------------------------------------------------------------------------------------------------
           Old paragraph 175.10(a)                                       New paragraph
----------------------------------------------------------------------------------------------------------------
(a)(1) aviation fuel and oil in tanks.......  175.8(a).
(a)(2) operator equipment, spares...........  175.8(a) and (b), 173.307(a)(2).
(a)(3) aerial seeding, crop dusting, etc....  175.9(a).
(a)(4) medicinal/toilet articles, 2.2         175.10(a)(1)--self defense spray (a)(9).
 aerosols.
(a)(5) small arms ammunition................  175.10(a)(8).
(a)(7) oxygen furnished by operator.........  175.8(b).
(a)(8) implanted medical devices............  175.10(a)(3).
(a)(9) parachuting devices..................  175.9(b).
(a)(10) safety matches/lighters.............  175.10(a)(2).
(a)(11) pyrotechnics affixed to aircraft....  175.9(c).
(a)(12) hazmat dispensed, environmental.....  175.9(e).
(a)(13) dry ice.............................  175.10(a)(10), 175.8(d).
(a)(14) transport incubator.................  175.10(a)(13).
(a)(15) alcohol, etc., carried by operator..  175.8(b).
(a)(16) duty free perfume, etc..............  175.10(a)(5).
(a)(17) alcoholic beverages.................  175.10(a)(4).
(a)(18) gas cylinders for mechanical limbs..  175.10(a)(12).
(a)(19) wheelchair, nonspillable battery....  175.10(a)(16).
(a)(20) wheelchair, spillable battery.......  175.10(a)(17).
(a)(21) hair curlers, butane................  175.10(a)(6).
(a)(22) mercurial barometer/thermometer.....  175.10(a)(14).
(a)(23) heat-producing articles.............  175.10(a)(15).

[[Page 14591]]

 
(a)(25) lifejacket with gas cartridges......  175.10(a)(11).
(a)(26) small mercury thermometer...........  175.10(a)(7).
(a)(27) lithium batteries and cells.........  175.10(a)(17).
----------------------------------------------------------------------------------------------------------------

    Section 175.10(a)(1) is edited to change the maximum net quantity 
of inner packaging for medicinal/toilet articles from 473 ml to 500 ml 
for consistency with other even metric quantities. Self-defense spray 
has been reassigned to its own paragraph since it has little in common 
with medicinal and toilet articles.
    Section 175.10(a)(2) has been revised to clarify that safety 
matches and lighters may be carried on one's person or in carry-on 
baggage. This change stems from a February 13, 2003 memorandum from Mr. 
Edward Mazzullo to Mr. William Wilkening addressing the current 
allowance for safety matches or a lighter to be carried on one's 
person. The memo clarifies the phrase ``one's person'' to include the 
passenger and his carry-on baggage.
    Section 175.10(a)(6) is clarified by including the North American 
term ``curling iron'' to describe hair curlers and by citing ``butane'' 
as an example of a hydrocarbon gas.
    Section 175.10(a)(8) is the new location for the small arms 
ammunition exception. This sub-paragraph is clarified to indicate 
ammunition clips and magazines must be securely boxed.
    Section 175.10(a)(9) is the new location for the self-defense spray 
exception. It had previously been included in the quantity limits for 
medicinal and toilet articles. In its previous location the exception 
was difficult to locate; the move to this subparagraph makes it more 
visible.
    Section 175.10(a)(10) is the new location for the dry ice 
exception. The exception, currently located in Sec.  175.10(a)(13), 
includes two different net quantities allowed for dry ice--2 kg (4.4 
pounds) and 2.3 kg (5 pounds)--depending on how it is carried. In 
addition, it is unclear whether the marking requirements are to be 
applied only to checked baggage or if they must be applied to both dry 
ice in cargo and checked baggage. The new subparagraph maintains the 
current quantities by allowing 2.3 kg (5 pounds) to be carried in 
checked baggage and 2 kg (4.4 pounds) to be carried in carry-on 
baggage. In addition, the new subparagraph clarifies the marking 
requirements are for checked baggage only. We had proposed to limit the 
amount of dry ice in checked and carry-on baggage to 2.0 kg (4.4 
pounds); however, due to international changes we decided to maintain 
the current allowance. The exception for dry ice used in food service 
by the operator is moved to Sec.  175.8(b)(2). The 2.3 kg (5 pounds) 
exception for dry ice transported as cargo is now incorporated in Sec.  
173.217. However, the maximum amount of dry ice allowed on board a 
flight is established by airworthiness requirements and operating 
specifications. FAA's Advisory Circular 91-76 dated September 30, 2004 
outlines currently authorized limits.
    Section 175.10(a)(11) is modified. Self-inflating life jackets may 
be carried with two cartridges of CO2 (or other suitable 
Division 2.2 gas), as adopted in a final rule issued under docket HM-
215E (68 FR 44991; July 31, 2003).
    Section 175.10(a)(15) is clarified by replacing the term 
``underwater torch'' with the North American term ``diving lamp''.
    Section 175.10(a)(17) is replaced. Old Sec.  175.10(a)(27) was 
adopted in an interim final rule published under Docket HM-224E (69 FR 
75207; December 15, 2004). The new section provides an exception for 
lithium batteries in consumer electronic and medical devices (watches, 
calculators, cameras, cellular phones, lap-top computers, camcorders, 
and hearing aids, etc.) containing lithium cells or batteries, and 
spare lithium batteries and cells for these devices, when carried by 
passengers or crew members in carry-on or checked baggage for personal 
use. In addition, each installed or spare battery must conform to the 
following:
    (1) The lithium content of the anode of each cell, when fully 
charged, is not more than 5 g; and
    (2) The aggregate lithium content of the anodes of each battery, 
when fully charged, is not more than 25 g.
    New Sec.  175.10(b) includes the provisions adopted in HM-215E 
authorizing carriage of these excepted hazardous materials in passenger 
baggage unintentionally separated from the flight carrying the 
passenger (misrouted).

D. Section 175.20 Training

    Section 175.20 requires aircraft operators to comply with all 
applicable requirements in Parts 106, 171, 172, and 175. In addition, 
hazmat employers must ensure all hazmat employees receive training in 
accordance with Part 172. Initial training under the HMR must be 
conducted within 90 days after employment begins or a change in the 
employee's job function. Recurrent training must be conducted at least 
every three years. Section 175.20 also refers to the FAA's hazardous 
materials training requirements in 14 CFR 121.401, Part 121 Subpart Z, 
135.323, and Part 135 Subpart K (as amended in FR Vol. 70, No. 194; 
published October 7, 2005). The FAA requirements prescribe additional 
training for air carriers. Aircraft operators may substitute training 
provided in accordance with 14 CFR for training required by Part 172 to 
the extent that the training provided under 14 CFR satisfies 
requirements in Part 172.
    A ``hazmat employee'' is defined in Sec.  171.8 to mean a person 
``who in the course of employment performs functions that directly 
affect hazardous materials transportation safety.'' This does not 
include every person who works around an area where, for example, 
hazardous materials are loaded, unloaded, handled, and stored. The 
employee's functional relationship to hazardous materials 
transportation safety, rather than incidental contact with hazardous 
materials in the workplace, is the primary factor in determining 
whether an individual is a ``hazmat employee.''
    We received no comments regarding the proposed revision to this 
section; therefore, it is adopted as proposed in the NPRM. This final 
rule thus clarifies the HMR (including training) apply to any person 
who performs, attempts to perform, or is required to perform any 
function subject to this subchapter, including air carriers, indirect 
air carriers and freight forwarders and their flight and non-flight 
employees, agents, subsidiary and contract personnel that accept 
hazardous materials for air transportation.

E. Sections 175.25 and 175.26 Notification at Air Passenger and Cargo 
Facilities of Hazardous Materials Restrictions

    The HMR currently require notices to be posted at air passenger 
facilities and cargo facilities. The notices contain specific language 
warning offerors of cargo and passengers of the requirements applicable 
to offering or carrying hazardous materials and the penalties for 
failure to comply with

[[Page 14592]]

those requirements. Section 175.25 requires aircraft operators to 
display notices warning passengers against carrying hazardous materials 
aboard aircraft in their checked or carry-on luggage and on their 
persons, and prescribes the information to be contained in each notice. 
Section 175.26 requires each person who engages in the acceptance of, 
or the transportation of, cargo by aircraft, to display notices in 
prominent locations at each facility where cargo is accepted. Display 
of notices are not required at unattended locations if there is a 
general notice prominently displayed advising customers shipments of 
hazardous materials at the location are prohibited. In addition, 
notices are not required to be displayed at a shipper's facility where 
packages of hazardous materials are accepted.
    In a final rule published July 10, 1998 (63 FR 37454), we revised 
Sec. Sec.  175.25 and 175.26 to reflect changes in the statutory 
citations and penalties, and to provide carriers greater flexibility. 
These notices are intended to inform customers of hazardous material 
identification procedures, the requirement to comply with the HMR, and 
the penalties for failure to comply with the HMR. Therefore, signs must 
be in prominent view of passengers and persons who accept or offer 
cargo. Sections 175.25 and 175.26 also list the minimum information 
required to be contained on the notice.
    In some cases, cargo terminals are co-located with passenger 
terminals. To make it easier for the industry to comply with signage 
requirements, FAA and RSPA stated in a final rule published September 
27, 1993 (58 FR 50496) display of separate passenger and cargo notices 
is not required at these passenger terminals.
    We did not propose any amendments to the signage requirements in 
Sec. Sec.  175.25 and 175.26. However, in an effort to further clarify 
these requirements and provide consistency with Sec.  175.26, we did 
propose to revise the terminology in Sec.  175.25 by changing ``each 
aircraft operator'' to ``each person.''
    ATA supports PHMSA's efforts to educate shippers and the public 
about hazardous materials restrictions. For clarity, ATA suggests 
revising the opening sentence of Sec.  175.25 to add the word ``air,'' 
as follows: ``Each person who engages in for-hire air transportation of 
passengers * * *'' We agree the suggested change provides further 
clarity and are adopting it in this final rule. We will also continue 
to work with the airlines and the airports to ensure the passengers and 
shippers of cargo aboard aircraft are aware of the dangers and the 
regulations for shipping hazardous materials.

F. Section 175.30 Accepting and Inspecting Shipments

    Section 175.30 prohibits any person from carrying a hazardous 
material aboard an aircraft unless the package is inspected by the 
aircraft operator to ensure the integrity of the package has not been 
compromised. In response to a request from an airline to clarify its 
hazardous material acceptance responsibility, we issued a formal 
interpretation on the acceptance of hazardous materials on June 4, 1998 
(63 FR 30411). We stated a carrier's acceptance and transportation of 
hazardous materials can involve several different situations. For 
example, a shipment may be ``declared'' by the shipper to contain 
hazardous materials by shipping documentation, marking, labeling, or 
other means. In such cases, the shipment must comply with all 
applicable HMR requirements, including the use of an authorized 
packaging. Conversely, an ``undeclared'' or ``hidden'' shipment is a 
shipment of hazardous materials not declared, intentionally or 
unintentionally, by the offeror to contain hazardous materials, and 
there is no attempt to comply with the HMR.
    The responsibility to reject any shipment of hazardous materials 
not fully in full compliance with the HMR stems from the authority in 
49 U.S.C. 5123 to assess a civil penalty against any person who 
``knowingly violates'' any requirement in the HMR. Section 5123(a) 
provides a person ``acts knowingly'' when: (A) the person has actual 
knowledge of the facts giving rise to the violation; or (B) a 
reasonable person acting in the circumstances and exercising reasonable 
care would have that knowledge. A carrier knowingly violates the HMR 
when the carrier accepts or transports a hazardous material with actual 
or constructive knowledge that a package contains a hazardous material 
not properly packaged, marked, labeled, or described on a shipping 
paper as required by the HMR. To ignore readily apparent facts 
indicating either: (1) A shipment declared to contain a hazardous 
material is not properly packaged, marked, labeled, placarded, or 
described on a shipping paper; or (2) a shipment actually contains a 
hazardous material governed by the HMR despite the fact it may not be 
properly marked, labeled, placarded, or described on a shipping paper 
as containing a hazardous material, would not represent reasonable 
care.
    Section 175.30(d) excepts materials classed as ORM-D from the 
inspection requirements. In the NPRM, we proposed to remove this 
exception. Materials reclassed as ORM-D should be subject to the 
inspection requirements of Sec.  175.30(b) and (c) to ensure all 
packages containing hazardous materials are in proper condition for 
transportation aboard aircraft.
    ATA; UPS; Association of Hazmat Shippers (AHS); and FedEx Express 
ask PHMSA to leave the exception provided in Sec.  175.30(d) for 
consumer commodities and not remove it as proposed. ATA states removing 
the exception would result in inconsistency with the ICAO acceptance 
procedures in part 7;1.1.1(b) for similar shipments under Packing 
Instruction 910. ATA suggests PHMSA provided no safety justification 
for removing the exception, noting the break down and rebuilding a unit 
load device (ULD) containing ORM-D materials provides more opportunity 
to damage those packages. In addition, ATA suggests removal of the 
exception could lead to international consistency and competitive 
issues where foreign operators will offer their customers expedited 
processing while U.S. carriers will have to spend more time processing 
their packages individually. UPS and AHS also comment there is no 
incident history to justify removal of the exception and the increased 
handling could lead to greater costs for U.S. operators and increased 
damages during handling.
    We disagree with the commenters and are adopting the proposal to 
remove the exception in Sec.  175.30(d) for materials classed as ORM-D. 
Today's transportation environment also warrants inspection of 
materials reclassed as ORM-D to ensure the safety and security of the 
hazardous material shipment. Inspection is one of the only means 
available to ensure packages containing hazardous materials are in 
proper condition for transportation aboard aircraft. In addition, the 
change is consistent with international regulations. International 
regulations do not provide an ORM-D hazard class; therefore, 
international transportation of ORM-D materials is not permissible.
    ATA, UPS, AHS, FedEx Express, and Express.net Airlines, LLC 
request, for international consistency, PHMSA remove the proposed 
requirement for an operator to inspect overpacks to determine ``that a 
statement indicating the inside packages comply with the prescribed 
specifications appears on the outside of the overpack when 
specification packagings are

[[Page 14593]]

prescribed.'' ATA commented under HM-215G, final rule, ICAO Technical 
Instructions no longer require such a statement on overpacks. ICAO 
Technical Instructions require overpacks be marked ``Overpack.'' The 
commenter stated the proposed inspection requirement under this rule 
would only create confusion in international shipments.
    We agree, the text should be revised to be consistent with the 
final rule adopted under docket HM-215G (69 FR 76044; December 20, 
2004). Therefore, the proposed text is altered to require the operator 
to ensure the word ``OVERPACK'' appears on the outside of the overpack 
when specification packages are required. Note, however, the use of a 
statement indicating the inside packages comply with prescribed 
specifications is also authorized until October 1, 2007.
    Express.net Airlines requests a revision to Sec.  175.30(e)(1)(iii) 
to explain whether the ``one package'' limitation refers to a one cargo 
aircraft only package contained with other shipments acceptable on 
passenger aircraft, or the ``one package'' refers to the limitation 
only one package (total) may be overpacked.
    We believe proposed Sec.  175.30(e)(1)(iii) clearly indicates the 
operator is excepted from taking steps to establish an overpack does 
not contain a package bearing the ``CARGO AIRCRAFT ONLY'' label if the 
overpack contains a single package. The exception refers to a package, 
not a single package labeled with the ``CARGO AIRCRAFT ONLY'' label. 
Therefore, we are not altering the proposed language.

G. Section 175.31 Reports of Discrepancies

    Section 175.31 requires a person who discovers a discrepancy after 
acceptance of a package of hazardous materials (as defined by Sec.  
175.31(b)) to notify the nearest FAA Civil Aviation Security Field 
Office (CASFO) by telephone ``as soon as practicable,'' and provide 
certain information. This requirement permits early investigation and 
intervention to determine the cause for failure to either properly 
declare or prepare a hazardous materials shipment. A May 27, 1980, 
final rule under Docket HM-168 (45 FR 35329), adopted requirements in 
49 CFR 175.31 for reporting discrepancies. In the preamble to the final 
rule, we stated:

    A shipment containing a hazardous material must be offered to 
the carrier in accordance with the regulations. An offering occurs 
when (1) the package is presented, (2) the shipping paper is 
presented, (3) the certification is executed, and (4) the transfer 
of the package and shipping paper is completed with no further 
exchange (written or verbal) between the shipper and aircraft 
operator, as usually evidenced by the departure of the shipper. At 
this point, it is clear the operator has accepted the shipment and 
the shipper has removed himself from a final opportunity to take 
corrective action that would preclude a violation of the HMR 
relative to transportation of hazardous materials aboard aircraft * 
* * the requirement which has been adopted [in this final rule] 
limits required reporting to shipment discrepancies which are 
discovered [subsequent to] acceptance of the shipment for 
transportation and limits `reportable' discrepancies to those 
discrepancies which are not detectable as a result of proper 
examination by a person accepting shipment under the acceptance 
criteria of Sec.  175.30. This notification requirement will 
facilitate the timely investigation by FAA personnel of shipment 
discrepancies involving situations where inside containers do not 
meet prescribed packaging or quantity limitation requirements and 
where packages or baggage are found to contain hazardous materials 
after having been offered and accepted as other than hazardous 
materials.

    We proposed the addition of Sec.  175.31(a)(6) to require the 
address of the shipper or person responsible for the discrepancy, if 
known, to be reported by the air carrier. Currently, Sec.  175.31(b)(2) 
requires air operators to notify FAA, in part, when baggage subsequent 
to its offering and acceptance is found to contain undeclared hazardous 
materials. When security screeners suspect checked baggage may contain 
an unauthorized hazardous material, they bring the item to the 
attention of the air carrier so the air carrier can make a 
determination if the item is authorized to be in the baggage. If the 
air carrier determines the item constitutes a discrepancy, it must 
notify the FAA.
    In comments to the NPRM, ALPA expresses its disappointment with no 
amnesty program being proposed despite broad support for such a 
program. ALPA states if an amnesty program is considered in the future 
it should apply to carriers when they discover an undeclared hazardous 
material and not to shippers. ALPA stated, ``There is a clear 
difference in culpability between a carrier that fails to discover an 
undeclared shipment during or after acceptance and the entity that 
prepares and offers that shipment.''
    Though we did not propose an amnesty program under this rulemaking, 
as the primary agency delegated by the Secretary of Transportation to 
inspect and enforce the HMR in the air mode the FAA issued Advisory 
Circular 121-37, VOLUNTARY DISCLOSURE REPORTING PROGRAM--HAZARDOUS 
MATERIALS, on January 31, 2006. Holders of certificates under 14 CFR 
parts 119 and 125 and foreign air carriers issued operations 
specifications under 14 CFR part 129 who accept hazardous material for 
transport by air may voluntarily disclose to the FAA violations of 
certain hazardous materials regulations under this voluntary disclosure 
reporting program. This applies to violations of 49 CFR part 175, which 
cover certain reporting, training, acceptance, loading, unloading, 
handling, and stowage requirements. The voluntary disclosure reporting 
program applies only when the air carrier discovers an apparent 
violation and notifies the FAA HAZMAT Branch Manager before it learns 
of the apparent violation.
    In its comments, CORAR states proposed notification of any 
discrepancy without clarification implies simple discrepancies 
resulting from unintentional human error, such as a missing or 
illegible TI value on a Class 7 package label, would be subject to 
reporting. CORAR states, ``[E]xpanding of resources required to make 
and respond to such a report is not warranted, particularly when the 
proposed rule also requires that the report include the address of the 
shipper or person responsible for the discrepancy, if known, by the air 
carrier.'' CORAR disagrees with the proposal to add the requirement for 
the address of the shipper or person responsible for the discrepancy, 
if known, to be supplied by the air carrier. CORAR states, ``It seems 
obvious that any investigation resulting from the report of a 
discrepancy will include a review of shipping papers, air bills and 
package labels that will provide the name of the consignor.'' CORAR 
further states, ``Any conclusion of fault or root cause should be the 
responsibility of the investigator and not the reporting party in order 
to avoid any wrongful allegation or potential shifting of 
accountability from another party with a vested interest in hazardous 
materials distribution.''
    ATA suggests the volume of items now being removed from baggage has 
made it very burdensome for carriers to file discrepancy reports under 
the current Sec.  175.31 procedures. ATA states it strongly opposes the 
proposal to require the passenger address, if known, suggesting there 
must be broader and more effective and efficient means of public 
outreach by FAA than requiring carriers to research and supply 
thousands of addresses on commonplace items, e.g., lighters, spray 
starch, oversized cans of hairspray, which FAA might or might not use 
in

[[Page 14594]]

an individual outreach letter. ATA states, ``[R]esearching addresses 
could add to the already considerable burden of filing a report.'' 
According to ATA, ``To require carriers to provide addresses, if known, 
on all reports would only be providing considerable information that 
the FAA is unlikely to use.'' Additionally, ATA states, ``In the 
carrier's view, individual outreach would be appropriate only in cases 
where a passenger was carrying hazardous materials that pose more 
significant safety risks, such as fireworks.''
    We appreciate the points made by CORAR and ATA regarding the 
proposed requirement to include the address of the person responsible 
for the discrepancy in the discrepancy report. The address must only be 
included if it is known by the operator. In this final rule, we are 
adopting the proposed addition to Sec.  175.31(a)(6) to require the 
address of the shipper or person responsible for the discrepancy, if 
known, by the air carrier. Currently, Sec.  175.31(b)(2) requires air 
operators to notify FAA, in part, when baggage subsequent to its 
offering and acceptance, is found to contain undeclared hazardous 
materials. When security screeners suspect checked baggage may contain 
an unauthorized hazardous material, they bring the item to the 
attention of the air carrier accepting the baggage so the air carrier 
can make a determination if the item is authorized to be in the 
baggage. If the air carrier determines the item constitutes a 
discrepancy, it must notify the FAA. Since January, 2002, the FAA has 
received more than 44,000 discrepancy reports from air carriers in 
accordance with the Sec.  175.31 reporting requirements. FAA and PHMSA 
have implemented numerous outreach initiatives intended to educate the 
public about the HMR. For example, PHMSA and FAA have: (a) Issued 
safety notices in the Federal Register; (b) deployed informational 
kiosks at major airports to alert passengers about the types of items 
not authorized to be transported in luggage; and (c) conducted over 
1,000 outreach presentations each year. Despite these outreach efforts, 
the number of hazmat discrepancies reported by air carriers from 
checked baggage continue to grow. Therefore, PHMSA and FAA believe a 
more targeted outreach and education campaign is necessary. With the 
advent of universal checked baggage security screening, the FAA has 
developed an electronic system that prioritizes the discrepancy reports 
received based on risk. Although many discrepancy reports include 
address information, most do not. When the passenger's or shipper's 
address information is included with a discrepancy report involving 
higher risk hazardous materials such as fireworks, gasoline, propane, 
etc, a manually prepared Letter of Investigation is generally sent to 
the alleged violator in an attempt to gain more information. When the 
relevant address information is included with a discrepancy report 
involving lesser risk hazardous materials, an outreach notice is 
generated and mailed to the responsible passenger. Since April 2005, 
the FAA has mailed over 10,000 of these automated outreach notices to 
airline passengers. The address of the passenger or shipper thought to 
be responsible for a reported discrepancy is a crucial element in the 
successful resolution of these events.
    As an interim measure, the FAA has experienced some success 
obtaining addresses as part of discrepancy reports by using subpoena 
authority contained in 49 U.S.C. Section 5121 and Part 13 of the 
Federal Aviation Regulations, 14 CFR part 13. This experience suggests 
many cases involve air carriers who know the relevant passenger's 
address information.
    CORAR also requests further clarification of the phrase ``as soon 
as practicable'' for reporting and asks us to establish a timeframe for 
reporting such as immediate, 24 hour, 30 days, etc. For purposes of 
Sec.  175.31, the phrase ``as soon as practicable'' means without undue 
delay. The person is not required to stop what they are doing and 
contact FAA immediately.

H. Sections 175.33 and 175.35 Shipping Papers and Notification of 
Pilot-in-Command

    In the NPRM, we proposed to consolidate all the requirements 
related to shipping papers (Sec.  175.35), their retention for two 
years after the material is accepted by the initial carrier (Sec.  
175.30(a)(2)), and the notification to pilot-in-command (NOPIC) into 
one section--Sec.  175.33, entitled ``Shipping papers and notification 
of pilot-in-command.''
    ATA states Sec.  175.33(b)(1)(i)(ii) requires extraneous and 
unnecessary information on a NOPIC. ATA asserts there is no safety-
related reason for a NOPIC to include information about outer 
packaging. According to ATA, the requirement was added to shipping 
certification in the HM-215G final rule, but is not required in a NOPIC 
under ICAO Technical Instructions 7.4.1.1(e) and (f). ATA states, 
``[T]hese elements have grown unintentionally as supplemental shipping 
paper requirements have been added to both U.S. and international 
regulations.'' ATA further states, ``Inclusion of details such as the 
EX number for airbags (but not for other explosives when the detail is 
marked on a package or shipping papers), State exemptions, or similar 
information cross-referenced to the shipping papers is irrelevant, and 
possibly confusing to the flight crew and/or emergency responders.'' 
ATA suggests these requirements should be discussed with DOT, FAA, 
National Transportation Safety Board and international authorities as 
appropriate. FedEx Express states it does not believe it is the intent 
of PHMSA to require a description of the outer package on the NOPIC 
which provides no safety benefit and could delay or keep emergency 
response person