# 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

- **operation:** document
- **citation:** 76 FR 3308
- **title:** 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
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2011-01-19
- **effective on:** 2011-01-19
- **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.
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Federal Register, Volume 76 Issue 12 (Wednesday, January 19, 2011) [Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)] [Rules and Regulations] [Pages 3308-3389] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2010-33324] [[Page 3307]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- 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 [[Page 3308]] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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. [[Page 3310]] 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 
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