Hazardous Materials: Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air, 3308-3389 [2010-33324]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Rules and Regulations]
[Pages 3308-3389]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-33324]



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Part III





Department of Transportation





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



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

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

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

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

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


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

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Michael Stevens, telephone (202) 366-
8553, or Shane Kelley, telephone (202) 366-0656, Standards and 
Rulemaking Division, Pipeline and Hazardous Materials Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue, SE., 2nd Floor, Washington, DC 20590-0001.

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

I. Background

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

II. Primary Topics of Concern Discussed in the ANPRM

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

[[Page 3309]]

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

A. Limited Quantities and Consumer Commodities

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

B. Classification of Division 1.4S Explosives

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

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C. Classification of Sour Crude Oil

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

D. IBC Rebottling

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

E. Metal Hydride Storage Systems in Conveyances

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

F. In Vitro Testing for Corrosivity

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

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

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

[[Page 3311]]

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

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

A. Harmonization Amendments Adopted in This Final Rule

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

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

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

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

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


[[Page 3312]]


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

    SSI added:

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

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

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

    DGAC further argued:

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

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

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

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

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

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

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

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

[[Page 3313]]

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

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

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

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

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

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

    Valspar asserted:

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

    DGAC expressed concern that:

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

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

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

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

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

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

[[Page 3314]]

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

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

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

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

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

[[Page 3315]]

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

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

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

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

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

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

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

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

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

[[Page 3316]]

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

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

    ESB added:

    [We object to] with applying the test Type 6(d) for articles 
previously classified. DOD has been assigning classifications using 
a methodology that includes assessing projections, fireballs, and 
jets of flame from unconfined initiation testing. DOD would consider