{"operation":"document","citation":"69 FR 65294","title":"Hazardous Materials: Revision of Requirements for Carriage by Aircraft","source_type":"rulemaking","agency":"Research and Special Programs Administration","status":"proposed","official":true,"published_on":"2004-11-10","effective_on":null,"summary":"RSPA is proposing changes to the requirements in the Hazardous Materials Regulations (HMR) for the transportation of hazardous materials by aircraft. These proposed changes include clarifying the applicability of part 175; excepting cargo aircraft from the quantity limits in Sec. 175.75; reformatting the exceptions in Sec. 175.10 into three sections based on applicability; and providing new separation distances for the shipment of radioactive materials by cargo aircraft. These changes are being proposed in order to clarify requirements to promote safer transportation practices; promote compliance and enforcement; eliminate unnecessary regulatory requirements; convert certain exemptions into regulations of general applicability; finalize outstanding petitions for rulemaking; facilitate international commerce; and make these requirements easier to understand.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-04-24376.json","markdown":"https://regulus.evalyn.ai/document/federal-register-04-24376.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-04-24376","source_url":"https://www.federalregister.gov/documents/2004/11/10/04-24376/hazardous-materials-revision-of-requirements-for-carriage-by-aircraft","body":"Federal Register, Volume 69 Issue 217 (Wednesday, November 10, 2004) [Federal Register Volume 69, Number 217 (Wednesday, November 10, 2004)] [Proposed Rules] [Pages 65294-65321] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 04-24376] [[Page 65293]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- Research and Special Programs Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, and 175 Hazardous Materials: Revision of Requirements for Carriage by Aircraft; Proposed Rule Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / Proposed Rules [[Page 65294]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Research and Special Programs Administration 49 CFR Parts 171, 172, 173 and 175 [Docket No. RSPA-02-11654 (HM-228)] RIN 2137-AD18 Hazardous Materials: Revision of Requirements for Carriage by Aircraft AGENCY: Research and Special Programs Administration (RSPA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: RSPA is proposing changes to the requirements in the Hazardous Materials Regulations (HMR) for the transportation of hazardous materials by aircraft. These proposed changes include clarifying the applicability of part 175; excepting cargo aircraft from the quantity limits in Sec. 175.75; reformatting the exceptions in Sec. 175.10 into three sections based on applicability; and providing new separation distances for the shipment of radioactive materials by cargo aircraft. These changes are being proposed in order to clarify requirements to promote safer transportation practices; promote compliance and enforcement; eliminate unnecessary regulatory requirements; convert certain exemptions into regulations of general applicability; finalize outstanding petitions for rulemaking; facilitate international commerce; and make these requirements easier to understand. DATES: Comments must be received by January 31, 2005. ADDRESSES: You may submit comments identified by any of the following methods: --Web Site: http://dms.dot.gov . Follow the instructions for submitting comments on the DOT electronic docket site. --Fax: 1-202-493-2251. --Mail: Docket Management System: U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. --Hand Delivery: To the Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. -- http://www.Regulations.gov . Instructions: You must include the agency name and docket number (RSPA-02-11654 (HM-228)) or the Regulatory Identification Number (RIN) for this notice at the beginning of your comment. You should identify the docket number RSPA-02-11654 (HM-228) at the beginning of your comments. You should submit two copies of your comments, if you submit them by mail. If you wish to receive confirmation that RSPA received your comments, you should include a self-addressed stamped postcard. Internet users may submit comments at http://www.Regulations.gov and may access all comments received by DOT at http://dms.dot.gov . Note that all comments received will be posted without change to http://dms.dot.gov including any personal information provided. Please see the Privacy Act section of this document. Docket: You may view the public docket through the Internet at http://dms.dot.gov or in person at the Docket Management System office at the above address. FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous Materials Standards, (202) 366-8553, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street SW., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Section-by-Section Review of Part 175 III. Miscellaneous Proposals to the HMR IV. Rulemaking Analysis and Notices I. Background The HMR (49 CFR parts 171-180) govern the transportation of hazardous materials in commerce by all modes of transportation, including aircraft (49 CFR 171.1. parts 172 and 173 of the HMR include requirements for classification and packaging of hazardous materials, hazard communication, and training of employees who perform functions subject to the requirements in the HMR. Part 175 contains additional requirements applicable to aircraft operators transporting hazardous materials aboard an aircraft, and authorizes passengers and crew members to carry hazardous materials on board an aircraft under certain conditions. In addition, aircraft operators must comply with the training requirements in 14 CFR parts 121 or 135, as appropriate. RSPA (``we'' or ``our'') and the Federal Aviation Administration (FAA) are proposing amendments to part 175 and other sections of the HMR applicable to transportation of hazardous materials by aircraft. These amendments will increase safety in the air transportation of hazardous materials by: (1) Modifying or clarifying requirements to promote compliance and enforcement; (2) Eliminating unnecessary regulatory requirements; (3) Adopting current exemptions and outstanding petitions for rulemaking; (4) Facilitating international commerce; and (5) Making the regulations easier to understand. On February 26, 2002, RSPA published an advance notice of proposed rulemaking (``ANPRM''; 67 FR 8769) inviting public comments on how to accomplish the goals of this rulemaking. This provided an opportunity for comment on amendments that RSPA is considering and a forum for the public to present additional ideas for improving the safe transportation of hazardous materials by aircraft. We received 26 comments addressing the various issues in the ANPRM from the Air Line Pilots Association, International (ALPA), individual air carriers, and others involved in the transportation of hazardous materials by aircraft. Most commenters were supportive of RSPA's efforts to simplify and revise part 175 in order to clarify some issues in the industry and make the part more user friendly. Some comments received were beyond the scope of this rulemaking and, therefore, are not specifically addressed by RSPA in the comment summary below. Comments concerning the International Civil Aviation Organization's (ICAO) Technical Instructions (TI) for the Safe Transport of Dangerous Goods by Air will be addressed in another docket (Docket HM-215F) which is reviewing Sec. Sec. 171.11, 171.12. and 171.12a. In addition, comments related to reducing the number of undeclared shipments of hazardous materials by passengers and cargo shippers will be used by RSPA and FAA as we continue to work with the airline industry and others on regulatory and non-regulatory initiatives to increase public awareness through outreach and education efforts. II. Section-by-Section Review of Part 175 Sections 175.1 and 175.5 Purpose, Scope and Applicability Part 175 of the HMR prescribes requirements for aircraft operators transporting hazardous materials aboard aircraft that are in addition to those contained in parts 171, 172, and 173 (Sec. 175.1). Part 175 applies to the [[Page 65295]] acceptance for transportation, loading, and transportation of hazardous materials in any aircraft in the United States, and in aircraft of United States registry anywhere in air commerce (Sec. 175.5). Part 175 includes exceptions from the requirements of the HMR for those aircraft under the direct, exclusive control of a government and not used for commercial purposes (Sec. 175.5). Three commenters offered suggestions with regard to clarification of the applicability of part 175. All three suggested that we clarify in Sec. 175.1 that part 175 applies to all persons who perform acceptance functions, including indirect air carriers. We believe there is some confusion over the applicability of the HMR, specifically, part 175 to persons who are not air carriers, such as freight forwarders. Although the language of Sec. 175.1 refers to aircraft operators, part 175 also applies to persons who are not direct air carriers but perform the same functions. Such persons include: persons who accept packages for air commerce; ground handling crews; contracted employees; air freight forwarders; and subsidiary companies formed by aircraft operators that perform pallet building and handle, load, and unload hazardous materials in air commerce. Currently, some packaging, shipping, and freight forwarding facilities erroneously believe they are not subject to the requirements of the HMR, in particular Sec. 175.26, because they are not air carriers. The HMR require each person who accepts or transports packages for transportation by air to display notification signs. Packaging, shipping, and freight forwarding facilities are not excepted from Sec. 175.26, because they are performing carrier functions when they accept packages on a carrier's behalf. Therefore, in this rulemaking we are proposing to clarify that the requirements of the HMR apply to those persons who offer, accept, or transport hazardous materials in commerce by aircraft to, from, or within the United States. In addition, we are modifying Sec. 175.1 to clarify that part 175 applies to any person who performs, attempts to perform, or is required to perform any function subject to this subchapter, including-- (1) Air carriers, indirect air carriers, and freight forwarders and their flight and non-fight employees, agents, subsidiary and contract personnel (including cargo, passenger and baggage acceptance, handling, loading and unloading personnel); and (2) Air passengers that carry any hazardous material on their person or in their carry-on or checked baggage. For purposes of clarity we are proposing to move the relevant paragraph of Sec. 175.5 to Sec. 175.1 or Sec. 173.3 (see preamble discussion of Sec. 173.3). We are also proposing to remove unnecessary provisions of Sec. 175.5, such as Sec. 175.5(a)(1). Section 175.3 Unacceptable Hazardous Materials Shipments No amendments are proposed for this section. Section 175.10 Exceptions Section 175.10(a)(2) excepts from the HMR certain hazardous materials required to be aboard an aircraft in accordance with applicable airworthiness requirements and operating instructions. However, items of replacement for such materials and other company materials (COMAT) of an airline that are hazardous materials must be properly classed, described, marked, labeled, packaged, handled, stored, and secured in accordance with the HMR. These requirements are discussed in an advisory notice on COMAT published on December 13, 1996 (61 FR 65479). The HMR provide the following limited exceptions for COMAT: (1) Items of replacement for installed equipment containing hazardous materials are excepted from the packaging requirements of the HMR if they are contained in specialized packaging providing at least an equivalent level of protection to that of the required packaging; (2) aircraft batteries are excepted from the quantity limitations in Sec. Sec. 172.101 and 175.75(a); and (3) an aircraft tire assembly is not subject to the HMR if it is not inflated to a gauge pressure exceeding the maximum rated pressure for the tire. Other hazardous materials such as paint, chemicals for corrosion removal, automotive batteries, wastes, and engine-powered ground equipment containing fuels do not qualify for this limited relief. Section 175.10 also provides limited exceptions for the transportation of: (1) Certain personal items of passengers or crew members that are hazardous materials, such as toiletries, alcoholic beverages, and medicinal items; and (2) certain hazardous materials for special aircraft operations, such as avalanche control flights, aerial applications, and sport parachute jumping. In its comments to the ANPRM, ALPA stated that reorganizing Sec. 175.10 into three sections, applicable to passengers and crewmembers, COMAT, and special operations respectively, would produce better organization than the current format and be more user friendly. In addition, ALPA stated that the exceptions, including those applicable to persons with medical conditions, should remain in Sec. 175.10. ALPA also stated that more specific wording should be added prohibiting carriage of another carrier's COMAT. In general, ALPA stated that COMAT should only be carried to facilitate repair or dispatch of an ``aircraft-on-ground.'' According to ALPA, it is common practice for an airline to pre-position oxygen bottles, aircraft batteries, and tires at outlying stations. ALPA stated that all these types of items could be pre-positioned by way of surface transportation domestically and pre-positioned as declared hazardous material on an all-cargo aircraft, if required, internationally. ATA did not oppose reorganizing Sec. 175.10, but, stated that the ``ATA member air carriers are familiar with the application of Sec. 175.10 as it now stands.'' ATA stated it did not see the need to remove any of the exceptions applicable to persons with medical conditions from Sec. 175.10 and place them into another part of the HMR. In reference to the COMAT exceptions, ATA commented that clarification would be helpful. ATA stated that ``regarding the few exceptions applying to the operators materials and the aircraft-on-the ground (AOG) question, DOT must realize that there is no possible way for individual airlines to manage a COMAT program if the exceptions apply to only AOG shipments. The few COMAT exceptions that exist should apply to the operator's property at any time and place. The few exceptions are helpful in the operation of an airline in situations other than AGO.'' ATA commented that RSPA should provide additional exceptions in Sec. 175.10 for personal monitors and devices, but questioned RSPA's ability to keep current with new technology changes and maintain a large list of such items. ATA stated that ``the entire list should be reviewed and such issues as the number of CO 2 cartridges in a life jacket should be harmonized. (e.g., ICAO permits two spare cartridges, 49 CFR permits one spare cartridge), etc. It would be helpful if the lists could be compared and matched.'' ATA also stated that hazardous materials for emergency response situations should not be excepted from the HMR, and that the current exemption process is appropriate and adequate. ATA stated that, ``we suggest that there could be unforseen safety implications should certain considerations be made for emergency response that takes decisionmaking out [[Page 65296]] of the hands of DOT-RSPA. An exemption must come from DOT-RSPA.'' ATA commented that only provisions on aircraft airworthiness should require FAA approval. The Regional Airlines Association (RAA) recommended that we relocate all ``excepted hazmat'' to a single, easily referenced section. According to RAA, present exceptions are located throughout the subchapter, e.g., inconsistent exceptions for the air mode exist in Sec. 175.10 and also in Sec. 173.307. It recommended RSPA develop this new ``excepted hazmat'' section with no other exceptions included in this new section, divided by modes, e.g., ``Excepted Hazmat: All modes.'' RAA stated that this approach will also achieve better consistency regarding exceptions in the HMR. RAA also stated that the Sec. 175.10(a)(5) reference to 14 CFR 108 is obsolete and should be updated. In addition, RAA recommended that RSPA ``create within part 175, a dedicated subpart containing only the requirements (or with very limited references to other locations) for ``R & R (recognition and refusal) only'' air operations, those choosing not to transport regulated hazmat. A & C (acceptance and carriage) operators may need to refer to this subpart for certain rules (e.g., discrepancy reporting, training, etc.).'' RAA states that this is necessary because, ``it is extremely difficult to extract from part 175 the requirements that apply to R & R carriage.'' RAA also recommended that RSPA expand the COMAT exception for ``R & R'' carriers to include small quantity hazardous material COMAT ``items used for repair,'' e.g., bonding and sealant kits, as well as certain items presently allowed in the passenger cabin. RAA stated that this is necessary because ``R & R carriers presently can ship only a very limited number of hazmat COMAT.'' RAA stated that operators should be permitted to carry items considered hazardous materials, in limited quantities, as passengers and crewmembers do, e.g., toiletries, alcohol, etc. that are hazardous due to their flammable properties. RAA stated that unlike these items referenced, the COMAT is already properly packaged and unopened. According to RAA, ``This one change and clarification of the Sec. 175.10 exceptions would save carriers hundreds of thousands of dollars in labor, transportation costs, AOG aircraft and lost revenues with only an insignificant increase in risk. For example, the transportation costs and time needed to transport small items used for minor aircraft repairs is extremely costly for R & R carriers. Often these kits consist only of a 1-2 oz individually sealed tube within a prefabricated kit. The mechanic would fly to the station on the carrier's aircraft but his/her repair kit cannot. Consequently, an air carrier's mechanic often takes lengthy `road trips' to simply transport the needed repair kits.'' RAA also recommended RSPA remove all rules related to ``aerial work operations'' and relocate them to one specific subpart (perhaps a revised subpart C, titled ``Special Air Transport Exceptions and Rules, and Aerial Work Operations Involving Hazardous Materials'') stating that ``most readers of part 175 do not need to read thru the `clutter' of portions of part 175 including: Sec. 175.10(a)(3), (9), (11), and (12), and Sec. 175.85 (c)(2) and (3).'' Federal Express (FedEx) commented that it understands the exceptions, including COMAT, as written. However, it indicated that clarification would be helpful regarding COMAT in order to prevent another carrier's materials from being transported on its aircraft as hazardous materials. FedEx commented that the authority to transport hazardous materials for emergency response situations where the possibility of imminent loss of life or property exists should be granted only through an exemption issued by DOT and not by an exception in the HMR. FedEx recommended that, in the absence of an exemption, the material be shipped fully regulated. United Parcel Service (UPS) commented regarding revising the approval provisions in part 175, stating, ``RSPA may consider revising 49 CFR 175.10(a)(12)(vi), 175.31(a), and 175.85(c)(2) to recognize the integration of the FAA's Civil Aviation Security Organization into the newly formed Transportation Security Agency (TSA). These provisions of the HMR require persons to make certain communications to FAA Civil Aviation or Air Transportation Security Field Offices. In light of the TSA integration, UPS is uncertain as to whether such Security Field Offices still exist.'' UPS commented that RSPA should reorganize Sec. 175.10 into three sections based on their applicability. UPS does not agree with applying the COMAT exception to the transportation of only those materials intended for aircraft-on-ground. UPS stated: There is no safety justification or other compelling basis for limiting the COMAT exception to the transportation of COMAT intended for aircraft-on-ground. Section 175.10(a)(2) is narrowly drafted to provide an exception solely for (i) hazardous materials required to be carried aboard an aircraft, and (ii) items of replacement for such hazardous materials. This narrow exception provides a more than adequate margin of safety. RSPA fails to cite any incidents directly resulting from the transportation of COMAT not intended for an aircraft-on-ground. Without an articulated reason for why a drastic limitation of the HMR's COMAT provisions would promote safe air transportation, RSPA should not revise Sec. 175.10(a)(2). Southwest Airlines commented on the exceptions in Sec. 175.10, stating that ``the personal smoking material exception in Sec. 175.10(a)(10) is often confusing. While safety matches or a lighter are allowed on one's person, air carriers are often left with the decision on how many lighters or safety matches to allow each customer to carry. A regulatory published limit on the number of lighters and/or safety matches allowed on one's person would greatly help consistency among carriers and the Transportation Security Administration (TSA).'' Southwest Airlines also stated, ``when transporting ammunition under the exception in Sec. 175.10(a)(5), it would be helpful (if this is the intent) to add a sentence that states (as provided in Sec. 176.63 for OMR-D) that magazines or clips must have the primers (firing mechanism) protected from accidental initiation.'' Southwest Airlines also indicated that it attempted to identify mechanical limbs operated by carbon dioxide cartridges (Sec. 175.10(a)(18)), for purposes of training staff, and were unsuccessful in identifying any currently on the market. Therefore, there may be no need to specify this exception if technology is not currently available. Southwest stated that the exception in Sec. 175.10(a)(25) for carbon dioxide cylinders when used in a self-inflating life vest, is inconsistent with the allowable quantities of two small cylinders plus two spares in the international rules, and that consistency is needed between the two sets of regulations. Southwest stated that in addition, the exception for carbon dioxide, solid (dry ice) should be reviewed and compared with the simplified version in the IATA Dangerous Goods Regulations that limits dry ice to 4.4 pounds in checked or carry on baggage. Southwest Airlines also indicated that a reference to the diagnostic specimen exception would be helpful in clarifying the intent of Sec. 173.199 provisions with shippers and carrier employees. In addition, Southwest Airlines indicated that no current exception exists for units that previously contained fuel, e.g., camp stoves and internal combustion engines, and suggested regulations be reviewed to determine if an exception [[Page 65297]] could be provided for such units that have been emptied. Southwest Airlines stated that, ``Keeping the exceptions [applicable to persons with medical conditions] together simplifies the use of the regulations and maintains consistency. Every change requires updating of manuals and training material to accommodate the transition of information. Change should be substantive.'' With regard to providing additional exceptions for personal monitors and devices such as apnea and heart monitors, nebulizers, and nerve stimulators, Southwest stated, ``Any exceptions that provide consistency with both the HMR and the ACAA (14 CFR 382) are welcome. The difficulty will be wording the exception in a manner that is general enough to meet the changing technologies in the medical equipment field.'' Airborne Express indicated that it does understand that the COMAT exception does not apply to the transportation of another air carrier's material; however, it believed that a clarification would be helpful. Whether the COMAT exception should apply only to the transportation of those materials intended for an aircraft-on-ground (AOG), Airborne Express stated, ``DOT must realize that there is no good way to manage a COMAT program if the exceptions apply only to AOG shipments. The few COMAT exceptions that exist should apply to the operator's property at any time and place. The few exceptions are helpful in the operation of an airline in situations other than AOG.'' Airborne Express indicated that the current exemption process regarding hazardous materials for emergency response situations is appropriate and adequate as it is applied today. The United States Parachute Association (USPA) supports the retention of exceptions for skydiving activities in Sec. 175.10, or a new section, which allows ``smoke grenades, flares, or similar devices'' when carried only for skydiving purposes. USPA stated that for consistency with other Federal regulations, the term ``sport parachute jumping activity'' should be replaced by the term ``parachute operation,'' which was incorporated in 14 CFR part 105. Additionally, USPA proposed the inclusion of other devices often used, and in some cases required by the FAA and/or USPA, for skydiving safety. These devices include items such as light systems, oxygen bottle (bailout bottle), floatation device, and an automatic activation device. USPA recommended Sec. 175.10(a)(9) be written as follows: ``lights, oxygen bottles, floatation devices, automatic activation devices, smoke grenades, flares, or similar devices carried only for use during a parachute operation.'' Several commenters expressed concern on the proposal to remove or revise exceptions in Sec. 175.10 on personal items, medicines, perfumes, and alcoholic beverages transported on aircraft by passengers or crew members and requested that the exceptions be maintained in Sec. 175.10 as currently written. Commenters believed that any such revisions would not enhance air transportation safety and would create inconsistencies between the HMR and ICAO TI. Commenters included: Dangerous Goods Advisory Council (DGAC), Distilled Spirits Council of the United States (DISCUS), Association of Hazmat Shippers (AHS), International Association of Airport Duty Free Stores (IAADFS), Inflight Sales Group, Inc. (ISG), and the Cosmetic, Toiletry, and Fragrance Association (CTFA). The American Chemistry Council (ACC) stated that Sec. 175.10 should be reorganized into three sections applicable to passengers and crewmembers, COMAT, and special operations. In addition, ACC stated, ``Passengers are shippers who are not directly under the control of the carrier prior to boarding the aircraft. However, while on the aircraft, passengers must be monitored by the carrier.'' ACC stated that, if Sec. 175.10 is reorganized, reference to persons with medical conditions should remain in this section. ACC stated that an exception to the HMR should be provided for hazardous materials necessary for emergency response situations where there is a possibility of imminent loss of life or property. ACC stated this exception should be limited to chartered aircraft taking part in the incident response. ACC stated, ``Applying this limitation to the exception along with, using ``authorized'' packaging for these materials, will enhance safety by limiting public access to these flights.'' Based on the comments received, we are proposing to divide the current exceptions in Sec. 175.10 into three different sections: Sec. 175.8, 175.9, and 175.10. Each section will cover a category of exceptions. Section 175.8 will cover operator equipment and supplies (including COMAT); Sec. 175.9 will cover special aircraft operations (crop-dusting, parachuting, etc.); and Sec. 175.10 will cover exceptions for passengers and crewmembers. We believe that categorizing these exceptions will make the regulations easier to use and minimize confusion concerning the applicability of certain paragraphs. The proposed new Sec. 175.8 incorporates the exceptions for operators covering: --Aviation fuel and oil. --Hazardous materials required for airworthiness and spares. --Oxygen supplied by the operator. --Dry ice used by the operator in food service. --Alcohol, perfume, and lighters carried for use or sale by the operator. --Aircraft equipment spares (COMAT). The proposed Sec. 175.8 also clarifies that the exceptions for aircraft spares (COMAT) are applicable only to an operator transporting its own equipment. The proposed paragraph on COMAT deletes the references to tires as this exception already exists in Sec. 173.307(a)(2), which is also being revised. We are proposing to revise Sec. 173.307(a)(2) to reference Special Provision A59 for tires transported by aircraft. Special Provision A59 is added to Sec. 172.102 and is aligned with the requirements in ICAO TI. Special Provision A59 deals with serviceable and undamaged tires versus unserviceable and damaged tires. It also requires tires and their valve assemblies to be protected from damage during air transport. The proposed new Sec. 175.9 incorporates exceptions for the following special aircraft operations: --Aerial seeding, crop dusting, spraying, etc. --Smoke grenades, flares, release devices, lights, and life-jackets for parachuting operations. --Smoke grenades, flares, pyrotechnics, affixed to aircraft during air shows. --Weather control, environmental protection, forest preservation, avalanche control. Also added to this proposed section are exceptions for operations dedicated to firefighting and prevention; air ambulance and search and rescue operations. References to FAA approvals throughout this section have been edited to reflect either the FAA Flight Standards District Office or the FAA Principal Operations Inspector, whichever is more appropriate. In the new Sec. 175.10, we are proposing that this section only contain exceptions for hazardous materials carried by passengers and crewmembers. As many paragraphs from Sec. 175.10 have been reassigned to Sec. Sec. 175.8 and 175.9, the remaining sub-paragraphs are renumbered, as indicated in the following table. Many of the remaining paragraphs in Sec. 175.10(a) have been edited for clarification only. The most common edit was to put the name of the [[Page 65298]] excepted article at the beginning of the sentence so that it is easy to find (as opposed to having a sentence start out with ``With the approval of the operator * * * ''). Sections and paragraphs that have significant changes are listed below--by their new section and paragraph number. ---------------------------------------------------------------------------------------------------------------- Old paragraph 175.10(a) New paragraph ---------------------------------------------------------------------------------------------------------------- (a)(1) aviation fuel and oil in tanks........ 175.8(a). (a)(2) operator equipment, spares............ 175.8(a)&(b), 173.307(a)(2), 172.102 A59. (a)(3) aerial seeding, crop dusting, etc..... 175.9(a). (a)(4) medicinal/toilet articles, 2.2. 175.10(a)(1)--self defense spray (a)(9). aerosols. (a)(5) small arms ammunition................. 175.10(a)(8). (a)(7) oxygen furnished by operator.......... 175.8(c). (a)(8) implanted medical devices............. 175.10(a)(3). (a)(9) parachuting devices................... 175.9(b). (a)(10) safety matches/lighters.............. 175.10(a)(2). (a)(11) pyrotechnics affixed to aircraft..... 175.9(c). (a)(12) hazmat dispensed, environmental...... 175.9(e). (a)(13) dry ice.............................. 175.10(a)(10), 175.8(d). (a)(14) transport incubator.................. 175.10(a)(13). (a)(15) alcohol, etc., carried by operator... 175.8(e). (a)(16) duty free perfume, etc............... 175.10(a)(5). (a)(17) alcoholic beverages.................. 175.10(a)(4). (a)(18) gas cylinders for mechanical limbs... 175.10(a)(12). (a)(19) wheelchair, nonspillable battery..... 175.10(a)(16). (a)(20) wheelchair, spillable battery........ 175.10(a)(17). (a)(21) hair curlers, butane................. 175.10(a)(6). (a)(22) mercurial barometer/thermometer...... 175.10(a)(14). (a)(23) heat-producing articles.............. 175.10(a)(15). (a)(25) lifejacket with gas cartridges....... 175.10(a)(11). (a)(26) small mercury thermometer............ 175.10(a)(7). ---------------------------------------------------------------------------------------------------------------- Section 175.10(a)(1) is edited to change the maximum net quantity of inner packaging for medicinal/toilet articles from 473 ml to 500 ml for consistency with other even metric quantities. Self-defense spray has been reassigned to its own paragraph since it has little in common with medicinal and toilet articles. Section 175.10(a)(2) allows safety matches and approved lighters to be carried in carry-on baggage as well as on one's person. This is based on a recent RSPA clarification letter. Section 175.10(a)(6) is clarified by including the North American term ``curling iron'' to describe hair curlers and by citing ``butane'' as an example of a hydrocarbon gas. Section 175.10(a)(8) is modified to limit the amount of small arms ammunition allowed in checked baggage to 5 kg per person. Previously the only limiting term was ``personal use''. This had the potential of allowing several hundred pounds of ammunition to be carried in checked baggage, which is an unreasonable risk. Based on comments from Southwest Airlines, this sub-paragraph is also clarified to indicate that ammunition clips and magazines must be securely boxed. Section 175.10(a)(9) puts self-defense spray in its own sub- paragraph where it can be seen more easily. It had previously been included in the quantity limits for medicinal and toilet articles. Section 175.10(a)(10) currently includes two different net quantities allowed for dry ice--2 kg (4.4 pounds) and 2.3 kg (5.0 pounds)--depending on how it was being carried. It has also been unclear if the marking requirements applied only to cargo or dry ice in checked baggage. This proposed new subparagraph allows 2 kg (4.4 pounds) to be carried in checked or carry-on baggage and clarifies that the marking requirements are for checked baggage only. The exception for dry ice used in food service by the operator is moved to Sec. 175.8. The 2.3 kg (5.0 pounds) exception for dry ice transported as cargo is now incorporated in Sec. 173.217. Section 175.10(a)(11) is modified to provide that self-inflating life jackets may be carried with two cartridges of CO 2 (or other suitable div. 2.2 gas), as adopted in the HM-215E final rule (68 FR 44991). Section 175.10(a)(15) is clarified by replacing the term ``underwater torch'' with the North American term ``diving lamp''. The current Sec. 175.10(b) paragraph dealing with the stowage of oxygen cylinders is moved to the new section Sec. 175.510. New Sec. 175.10(b) would include the provisions adopted in HM-215E authorizing the carriage of these excepted hazardous materials in passenger baggage that has unintentionally been separated from the flight carrying the passenger (misrouted). Section 175.20 Training Section 175.20 requires aircraft operators to comply with all applicable requirements in parts 106, 171, 172, and 175. In addition, hazmat employers must ensure all hazmat employees receive training in accordance with part 172. Initial training under the HMR must be conducted within 90 days after employment begins or a change in the employee's job function. Recurrent training must be conducted at least every three years. Section 175.20 also refers to the training requirements of the FAA under 14 CFR 121.135, 121.401, 121.433a, 135.323, 135.327, and 135.333, which additionally address training for air carriers. A ``hazmat employee'' is defined in Sec. 171.8 to include ``all persons who in the course of employment perform functions that directly affect hazardous materials transportation safety.'' This does not include every person who works around an area where, for example, hazardous materials are loaded, unloaded, handled, and stored. The employee's functional relationship to hazardous materials transportation safety, rather than incidental contact with hazardous materials in the workplace, is the primary factor in determining whether an individual is a ``hazmat employee.'' [[Page 65299]] In its comments to the ANPRM, ALPA stated, ``the requirements as outlined in part 172, subpart H are adequate. However, it would be helpful if the hazardous materials training requirements listed in parts 121 and 135 were reproduced in Sec. 175.20.'' ALPA indicated that cargo departments of air carriers are often expected to provide hazardous materials training and do not normally have copies of parts 121 or 135. ALPA also indicated that it should be clarified that persons responsible for screening for unacceptable hazardous materials must be trained. ALPA suggested that training be required for baggage handling, sorting, security, and other carrier personnel to enable them to identify undeclared hazardous materials in cargo. ALPA indicated that the air carriers they deal with do understand the applicability of training requirements to their personnel regarding 49 CFR versus 14 CFR. Airborne Express stated, ``We do not believe that further training on undeclared hazardous materials is necessary. Baggage handling, sorting, security, and other carrier personnel are already trained to recognize hazardous materials shipments in their job specific environment. We already have established procedures in place for specifically trained individuals to repackage or clean up leaking shipments. These procedures take the responsibility out of the hands of our sorter personnel.'' They also commented that aircraft carriers do understand what training requirements apply to their personnel (14 CFR versus HMR.). FedEx commented that the training requirements applicable to aircraft operators and hazardous materials employees are clear and understandable as currently written. ATA expressed satisfaction in understanding the training applicable to an aircraft operator. However, ATA indicated that Sec. 175.1 is applicable only to aircraft operators, so it will be necessary to rewrite and clarify its application to entities that are not direct air carriers, but perform air carrier functions, e.g., indirect air carriers. ATA further stated, ``there are other relationships, aside from indirect air carriers, that perform functions on behalf of a carrier, for instance, that of an air freight pick up and delivery contractor (trucker) or a handling agent which typically performs certain handling functions on behalf of an airline. DOT needs to clearly establish that the training liability and responsibility apply to these entities in the same manner as they apply to a direct air carrier.'' ATA further stated, ``Baggage and sorting personnel report to their supervisors when a bag or package is leaking, report the presence of an unfamiliar source of heat or report the omission of an unfamiliar and/ or noxious odor. Other than warning signs such as these, how possibly could one be trained to question what is in a closed bag or package?'' ATA indicated that its member airlines understand how training requirements apply to their personnel (e.g.,14 CFR verses 49 CFR) and that each individual air carriers's training program is approved by the airlines' Principal Operating Inspector (POI). ATA further stated, ``the POI has, by necessity, been dependent on the Dangerous Goods/ Cargo Security Coordinators, whose working knowledge of dangerous goods should qualify them to review and recommend approval of a carrier's Training Program. However, with the re-organization of the U.S. FAA regions, these approvals may now be the responsibility of headquarters TSA/FAA Dangerous Goods. A move to a central location for approval of training programs would provide assistance in the standardization of such programs.'' Most commenters to the ANPRM indicated they understand the applicability of training under the HMR and 14 CFR. Some commenters expressed confusion regarding the definition of a ``hazmat employee''. We believe the revision of Sec. 175.1 as proposed in this rulemaking will clarify that the HMR ( including training) applies to any person who performs, attempts to perform, or is required to perform any function subject to this subchapter, including air carrier","truncated":true,"body_characters":191205}