UPS — Hazardous Materials Safety Interpretation

Page 1U.S. Department 1200 New Jersey Avenue SE of Transportation Washington, DC 20590 Pipeline and Hazardous Materials Safety Administration SEP 27 2011 Mr. Samuel Elkind Corporate Regulated Goods Manager 55 Glenlake Parkway, NE Atlanta, GA 30328-3474 Ref. No.: 11-0164 Dear Mr. Elkind: This responds to your July 13, 2011 letter seeking clarification ofthe requirements in the International Civil Aviation Organization's (ICAO) Technical Instructions and the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). Specifically, you ask ifthe absorbent material requirements of the HMR in 173.27(e) apply to export air shipments, or ifthey apply to all air shipments, i.e, domestic, import and export shipments, when they are prepared and offered in accordance with the ICAO Technical Instructions. Section 171.22 gives shippers and carriers the option ofpreparing shipments ofhazardous materials offered or intended for transportation by aircraft in conformance with the ICAO Technical Instructions. However, as you state in your letter, § 171.22(g)(5) requires that export shipments conform to the general packaging requirements in §§ 173.24 and 173.24a. Section 173.24(i) states that "Except as provided in subpart C ofpart 171 ofthis subchapter, packages offered or intended for transportation by aircraft must conform to the general requirements for transportation by aircraft in § 173.27." Subpart C ofpart 171 includes § 171.22. Therefore, when using the ICAO Technical Instructions, the absorbent material requirements ofthe HMR in 173.27(e) apply to export air shipments. ICAO recently adopted revised packing instructions for incorporation in the ICAO Technical Instructions. These packaging instructions require a secondary means of closure for all liquids in combination packagings, or when a secondary means ofclosure cannot be applied, this requirement may be satisfied by using a liner or other form of containment, such as absorbent material. ICAO Packing Instructions require enough absorbent material to absorb the entire contents for Packing Group I material and require absorbent material for certain materials within#

Page 2specific Packing Instructions. As information, an upcoming final rule under Docket No. PHMSA-07-29364 (HM-231A), Hazardous Materials; Packages Intended for Transport by Aircraft, will address the ICAO revisions. I hope this answers your inquiry. If you need additional assistance, please contact the Standards and Rulemaking Division at (202) 366-8553. Sincerely, ~C~ Ben Supko Acting Chief, Standards Development Standards and Rulemaking Division#

Page 3\A\ ;U1+ev'8/73121 (e) 8 173. .2N 55 Glenlake Parkway, NE Atlanta, GA 30328-3474 July 13,2011 )}-?Jlfo1 Mr. Charles Betts Director, Standards and Rulemaking Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation - PHH-lO 1200 New Jersey Ave., SE - East Bldg, 2nd Floor Washington, DC 20590 Re: Application of 49 CFR 173.27(e) for shipments prepared under ICAO Technical Instructions Dear Mr. Betts: UPS seeks clarification as to whether and when the absorbent material requirements identified in 49 CFR 173.27(e) apply to air shipments that are prepared and offered in accordance with the ICAO Technical Instructions (TI). While in the past, the ICAO TI contained general requirements for absorbent materials that were very similar to those prescribed by §173.27 (e), in the current ICAO edition, absorbent materials are now prescribed by each applicable packing instruction. In other words, there is no longer a general requirement for absorbent material stated in the ICAO TI. On the other hand, there may be some intent in the HMR to apply a general requirement for absorbent material, but t1!e cross-references among applicable regulations obscure the exact intent. Specifically, in § 173.22, the authorization to use international regulations such as the ICAO TI, § 171.22(g)(5) states the following: (g) Additional requirements for the use ofinternational standards and regulations. All shipments offered for transportation or transported in the United States in accordance with this subpart must confonn to the following requirements, as applicable: * * * (5) For export shipments, the general packaging requirements in §§173.24 and 173.24a ofthis subchapter; A reference to the general package requirements for air shipments appears in §173.24(i), which provides the following limited reference to the requirements of §173.27: (i) Air Transportation. Except as provided in subpart C ofPart 171 ofthis subchapter, packages offered or intended for transportation by aircraft must confonn to the general requirements for transportation by aircraft in § 173.27. 'PQcka3~nj#

Page 4Since Subpart C of Part 171 includes § 171.22, the emphasis appears to settle specifically on export shipments. In other words, this pair of requirements appears to create a situation in which absorbent material conforming to § 173.27(e) is required for export shipments conducted in accordance with the ICAO TI, but not for any other type of shipment prepared under the ICAO TL A purely domestic shipment appears to be excepted from § 173.27( e), as apparently also are import or transit shipments. However, that result appears to yield an inconsistent application ofabsorbent material requirements, which may not be PHMSA's intent. Therefore, UPS requests PHMSA's clarification of the requirements for use of absorbent for air shipments prepared in accordance with the ICAO TL Such confirmation will enable UPS to fully understand the requirements and guide its customers as appropriate. Sincerely, o IJ?(2"-1 ~ind Corporate Regulated Goods Manager#