Hazardous Materials; Miscellaneous Amendments, 4699-4720 [E8-1211]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Rules and Regulations]
[Pages 4699-4720]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1211]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 175, 177, 178, 180

[Docket No. PHMSA-05-21812 (HM-218D)]
RIN 2137-AE10


Hazardous Materials; Miscellaneous Amendments

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

ACTION: Final rule.

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

SUMMARY: PHMSA is amending the Hazardous Materials Regulations to 
update, clarify or provide relief from certain requirements governing 
the classification, packaging, or labeling of hazardous materials 
transported in commerce. Among other provisions, PHMSA is adopting a 
new proper shipping name and identification number for fuel blends 
composed of ethanol and gasoline. In addition, PHMSA is updating 
references to consensus standards, revising and clarifying certain 
hazard communication requirements, and clarifying transportation 
requirements applicable to dry ice, detonator assemblies, and 
explosives. PHMSA is also expanding exceptions from regulation for 
small quantities of hazardous materials.

DATES: Effective date: The effective date of these amendments is 
October 1, 2008.
    Incorporation by Reference Date: The incorporation by reference of 
certain publications listed in these amendments is approved by the 
Director of the Federal Register as of October 1, 2008.
    Voluntary Compliance: Compliance with the requirements adopted 
herein is

[[Page 4700]]

authorized as of January 28, 2008. However, persons voluntarily 
complying with these regulations should be aware that appeals may be 
received and as a result of PHMSA's evaluation of these appeals, the 
amendments adopted in this final rule could be subject to further 
revision.

FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite, Office of 
Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Background

    This final rule adopts various updates and amendments to the 
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) based on 
PHMSA initiatives and petitions for rulemaking submitted in accordance 
with 49 CFR 106.95. Most of the amendments, as detailed below, are 
intended to provide relief to industry by eliminating, revising, 
clarifying, or relaxing regulatory requirements.
    This final rule also adds a new entry to the Hazardous Materials 
Table (HMT) for ethanol and gasoline blends with more than 10 percent 
alcohol (e.g., E85). This new entry--``Ethanol and gasoline mixtures or 
Ethanol and motor spirit or Ethanol and petrol mixture, with more than 
10% ethanol, 3, UN 3475, II,''--coupled with a revision to the entry--
``Gasohol gasoline mixed with ethyl alcohol, with not more than 20 
percent alcohol, 3, NA1203, II''--will enhance the effectiveness of 
hazard communication and response by aligning the classification scheme 
with emergency response protocols. Because these protocols vary based 
on the concentration of ethanol (or ``ethyl alcohol'') in a gasoline 
mixture, differentiating in the classification of blends is critical to 
effective hazard communication. To minimize regulatory cost and burden, 
these requirements will not become effective for two years; however, 
voluntary compliance is permitted immediately.
    In response to two petitions for rulemaking, we are adopting 
expanded small quantity exceptions for Packing Group II and III 
materials in Class 3, Division 4.1, Division 4.2, Division 4.3, 
Division 5.1, Division 6.1, Class 8, and Class 9. This exception is 
expected to yield annual savings of about $1 million, with no adverse 
safety impact.
    Also in this final rule, we are:
    (1) Updating provisions incorporating consensus standards issued by 
the Chlorine Institute and the Compressed Gas Association (see 
Sec. Sec.  171.7, 173.301, 178.337-9, and 178.337-10).
    (2) Adding a definition for ``household wastes'' to clarify the 
current exception in the HMR for transportation of such materials (see 
Sec. Sec.  171.8, 173.12 and 173.134).
    (3) Revising the HMT to harmonize certain entries with 
international standards (see Sec.  172.101) by removing, adding, and 
revising certain proper shipping names.
    (4) Revising certain hazard communication provisions to address 
shipping paper requirements for marine pollutants, marking requirements 
for limited quantities, proper shipping name markings on packages, and 
labeling of intermediate bulk containers (IBCs) (see Sec. Sec.  
172.203, 172.315, and 172.406).
    (5) Clarifying requirements applicable to the transportation of dry 
ice on aircraft, detonator assemblies, and packagings authorized for 
the transportation of certain explosives (see Sec. Sec.  173.24, 
173.61, 173.62, 173.217, 175.30, and 175.900).
    (6) Clarifying that a shipper must use a carrier with a safety 
permit to transport hazardous materials for which safety permits are 
required as specified under the Federal Motor Carrier Safety 
Regulations (see Sec.  173.22).
    (7) Clarifying segregation requirements for hazardous materials 
transported by motor carrier (see Sec.  177.848).

II. Notice of Proposed Rulemaking

    We published a notice of proposed rulemaking (NPRM) under this 
docket on September 26, 2006 (71 FR 55757). The comment period for the 
NPRM closed on November 24, 2006. PHMSA received comments from the 
following individuals, companies, and organizations:
    (1) Lawrence Laude (Laude; PHMSA-05-21812-3);
    (2) Hydro-Test Products Inc. (Hydro-Test; PHMSA-05-21812-4);
    (3) Henry Hsiu (Hsiu; PHMSA-05-21812-5);
    (4) Archer Daniels Midland Company (ADM; PHMSA-05-21812-6);
    (5) Regulatory Resources Inc. (RRI; PHMSA-05-21812-7);
    (6) United Parcel Service (UPS; PHMSA-05-21812-8);
    (7) Florida Power and Light Company (FPL; PHMSA-05-21812-9);
    (8) Laboratory Corporation of America (LabCorp; PHMSA-05-21812-10);
    (9) Krista Duncan (Duncan; PHMSA-05-21812-11);
    (10) Petroleum Marketers Association of America (PMAA; PHMSA-05-
21812-12);
    (11) Health and Personal Care Logistics Conference, Inc. (H&PCLC; 
PHMSA-05-21812-13);
    (12) Association of Hazmat Shippers, Inc. (AHS; PHMSA-05-21812-14);
    (13) Veolia Environmental Services Technical Solutions L.L.P.C. 
(Veolia; PHMSA-05-21812-15);
    (14) National Tank Truck Carriers (NTTC; PHMSA-05-21812-16);
    (15) Renewable Fuels Association (RFA; PHMSA-05-21812-17);
    (16) American Trucking Associations (ATA; PHMSA-05-21812-18);
    (17) Petroleum Marketers and Convenience Stores of Iowa (PMCI; 
PHMSA-05-21812-19);
    (18) Shell Chemical LP (Shell Chemical; PHMSA-05-21812-20); and
    (19) BWXT Pantex, LLC (BWXT Pantex; PHMSA-05-21812-21).
    Commenters were generally supportive of PHMSA's efforts to update, 
clarify, or provide relief from certain regulatory requirements. Many 
of the proposals in the NPRM were either fully supported by commenters 
or received no comment; these amendments are adopted as proposed. Each 
of the proposals, with corresponding comments, is discussed in more 
detail below.

III. Section-by-Section Review

A. Gasoline/Ethanol Fuel Blends (Sec. Sec.  171.14, 172.101, 172.102, 
172.336)

    Alternative fuels have been produced and used on a small scale for 
decades, driven by environmental, economic, and energy security 
concerns. The most common of these fuels, designated E85, is being used 
and transported in increasing volumes in the United States. A blend of 
85 percent ethyl alcohol (ethanol) and 15 percent petroleum (gasoline), 
E85 poses unique hazards that must be communicated and understood 
immediately in the case of a transportation incident. E85 and other 
fuel blends with high ethanol concentration are polar/water-miscible 
flammable liquids (i.e., they mix with water) and will degrade the 
effectiveness of fire-fighting foam that is not alcohol-resistant.
    The 2004 Emergency Response Guidebook (ERG2004) instructs emergency 
responders to use different fire extinguishing materials based on the 
relative concentration of ethanol in a blended fuel. ERG 2004 refers to 
Guide 127 (Flammable Liquids Polar/Water-Miscible), which specifies the 
use of alcohol resistant foam for response to incidents involving 
Alcohols, n.o.s., 3, UN1987, or Denatured alcohol, 3, NA1987. For 
incidents involving blends of gasoline and ethanol (typically

[[Page 4701]]

transported under the shipping descriptions ``Flammable liquid, n.o.s., 
(ethanol, gasoline), 3, UN1993'', and ``Gasohol, 3, NA1203''), ERG 2004 
refers to Guide 128 (Flammable Liquids Non-Polar/Water-Immiscible). 
Guide 128 specifies the use of regular foam but contains the following 
warning: ``CAUTION: For mixtures containing a high percentage of an 
alcohol or polar solvent, alcohol-resistant foam may be more 
effective.''
    To help emergency responders utilize the most effective emergency 
response procedures for incidents involving fuel blends composed of 
ethanol (or ``ethyl alcohol'') and gasoline in various concentrations, 
we proposed in the NPRM to add a new proper shipping description, 
``Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol 
and petrol mixture, with more than 10% ethanol, 3, UN3475, II'' to the 
HMT. This new HMT entry is consistent with a new shipping description 
adopted within the Fifteenth Revised Edition of the United Nations 
Recommendations on the Transport of Dangerous Goods (UN 
Recommendations).
    In addition, we proposed to revise the hazard communication 
requirements for compartmented cargo tanks, tank cars, or cargo tanks 
that carry materials under this description. Currently, the HMR provide 
exceptions from the identification number marking requirements for each 
of the different liquid petroleum distillate fuels, including gasohol 
containing up to 20% ethanol, transported in a compartmented cargo tank 
or tank car if the identification number is displayed for the liquid 
petroleum distillate fuel having the lowest flash point. Because of 
this exception, emergency responders may not know that fires involving 
materials transported in a compartmented cargo tank or tank car should 
be handled with alcohol resistant foam. In the NPRM, we proposed to 
eliminate this exception for materials described under the proposed new 
HMT entry ``Ethanol and gasoline mixture or Ethanol and motor spirit or 
Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, 
II''. Thus, as proposed, display of the new UN identification number 
for ethanol fuel blends would be required to ensure that emergency 
responders understand the unique response measures applicable to such 
materials.
    To facilitate compliance with the new provisions applicable to 
ethanol fuel blends, we proposed a two-year transition period. We asked 
commenters specifically to address the proposed transition period, 
including whether the transition period would provide sufficient time 
for shippers and carriers to incorporate the proposed new shipping name 
and UN identification number into shipping papers and package markings 
with minimal disruptions to normal business operations. We also asked 
if the proposed two-year transition period should be shortened to 
ensure that the new shipping name and UN identification number are 
utilized as quickly as possible. In addition, we requested comments on 
how to balance these two potentially competing goals.
    Shell strongly supports the addition of the new proper shipping 
description, ``Ethanol and gasoline mixture or Ethanol and motor spirit 
or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475, 
II.'' Shell contends the new description will provide more effective 
guidance to emergency responders. Shell also notes that ethanol content 
greater than 10 percent in motor fuel blends requires alcohol resistant 
foam to minimize blanket break down and vapor breakthrough and re-
ignition.
    Five commenters [ADM, PMAA, NTTC, RFA, and PMCI] suggest that the 
emergency response requirements cited in the NPRM could be satisfied 
through other, more effective or less costly means. PMCI suggests that 
adoption of the proposed amendments would increase confusion for 
persons attempting to determine the most appropriate shipping 
description for gasoline/alcohol fuel blends. NTTC and PMCI suggest 
using a uniform gasoline ``UN1203'' marking for both gasoline and 
gasoline/alcohol fuel blends, while revising the ERG to specify the use 
of alcohol resistant foam for any Class 3, Flammable liquid, rather 
than incorporating a new shipping description into the HMR. As an 
alternative to this approach, PMCI recommends authorizing the new 
shipping description for both gasoline and gasoline/alcohol fuel 
blends. Under this alternative, multiple compartmented cargo tanks 
transporting both gasoline and gasoline/alcohol fuel blends could 
display only one UN identification number rather than multiple UN 
identification numbers representing different types of fuel blends.
    Several commenters addressed the potential cost impacts of our 
proposal to limit the applicability of the current exception that 
permits display of the UN identification number for the material having 
the lowest flashpoint on multi-compartmented cargo tank motor vehicles 
and rail tank cars transporting different liquid petroleum distillate 
fuels, including gasoline and gasohol. One commenter [PMAA] asserts 
that the proposed rule would impose significant costs for retrofitting 
trucks to display multiple UN identification numbers. In response to 
our request for specific comments regarding the costs for tank truck 
carriers to comply with the proposal, NTTC states that it is unable to 
quantify the total number of tank trucks in ethanol service. NTTC 
states that its members operate over 10,000 petroleum trailers and that 
these trailers are equipped to transport both ethanol and gasoline, 
although NTCC cannot confirm the extent to which trailers actually 
transport both materials. NTTC further asserts that due to the shortage 
of petroleum trailers currently in service, with the introduction of 
ultra-low sulfur diesel (ULSD) and other alternative fuels, it is not 
practical to ``dedicate'' these trailers exclusively to gasoline or 
ethanol service. As a result, NTTC suggests that trailers should be 
equipped to handle both. Regarding the identification marking 
provisions, NTTC states that the majority of cargo tank motor vehicles, 
most of which have multiple compartments, have Hazard Class 3, 
FLAMMABLE LIQUID placards with UN1203 ``gasoline'' markings permanently 
affixed to them. NTTC estimates costs approaching or equaling $600 per 
vehicle to convert the identification numbers and placards on a multi-
compartmented cargo tank.
    We believe that the new shipping description for gasoline/ethanol 
fuel blends will enhance emergency responders' ability to respond 
effectively to incidents involving these materials. A unique shipping 
description and UN identification number will enable emergency 
responders to quickly identify whether an ethanol fuel blend is present 
and minimize confusion as to appropriate response measures. The new 
shipping description will be incorporated into the 2008 edition of the 
ERG. Therefore, we are adopting the proposed new shipping description 
``Ethanol and gasoline mixture or Ethanol and motor spirit mixture or 
Ethanol and petrol mixture, with more than 10% ethanol, Class 3, 
UN3475, II.''
    We disagree with the cost estimates from NTTC. As detailed in a May 
1, 2006 letter of clarification (Reference Number 01-0082R; included in 
the docket for this rulemaking), the marking exception does not apply 
to multi-compartment cargo tanks or rail tank cars containing a fuel 
blend with more than 10 percent alcohol and various petroleum 
distillate fuels because the alcohol-fuel blend does not meet the 
definition for a petroleum distillate fuel. Therefore, a multi-
compartment cargo

[[Page 4702]]

tank or rail tank car containing an alcohol-fuel blend together with 
petroleum distillate fuels such as gasoline must be marked with the 
identification number applicable to the fuel blend, in addition to the 
identification number of the petroleum distillate fuel.
    For example, under current requirements, a compartmented cargo tank 
containing Gasoline, UN1203; Diesel Fuel, UN1993; Flammable liquid, 
n.o.s. (E85), UN1993; and Denatured Alcohol, NA1987, must display 
identification numbers ``1203,'' ``1993'' (for the E85), and ``1987.'' 
After the effective date of this final rule, a compartmented cargo tank 
carrying the same materials will be required to display identification 
numbers ``1203,'' ``3475'' (for the E85), and ``1987.'' In this 
scenario, the only modification is replacement of the identification 
number ``1993'' (for the E85) with new identification number ``3475'' 
for gasoline and alcohol blends containing more than 10% alcohol. The 
cost to replace one identification number marking on up to 4 sides of 
the vehicle should be significantly less than the costs estimated by 
commenters.
    Further, to minimize the cost of transitioning to the new UN3475 
marking, we are permitting motor carriers to transport E85 in 
accordance with the most recent marking requirements in place prior to 
the publication of this rule for a period of two years following the 
effective date of this final rule. Specifically, we are permitting use 
of compartmented cargo tanks, tank cars, and cargo tanks displaying the 
current UN identification number marking of the distillate fuel having 
the lowest flashpoint in addition to the UN identification number 
marking of fuel blends containing more than 10 percent alcohol. We 
believe the two-year transition period will substantially reduce the 
financial burden on carriers affected by this amendment by allowing 
them to retain the current permanent markings on their tanks while 
transitioning to the new identification marking for UN3475. We did not 
receive any comments opposing the implementation of a two-year 
transition period.
    Currently, the HMR references special provision 172 under the 
entries ``Denatured alcohol, NA1987'' and ``Alcohols, n.o.s., UN1987.'' 
Special provision 172 allows for the alcohols described under these 
entries to contain up to 5 percent petroleum products. The ethanol 
blend, E95, is an alcohol solution containing up to 5 percent petroleum 
product and may be described as either ``Denatured alcohol, NA1987'' or 
``Alcohols, n.o.s., UN1987.'' Therefore, to maintain consistency with 
the current requirements and to further offset potential costs, we are 
allowing transportation of ethanol and gasoline blends containing no 
more than 5 percent petroleum product and described as ``Denatured 
alcohol'' or ``Alcohols, n.os.'' to be marked with the identification 
number ``1987'' instead of ``3475.'' This exception is consistent with 
a comment submitted by RFA noting that many ethanol-fuel blends such as 
E95 (containing 95% ethanol and 5% gasoline), are currently shipped in 
bulk packagings marked with the UN identification number ``1987,'' 
corresponding to the proper shipping names ``Denatured alcohol'' and 
``Alcohols, n.o.s.'' Although we are not introducing a new shipping 
description that corresponds to the identification number ``1987'' as 
suggested by RFA, we agree that the proper shipping names ``Alcohols, 
n.o.s., UN1987'' and ``Denatured alcohol, NA1987'' are acceptable 
alternatives to the new proper shipping name ``Ethanol and gasoline 
mixture or Ethanol and motor spirit mixture or Ethanol and petrol 
mixture, with more than 10% ethanol, UN3475'' for ethanol and gasoline 
mixtures containing not more than 5 percent petroleum products.
    In relation to adding the new proper shipping description, 
``Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol 
and petrol mixture, with more than 10% ethanol, 3, UN3475, II,'' we 
proposed in the NPRM to add a new Special Provision 177 in Sec.  
172.102 to specify the proper applicability of this new description. We 
received no comments opposing this proposed amendment and are, 
therefore, adopting it as proposed.
    To correspond with the new shipping description in this final rule, 
we are also revising the entry for ``Gasohol gasoline mixed with ethyl 
alcohol, with not more than 20 percent alcohol, 3, NA1203, II'' to 
limit this entry to gasoline blends with not more than 10 percent 
alcohol. The purpose of this revision is to make it explicitly clear 
that gasoline blends containing more than 10 percent ethanol should be 
described under the new shipping description ``Ethanol and gasoline 
mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with 
more than 10% ethanol, 3, UN3475, II.'' To minimize the financial 
impact of this revision we are authorizing continued use of the entry 
``Gasohol gasoline mixed with ethyl alcohol, with not more than 20 
percent alcohol, 3, NA1203, II'' for two years following the effective 
date of this final rule.
    In conjunction with the new description for gasoline and ethanol 
blends with more than 10 percent ethanol, Shell suggests removing the 
entry ``Gasohol, NA1203'' and revising the entry for ``Gasoline, 
UN1203'' to add a special provision that specifically communicates to 
shippers that the entry ``Gasoline, UN1203'' may be used for gasoline 
and ethanol blends with not more than 10 percent ethanol for use in 
spark-ignition engines. We agree that Shell's suggestion has merit. 
Although we are not removing the entry ``Gasohol, NA1203'' in this 
rule, we are revising the entry ``Gasoline, UN1203'' to allow for this 
description to be used for gasoline and ethanol blends with not more 
than 10 percent ethanol. We are revising the proper shipping name in 
column 2 of the HMT to include the allowance in italics following the 
name ``Gasoline.'' This will provide shippers with the flexibility to 
accurately describe gasoline containing small amounts of ethanol on 
their shipping documentation. The ever increasing amount of gasoline 
blends containing 10 percent or less ethanol makes this modification 
particularly important.
    The following chart compares currently authorized proper shipping 
names and the proper shipping names authorized under this final rule 
for gasoline and gasoline-alcohol blends:

------------------------------------------------------------------------
                                                    Proper shipping name
                                 Current proper         and ID number
          Material            shipping name and ID   authorized in this
                                     number              final rule
------------------------------------------------------------------------
Gasoline, with not more than  Gasohol, NA1203.....      Gasohol,
 10% ethanol.                                           NA1203.
                                                     Gasoline UN
                                                     1203.
Gasoline, with not more than  Gasohol, NA1203.....      Gasohol,
 20% ethanol.                                           NA1203 (w/ not
                                                        more than 10%
                                                        ethanol).
                                                     Gasoline UN
                                                     1203 (w/ not more
                                                     than 10% ethanol)
                                                        Ethanol
                                                        and gasoline
                                                        mixture, UN3475
                                                        (w/ more than
                                                        10% ethanol)

[[Page 4703]]

 
Gasoline/ethanol blends with                    Ethanol
 more than 10% ethanol..          Flammable             and gasoline
                                  liquid, n.o.s.,       mixture, UN3475.
                                  UN1993.            Alcohols,
                               Gasohol,      n.o.s., UN1987
                               NA1203(w/ not more    (Alcohol mixtures
                               than 20% ethanol).    containing up to 5%
                                                     gasoline).
                                                       
                                                        Denatured
                                                        alcohol, NA1987
                                                        (Alcohol
                                                        mixtures
                                                        containing up to
                                                        5% gasoline).
                                                        Ethanol
                                                        and gasoline
                                                        mixture, UN3475
                                                        (Alcohol
                                                        mixtures
                                                        containing up to
                                                        5% gasoline).
E85 (85% ethanol, 15%         Flammable liquid,     Ethanol and gasoline
 gasoline).                    n.o.s., UN1993.       mixture, UN3475.
Alcohol mixtures containing                    
 up to 5% gasoline.               Alcohols,             Alcohols,
                                  n.o.s., UN1987.       n.o.s., UN1987.
                               Denatured     Denatured
                               alcohol, NA1987.      alcohol, NA1987.
                                                     Ethanol and
                                                     gasoline mixture,
                                                     UN3475.
E95 (95% ethanol, 5%                           
 gasoline).                       Alcohols,             Alcohols,
                                  n.o.s., UN1987.       n.o.s., UN1987.
                               Denatured     Denatured
                               alcohol, NA1987.      alcohol, NA1987.
                                                        Ethanol
                                                        and gasoline
                                                        mixture, UN3475.
------------------------------------------------------------------------

B. Marine Pollutants (Sec. Sec.  171.4 and 172.203)

    Marine pollutants are hazardous materials that present an 
environmental hazard to rivers, lakes, streams, oceans, and other 
marine habitats. Section 171.4 prohibits the transportation of 
materials meeting the definition of a marine pollutant except in 
accordance with HMR requirements. Marine pollutants transported in non-
bulk packagings are excepted from HMR requirements, unless the 
transportation is by vessel.
    The International Vessel Operators Hazardous Materials Association, 
Inc. (VOHMA) petitioned PHMSA (P-1465) to amend the HMR to clarify that 
the exception for non-bulk packages of marine pollutants transported by 
motor vehicle, rail car or aircraft does not apply to a marine 
pollutant ``intended for transport'' aboard a vessel. VOHMA states that 
the current language suggests the consignor who prepares the shipment 
and offers it in intermodal transportation has no obligation to declare 
the marine pollutant on the shipping paper if the initial transport is 
by motor vehicle or rail. As a result, a shipment intended for 
transportation by vessel and initially offered into transportation by 
highway, rail or air may be improperly described on the vessel shipping 
documents by a freight forwarder.
    To address VOHMA's concerns, in the NPRM we proposed to clarify in 
Sec.  171.4(c) that shipments for which all or part of the 
transportation is by vessel must conform to applicable HMR 
requirements, even if the initial transportation is by rail or highway. 
We also proposed to amend Sec.  172.203(l), which addresses shipping 
paper requirements for shipments of marine pollutants, to clarify that 
marine pollutants in non-bulk packagings transported all or in part by 
vessel must be shown on the shipping paper with the words ``Marine 
Pollutant'' appearing in association with the basic description.
    One commenter [Hsiu] supports the proposed clarification. Another 
commenter [Shell Chemical] expresses concern regarding our proposed 
clarification in Sec.  172.203(l). Shell Chemical states that 
addressing marine pollutants only is not broad enough to address 
VOHMA's petition. Shell Chemical notes that the proposed amendment for 
marine pollutants would not address other shipping paper provisions 
specific to vessel shipments and the IMDG Code, which, while not 
required for U.S. domestic land transportation, are mandatory for 
vessel transportation. The commenter notes as an example the 
requirement for adding the minimum flashpoint to the shipping paper if 
the flashpoint is less than 60.5[deg]C, which is required in Sec.  
172.203(i) for vessel transportation. The commenter also states that 
shippers who use computer systems may have a problem generating a 
single shipping description to meet all the requirements for vessel 
shipments where the initial carriage is by highway and subsequent 
carriage is by vessel. In this situation, according to Shell Chemical, 
the computer system normally generates two shipping documents: one for 
the highway portion of the shipment and another, which is sent to the 
shipper's port agent, covering the vessel portion and containing the 
IMDG Code description. To address these issues, Shell Chemical suggests 
revising only Sec.  172.203(i) to require a shipper who offers a 
hazardous material by vessel either directly or indirectly to provide 
the initial carrier or port agent all information necessary for 
shipment in accordance with the IMDG Code and allow for the IMDG Code 
information to appear either on the initial carrier's shipping paper or 
on a separate document. We disagree. The addition of the language 
proposed by Shell Chemical would require all vessel shipments to 
conform to the IMDG Code, which is authorized but not required for 
domestic shipments. Further, because no provision of the HMR prohibits 
inclusion of additional information in a shipping paper, making express 
allowance for this in Sec.  172.203(i) would be redundant and 
unnecessary. Therefore, we are adopting the amendments as proposed.

C. Incorporation by Reference (Sec.  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 
national consensus standards bodies. PHMSA regularly reviews updated 
consensus standards and considers their merit for inclusion in the HMR. 
Section 171.7 lists all standards incorporated by reference into the 
HMR.
    In this case, we evaluated the following updated consensus 
standards pertaining to cargo tanks and compressed gas cylinders and 
determined that the revised standards provide an enhanced level of 
safety

[[Page 4704]]

without imposing significant compliance burdens. These standards have a 
well-established and documented safety history; their adoption will 
maintain the high safety standard currently achieved under the HMR. We 
received no comments opposing our adoption of the consensus standards 
and informational materials proposed in the NPRM. Therefore, we are 
updating, revising, and adding the following reference materials in 
paragraphs (a)(3) and (b) of Sec.  171.7:
     In response to a Chlorine Institute petition (P-1444), 
under the entry ``Chlorine Institute,'' we are updating ``Type 1\1/2\ 
JQ 225, Dwg., H51970, Revision D April 5, 1989; or Type 1\1/2\ JQ 225, 
Dwg. H50155, Revision F, April 4, 1989'' to Revisions F and H 
respectively.
     In response to a Chlorine Institute petition (P-1444), 
under the entry ``Chlorine Institute,'' we are updating ``Section 3, 
Pamphlet 57, Emergency Shut-Off Systems for Bulk Transfer of Chlorine, 
3rd Edition, October 1997'' to the 4th Edition, October 2003.
     In response to a Chlorine Institute petition (P-1444), 
under the entry ``Chlorine Institute,'' we are adding a reference to 
``Section 3, Pamphlet 166 Angle Valve Guidelines for Chlorine Bulk 
Transportation, 1st Edition, October 2002.''
     In response to a Chlorine Institute petition (P-1444) and 
a Midland Manufacturing Corporation petition (P-1448), under the entry 
``Chlorine Institute,'' we are adding a reference to ``Typical Manway 
Arrangement Chlorine Cargo Tank, Dwg. 137-5, November 1996.''
     In response to a Chlorine Institute petition (P-1444), 
under the entry ``Chlorine Institute,'' we are removing the reference 
to ``Standards for Housing and Manway Covers for Steel Cargo Tanks, 
Dwgs. 137-1 and 137-2, September 1, 1982.''
     In response to a Compressed Gas Association (CGA) petition 
(P-1482), we are updating ``CGA Pamphlet C-5 Cylinder Service Life--
Seamless Steel High Pressure Cylinders, 1991'' to the reaffirmed 1995 
Edition.
     In response to a CGA petition (P-1472), we are updating 
``CGA Pamphlet C-7, A Guide for the Preparation of Precautionary 
Markings of Compressed Gas Containers, appendix A, issued 1992 (6th 
Edition)'' to the 2004 (Eighth) Edition. The updated pamphlet allows 
for hazard class numbers to be placed on subsidiary labels which is 
prohibited in the 1992 Edition.
     In response to a CGA petition (P-1440), we are authorizing 
the use of ``S-1.1, Pressure Relief Device Standards--Part 1--Cylinders 
for Compressed Gases, 2005 (with the exception of paragraph 9.1.1.1), 
Twelfth Edition'' for DOT specification cylinders and UN pressure 
receptacles. Consequently, we will be removing references to the Ninth 
Edition (1996) and Eleventh Edition (2003).
     In response to a CGA petition (P-1440), we are updating 
``CGA Pamphlet S-7, Method for Selecting Pressure Relief Devices for 
Compressed Gas Mixtures in Cylinders, 1996'' to the 2005 Edition.
     We are updating ``ISO 7225, Gas cylinders--Precautionary 
labels, First Edition, November 1994, (Corrected and reprinted August 
1995), (E)'' to the Second Edition, July 2005.
    Paragraph (b) of this section contains a list of informational 
materials not requiring incorporation by reference. These materials are 
for informational purposes only and are not mandatory requirements. In 
the NPRM, we proposed to revise paragraph (b) of this section to add a 
reference to CGA publication, ``C-1.1, Personnel Training and 
Certification Guidelines for Cylinder Requalification by the Volumetric 
Expansion, issued 2004 (1st Edition).'' In addition we proposed to add 
a new paragraph (g)(6) to Sec.  180.205 to indicate that the CGA 
publication is an example of materials that may be used to train 
personnel in requalifying cylinders using the volumetric expansion 
method.
    One commenter [Hydro-Test] states that other commercially available 
guidelines concerning the requalification of cylinders may be 
overlooked if the CGA publication is specifically referenced in the 
HMR. We recognize that other satisfactory training materials are 
available or may be developed. It is not our intention to require the 
use of a particular set of training materials. Rather, as the rule text 
makes explicit, the referenced publication is cited only as an example 
of available training materials.

D. Household Wastes (Sec. Sec.  171.8, 173.12, and 173.134)

    Although the HMR explicitly exempt shipments of ``hazardous waste'' 
(Sec.  173.134(b)(13)(i)), the term ``hazardous waste'' is not defined 
in the rules. In the NPRM, we proposed to include a new definition for 
``Household wastes'' to mean ``any solid waste (including garbage, 
trash, and sanitary waste from septic tanks) derived from households 
(including single and multiple residences, hotels and motels, 
bunkhouses, ranger stations, crew quarters, campgrounds, picnic 
grounds, and day-use recreation areas).'' We also proposed to clarify 
in Sec.  173.12, which provides packaging exceptions for hazardous 
waste shipments, that household wastes are not subject to the HMR.
    Three commenters [Duncan; Veolia; and RRI] oppose the amendments, 
suggesting that the proposed definition would allow unregulated 
transportation of household hazardous wastes to and from household 
waste collection centers. RRI also asserts the proposed definition 
could cause confusion because it would except all ``household wastes,'' 
without regard to hazards, quantities, or commercial or personal 
generation.
    The commenters appear to have misunderstood our intent in proposing 
a definition for ``household wastes.'' The definition is intended to 
clarify a long-standing exception from regulation under the HMR for 
waste materials that are generated from households (including single 
and multiple residences, hotels and motels, bunkhouses, ranger 
stations, crew quarters, campgrounds, picnic grounds, and day-use 
recreation areas). Such household wastes typically are picked up at 
curbside by municipal governments for disposal in accordance with 
applicable State or local government requirements.
    In regard to collection centers, we note that the transportation of 
consolidated household waste material in a motor vehicle by a 
government employee, solely for noncommercial government purposes, is 
not ``commercial'' transportation for purposes of the HMR and, 
therefore, is not subject to the requirements of the HMR (see Sec.  
171.1(d)(5)). However, transportation of a consolidated hazardous waste 
shipment from a collection center by a commercial motor carrier under 
contract to a government entity is ``commercial'' transportation for 
purposes of the HMR and, therefore, is subject to all applicable HMR 
requirements.
    RRI also questions the use of undefined terms within the proposed 
definition, such as ``solid waste,'' ``sanitary waste,'' ``hotel,'' and 
``motel.'' RRI observes that the Environmental Protection Agency (EPA) 
uses similar terminology, but may define such terms differently, 
causing confusion regarding the applicability of these terms. We 
disagree. The term ``solid waste'' is meant to cover those items 
commonly found in household trash and garbage receptacles; the meaning 
of the terms ``hotel,'' ``motel,'' and ``sanitary waste'' should be 
evident from the way these terms are used in the definition. Further, 
although there are similarities

[[Page 4705]]

in terminology between PHMSA's and EPA's requirements, PHMSA's 
definitions are intended to stand on their own for the purposes of 
transportation under the HMR.
    For the reasons described above, in this final rule, we are 
adopting the definition and clarifications for ``Household waste'' as 
proposed in the NPRM.

E. Hazardous Materials Table (HMT; Sec.  172.101)

    Section 172.101 contains the HMT and explanations for each of the 
columns in the HMT. This final rule makes various amendments to the 
HMT. For the purpose of the Government Printing Office's publication 
procedures, changes to the HMT appear under three sections of the 
Table, ``remove,'' ``add,'' and ``revise.''
    In the NPRM, we proposed to harmonize certain proper shipping names 
in the HMR with the Fourteenth revised edition of the UN 
Recommendations, the 2007-2008 International Civil Aviation 
Organization Technical Instructions for the Safe Transport of Dangerous 
Goods by Air (ICAO Technical Instructions), and Amendment 33 to the 
International Maritime Organization Dangerous Goods Code (IMDG Code), 
and to correct other entries. One commenter [Laude] identified an error 
in the NPRM: The non-bulk packaging references for the HMT entry 
``Radioactive material, Type A package non-special form, non fissile or 
fissile excepted, Class 7, UN2915,'' were incorrect. This error has 
been corrected in this final rule. We did not receive any comments 
opposing these proposed changes and are, therefore, adopting the 
amendments as proposed. In addition we are removing two entries for 
``Hydrazine aqueous solution, with more than 37% hydrazine, by mass, 
UN2030.'' A duplicate entry was inadvertently added during the process 
of amending ``Hydrazine aqueous solution, with more than 37% hydrazine, 
by mass, UN2030'' under docket HM-244, which was published in the 
Federal Register on October 1, 2007 (72 FR 52578). Both of these 
entries contained errors. Therefore, we are removing both entries and 
adding the correct description for ``Hydrazine aqueous solution, with 
more than 37% hydrazine, by mass, UN2030.''

F. Special Provisions (Sec.  172.102)

    Section 172.102 lists a number of special provisions applicable to 
the transportation of specific hazardous materials. Special provisions 
contain packaging provisions, prohibitions, and exceptions applicable 
to particular quantities or forms of hazardous materials. In the NPRM, 
we proposed to revise Special Provision B69 to clarify that metal 
covered hopper cars, covered motor vehicles, portable tanks, and non-
specification bins must be sift-proof and weather-resistant and to 
remove the requirement for bins to be approved by the Associate 
Administrator. We received no comments on this proposal; therefore, we 
are adopting it without change in this final rule.

G. Package Marking--RQ (Sec. Sec.  172.315 and 172.324)

    Except for transportation by aircraft, Sec.  172.315 excepts 
limited quantity shipments of hazardous materials from the requirement 
for marking the proper shipping name of the material on the package 
when the identification number of the material is shown within a 
square-on-point configuration. In the NPRM, we proposed to revise Sec.  
172.315 to clarify that if a shipper identifies a limited quantity 
material which is also a hazardous substance, the shipper is required 
to mark the letters ``RQ'' on the package in association with the 
square-on-point configuration containing the identification number of 
the material.
    We received two comments [Hsiu and RRI] supporting the proposed 
amendment. RRI suggests that, for increased visibility, this provision 
should be added to Sec.  172.324, which contains the marking 
requirements for hazardous substances in non-bulk packagings. We agree; 
therefore, in this final rule, we are revising Sec.  172.324 to add 
this clarification and adopting the amendment to Sec.  172.315 as 
proposed.
    We also invited comments on whether or not the name of the 
hazardous substance should also be included along with the letters 
``RQ,'' even though the proper shipping name is not required. Hsiu 
recommends we remove all hazardous substance marking requirements for 
limited quantity shipments to expedite the movement of international 
shipments; international regulations do not require ``RQ'' markings. We 
disagree. It is important to identify packages containing a hazardous 
substance, regardless of the size of the package. This marking is 
necessary for emergency responders who respond to incidents involving 
packages containing hazardous substances and are required to implement 
EPA mandated procedures tied to the risk associated with reportable 
quantity amounts. Therefore, we are also revising Sec.  172.324 to 
incorporate this provision.

H. Placement of Labels (Sec.  172.406)

    Section 172.406 specifies the placement of labels on a package. 
Paragraph (e) of this section prescribes requirements for the duplicate 
labeling of packages based on size. Paragraph (e)(1) requires each 
package or overpack having a volume of 1.8 m\3\ (64 cubic feet) or more 
to be labeled on at least two sides or two ends (other than the bottom 
of the package). In the NPRM, we proposed to add a new paragraph (e)(6) 
to clarify that IBCs having a volume of 1.8 m\3\ (64 cubic feet) or 
more are required to be labeled on at least two sides or two ends. We 
received no comments on this proposal; therefore, we are adopting it 
without change in this final rule.

I. Small Quantity Exceptions (Sec.  173.4)

    Section 173.4 establishes exceptions for small quantities of 
hazardous materials. In response to petitions from the Dangerous Goods 
Advisory Council (DGAC) (P-1454) and Pharmaceutical Research and 
Manufacturers of America (PhRMA) (P-1457), we proposed in the NPRM to 
except de minimis quantities (less than 1 gram for solids and less than 
1 milliliter for liquids per inner packaging) of PG II and PG III 
materials of Class 3, Division 4.1, Division 4.2, Division 4.3, 
Division 5.1, Division 6.1, Class 8, and Class 9 materials. We proposed 
to require these materials to be transported in a combination 
packaging, with cushioning and absorbent material that would be capable 
of sustaining a drop test and a compressive load test.
    We received five comments supporting this proposal [RRI, Hsiu, FPL, 
H&PCLC, and AHS). RRI suggests the performance-based criteria be 
removed from the packaging requirements in favor of a requirement for a 
strong, tight packaging in conformance with Part 173, Subpart B. 
Additionally, RRI suggests amending the gross mass packaging limits by 
removing the 64 pound gross weight limitation while retaining the net 
hazardous material mass provisions to allow for more packaging 
configurations. RRI believes these suggestions would generate more cost 
savings than the proposed rule. We disagree. The packaging performance 
standard proposed in the NPRM is consistent with the performance 
standard currently required for shipments of small quantities under 
Sec.  173.4 and with the packaging standard recommended in the two 
petitions for rulemaking we received on this issue. The transportation 
history of the small quantity exception demonstrates that the packaging 
standard provides a high

[[Page 4706]]

level of safety; moreover, the standard is measurable and enforceable. 
Therefore, we are adopting the packaging standard proposed in the NPRM.
    Hsiu asks whether packaging tests and recordkeeping are mandatory. 
Packaging tests and recordkeeping are not mandatory. The performance 
standard proposed in the NPRM and adopted in this final rule is a 
capability standard. Capability may be demonstrated in a variety of 
different ways, such as engineering analysis, selective testing of 
similar packages, or actual testing of each specific design type.
    Two commenters request we expand the small quantity exception 
proposed in the NPRM. Hsiu requests that explosives classed as Division 
1.4S be included within the small quantity exception; FPL requests we 
authorize sample bottles containing up to 2 mL under the small quantity 
exception. Hsiu's and FPL's requests are beyond the scope of this 
rulemaking. A petition for rulemaking may be submitted to us in 
accordance with 49 CFR Part 106, Subpart B.
    Therefore, in this final rule, we are adopting a new exception for 
small quantities--less than 1 gram for solids and less than 1 
milliliter for liquids per inner packaging. When packaged for 
transportation as specified in accordance with the new paragraph (e), 
these materials are in amounts and forms that do not pose an 
unreasonable risk to health and safety or property.

J. Agricultural Exceptions (Sec.  173.5)

    Section 173.5 establishes the conditions under which agricultural 
products such as pesticides and fertilizers are excepted from HMR 
requirements. In order to utilize the exceptions provided, paragraph 
(b)(2) specifies limits for the amount of agricultural product that may 
be transported in a single vehicle. In the NPRM, we proposed to clarify 
this exception by replacing the term ``vehicle'' with ``motor 
vehicle.'' We received no comments on this proposal; therefore, we are 
adopting it without change in this final rule.

K. Hazardous Waste Exceptions (Sec.  173.12)

    Section 173.12 provides packaging exceptions for shipments of 
hazardous waste materials. In a final rule published on January 24, 
2005, under Docket No. RSPA 03-16370 (HM-233; 70 FR 3304), we added a 
new paragraph (e) to this section to authorize the storage, loading and 
transportation of waste cyanide and waste cyanide mixtures or solutions 
with Class 8 acids under certain conditions. In the NPRM, we proposed 
to revise paragraph (e) to authorize the transportation of waste 
cyanides and waste cyanide mixtures or solutions with not only Class 8 
acids but all acids. We received no comments on this proposal; 
therefore, we are adopting it without change in this final rule.

L. Shipper Responsibilities (Sec.  173.22)

    Section 173.22 establishes a shipper's responsibility for complying 
with applicable HMR requirements. In the NPRM, we proposed, in response 
to a petition from NTTC (P-1469), to amend this section to require 
shippers who offer certain hazardous materials for transportation to 
use carriers holding a valid safety permit issued by the Federal Motor 
Carrier Safety Administration (FMCSA). FMCSA regulations (49 CFR Part 
385, Subpart E) require motor carriers transporting certain types and 
amounts of hazardous materials to apply for a safety permit. To obtain 
a safety permit, a carrier must have a ``satisfactory'' safety rating 
and must meet certain other safety and security requirements. The 
safety permit requirements apply to motor carriers transporting: (1) A 
highway route-controlled quantity of a Class 7 (radioactive) material; 
(2) certain high explosives; (3) certain toxic inhalation hazard (TIH) 
materials; and (4) certain bulk shipments of liquefied methane gas and 
liquefied natural gas. A carrier may not transport any of the listed 
materials unless it has a valid safety permit.
    We received one comment supporting this proposal [ATA]. We received 
four comments opposing this proposal [Hsiu, Veolia, Shell Chemical, and 
NTTC]. Hsiu states that this is against the precedent PHMSA established 
when it determined that shippers are not responsible for verifying 
hazardous materials endorsements on commercial driver licenses. Veolia 
notes that, currently, FMCSA has chosen to limit dispersal of the 
required information to only State and local law enforcement personnel 
due to security concerns. Shell notes that the obligation to secure and 
maintain a safety permit under 49 CFR 385.403 is the motor carrier's 
and not the shipper's. Shell is concerned that this proposal, if 
adopted, would establish the wrong precedent, placing shippers in an 
enforcement role for which they are ill equipped. We also received 
comments from the petitioner, NTTC, who opposes this amendment due to 
the lack of a publicly accessible and updated list of carriers who hold 
current safety permits.
    We note that the proposal in the NPRM implements a statutory 
requirement in 49 U.S.C. 5109(f), which provides that a shipper 
offering a hazardous material for transportation in commerce may only 
offer that material to a motor carrier with a safety permit issued in 
accordance with 49 U.S.C. 5109. We do not agree that by incorporating 
this statutory provision into the HMR we are placing shippers in an 
``enforcement'' role. Rather, we are asking shippers, consistent with 
statutory requirements, to exercise due diligence and responsible care 
with respect to selecting motor carriers. Therefore, we are adopting 
the proposal in this final rule.
    In accordance with 49 CFR 385.417, ``a motor carrier must provide 
the number of its safety permit to a person who offers a [covered 
hazardous material] for transportation in commerce.'' FMCSA issues each 
motor carrier a paper copy of its safety permit. A shipper may request 
the carrier's safety permit number or a copy of its safety permit to 
verify that it is using a carrier holding a valid safety permit.

M. General Packaging Requirements (Sec.  173.24)

    Section 173.24 establishes general requirements for packagings and 
packages. Paragraph (g) of this section addresses the venting of 
packages to reduce internal pressures that may develop by the evolution 
of gas from the contents during transportation. Currently, this 
paragraph specifies that a package containing a hazardous material and 
transported on board an aircraft must not vent. In the NPRM, we 
proposed to revise paragraph (g)(1) to specify that the venting of 
packagings containing carbon dioxide, solid (dry ice) would not be 
prohibited for air transportation. We received no comments opposing 
this proposed amendment. However, one commenter [UPS] notes that Sec.  
173.320(c) refers shippers of refrigerated and cryogenic liquids to 
ICAO Packing Instruction (PI) 202. ICAO PI 202 applies to Class 2 
refrigerated liquefied gases in open and closed cryogenic receptacles 
authorized for air transportation that require venting. We agree with 
the commenter that cryogenic liquids as specified in Sec.  173.320(c) 
should also be referenced in this section. Therefore, in this final 
rule, we are adopting the proposed amendment and adding a reference to 
ICAO PI 202.

N. Transportation of Explosives (Sec. Sec.  173.61, 173.62)

    Section 173.61 establishes requirements for transporting Class 1 
(explosive) materials in the same outside packaging with other 
materials that could, under normal conditions of transportation, 
adversely affect the

[[Page 4707]]

explosive or its packaging. Paragraph (c) of this section lists 
specific explosives that may not be transported in the same outside 
packaging as other Class 1 materials. In a final rule published May 6, 
1997 (HM 215B; 62 FR 24708), we added a new entry to the HMT 
``Detonator, assemblies, non-electric for blasting,'' UN0500. This 
entry should have also been added to paragraph (c) to indicate that 
this material is not authorized to be packed together with other Class 
1 explosives. In the NPRM, we proposed to correct this oversight by 
amending paragraph (c) to include UN 0500 ``Detonator assemblies, non-
electric for blasting.'' We received no comments on this proposal; 
therefore, we are adopting it without change in this final rule.
    Section 173.62 establishes specific packaging requirements for 
Class 1 (explosive) materials. The Table of Packing Methods in 
paragraph (c) specifies the packing instructions assigned to each 
explosive. In the NPRM, we proposed to revise packing instruction (PI) 
134 in the Table of Packing Methods to authorize the use of a 
specification 4H1 plastic box as an outer packaging for certain 
explosives. We received no comments on this proposal; therefore, we are 
adopting it without change in this final rule.

O. Transportation of Dry Ice (Sec. Sec.  173.217, 175.10, 175.900)

    Section 173.217 establishes packaging requirements for dry ice 
(carbon dioxide, solid). In the NPRM, we proposed to revise this 
section for clarity and to harmonize the HMR with requirements in the 
ICAO Technical Instructions applicable to the transportation of dry ice 
by air. Currently under paragraph (d), the HMR require the shipper to 
have a specific and special written arrangement with the air carrier to 
transport more than 441 pounds of dry ice in a single compartment. The 
ICAO Technical Instructions no longer include this requirement. The 
United Parcel Service (UPS) petitioned PHMSA (P-1439) to amend this 
section for consistency with the most recent edition of the ICAO 
Technical Instructions. We agreed and proposed to revise the current 
paragraph (d) accordingly. In addition, we proposed to revise paragraph 
(d) to address air specific provisions such as ventilation safety 
procedures, net mass marking requirements, and quantity limit 
exceptions for dry ice used as a refrigerant for non-hazardous 
materials. Further, we proposed requirements for air carriers who 
transport dry ice in a proposed new Sec.  175.900.
    In the NPRM, we proposed to require shippers to mark the net mass 
of dry ice contained in the package on the outside of the package. Two 
commenters [LabCorp and UPS] request clarification regarding the 
proposed net mass marking requirements. LabCorp states that the NPRM is 
not clear as to whether the proposed net mass marking requirement 
specified in Sec.  173.217(c)(1) is in addition to, rather than in 
place of, the standard requirement in Sec.  172.301 to mark the package 
with the proper shipping name and UN number. We agree and are revising 
the language in paragraph (c)(1) to specify that the net mass marking 
requirement is in addition to the applicable marking requirements in 
Part 172, Subpart D. We are also adding a statement to clarify that 
each unit load device (ULD) when used as the packaging for dry ice 
would be subject to all the applicable marking requirements for dry 
ice. We are also adding clarification in Sec.  175.900 to specify that 
if an operator adds dry ice to such a ULD, the net mass marking would 
need to be revised if the amount of dry ice exceeds the net mass 
quantity marked on the ULD. UPS also suggests the text should be 
clarified to specify that the quantity limits in columns (9A) and (9B) 
of the HMT are not applicable to dry ice that is used as a refrigerant 
for non-hazardous materials and is loaded in a unit load device or 
other type of pallet. We agree, and have revised Sec.  173.217(c) 
accordingly.
    UPS also suggests slight revisions to clarify the applicability of 
the marking requirements for packagings containing less than 5 pounds 
of dry ice. These proposed revisions would create redundancy and are 
therefore unnecessary. Accordingly, we are not incorporating these 
suggested revisions.
    The HMR require a shipper to have a specific and special written 
arrangement with an air carrier to transport more than 441 pounds of 
dry ice in a single compartment. The ICAO Technical Instructions have 
been broadened by removing the 441 pound threshold of dry ice in a 
single compartment and the requirement for a specific and written 
arrangement with the carrier. In the NPRM, in response to a UPS 
petition (P-1439), we proposed to incorporate the ICAO Technical 
Instructions' provisions, which require the shipper of the dry ice and 
the carrier to make arrangements to ensure that proper ventilation 
procedures are followed. We received three comments on the proposed 
revisions [Hsiu, LabCorp, and UPS]. Both Hsiu and LabCorp question the 
interpretation of the phrase ``arrangements between the shipper and the 
operator'' and state the carrier requirements specified in Part 175 
thoroughly address safety issues. Although we agree that the 
transportation of hazardous materials by aircraft is adequately 
addressed in Part 175, the intent of the proposed dry ice requirements 
is to notify the initial air carrier, through advance shipper-carrier 
arrangements, of the quantities of dry ice that will be aboard the 
aircraft. The stowage of dry ice is the responsibility of the aircraft 
operator and is based on the specific aircraft type, the number of air 
exchanges per hour in the cargo compartment, the method of packing and 
stowing, whether animals are carried in the compartment, and other 
factors. The shipper should provide notification of the amount of dry 
ice to be shipped to the carrier in advance to afford the carrier the 
opportunity to take into account these safety factors. To eliminate 
confusion, we are clarifying that it is the carrier's responsibility to 
comply with the dry ice transportation provision in Sec.  175.900. Note 
that the arrangements required under this final rule need not be in 
writing.
    The HMR provide an exception from the shipping paper and 
certification requirements for dry ice shipments prepared in accordance 
with applicable requirements, provided the package is marked ``Carbon 
dioxide, solid'' or ``Dry ice'' and includes an indication that the 
material being refrigerated is used for diagnostic or treatment 
purposes. To avoid confusion, we proposed to revise Sec.  173.217(e) to 
specify that only dry ice actually used to refrigerate materials being 
shipped for diagnostic or treatment purposes may be transported under 
this exception. We did not receive any comments opposing this proposed 
revision; therefore, we are adopting it without change in this final 
rule.
    Section 175.10 establishes exceptions for the transportation of 
certain hazardous materials by aircraft, including hazardous materials 
that may be carried by passengers or crew members in checked or carry-
on baggage. In the NPRM, we proposed to revise paragraph (a)(10) to 
harmonize the HMR with the ICAO Technical Instructions applicable to 
the transportation of dry ice in checked or carry-on baggage by 
excepting from the HMR shipments of dry ice used to pack perishables in 
carry-on and checked baggage. In the NPRM, we indicated the net mass 
requirement would be 2.3 kg (5 pounds). The ICAO Technical Instructions 
allow 2.5 kg (5.5 pounds). To correct this inconsistency, we are 
amending the section to read ``2.5 kg (5.5 pounds).'' Likewise, we are 
amending Sec.  173.217(c) to raise the limit

[[Page 4708]]

from 2.3 kg to 2.5 kg for such packages when transported as cargo. 
Although the ICAO TI does not provide a cargo exception equivalent to 
that found in Sec.  173.217(c), we believe that establishing a 
consistent limit for packages transported as cargo and packages 
transported by passengers or crew members will facilitate the 
transportation of such packages.
    In response to a UPS petition (P-1439) and to harmonize with 
international standards, we proposed to add a new Sec.  175.900 to 
incorporate the ICAO Technical Instructions aircraft loading 
requirements for carbon dioxide, solid (dry ice). The proposed 
amendment would provide guidelines to the aircraft operator for 
handling dry ice shipments based on the aircraft type, the aircraft 
ventilation rates, the method of packing and stowing, the presence of 
animals on the flight. In addition, the proposed amendment would 
require the aircraft operator to ensure that the ground staff is 
informed of the presence of dry ice, and provide the Pilot-in-Command 
with information to reflect any quantity change of dry ice.
    We received one comment [UPS] supporting this proposal. We did not 
receive any comments opposing the proposed amendment; therefore, we are 
adopting it without change in this final rule. UPS also suggested 
including text in either this section or in Sec.  175.33 (Shipping 
paper and notification of pilot-in-command provisions) to adopt DOT-E 
12378, which allows for dry ice loaded on an aircraft to be shown as 
aggregate mass (in kg) quantity per loading position, rather than a net 
mass (in kg) quantity per package. Because this additional requirement 
was not proposed in the NPRM, it is beyond the scope of this 
rulemaking. However, we agree that there may be some merit in adopting 
the provision in DOT-E 12378, which allows for dry ice loaded on an 
aircraft to be shown as an aggregate quantity per loading position, 
rather than a net quantity per package; we will consider this issue in 
a future rulemaking.

P. Transportation of Compressed Gas in Cylinders (Sec. Sec.  173.301, 
173.304, 173.306)

    Section 173.301 establishes general requirements for the 
transportation of compressed gases in cylinders and spherical pressure 
vessels. Paragraph (f) of this section addresses pressure relief 
devices (PRDs), and paragraph (g) addresses manifolded cylinders in 
transportation. Paragraphs (f) and (g) require pressure relief devices 
to conform to the applicable provi