Section 171.7

Paragraph (a)(3) (incorporation by reference materials) is updated to include the most recent editions of the
[[Page 76046]]
ICAO Technical Instructions, the IMDG Code and the UN Recommendations. The updated editions of these standards become effective January 1, 2005. Additionally, the International Maritime Organization (IMO) recommends authorizing a oneyear transition period, with a delayed compliance date of January 1, 2006, for the use of the updated edition (Amendment 32) of the IMDG Code.

The updated additions are as follows:
The ICAO Technical Instructions, 20052006 Edition.
The IMDG Code, Amendment 32.
The UN Recommendations, Thirteenth Edition.

The UN Manual of Tests and Criteria, 4th Revised Edition.

Paragraph (b) (list of informational materials not requiring incorporation by reference) is revised by adding an additional reference for a new method for determining the size of an emergency relief device for portable tanks transporting organic peroxides. This revision is based on a petition for rulemaking numbered P1428. The petition was submitted by the Organic Peroxides Producers Safety Division of the Society of the Plastics Industry, Inc.

One commenter recommended that we revise the ``Note to Paragraph (h)(3)(vi)'' in Sec. 173.225 to maintain format consistency with the incorporation by reference entry for ``Example of a Test Method for Venting Sizing: OPPSD/SPI Methodology'' found in Sec. 171.7(a). We disagree. The reference to a second example of a test method for venting sizing is not found in Sec. 171.7(a) as a material incorporated by reference. Rather, it is found in Sec. 171.7(b) as informational material not requiring incorporation by reference. Therefore, for clarification we are revising Sec. 171.7(b) to include the reference to the ``American Institute of Chemical Engineers Process Safety Progress Journal.'' In addition, we are revising the ``Note to Paragraph (h)(3)(vi)'' in Sec. 173.225 to include a reference to Sec. 171.7(b), list of informational materials not requiring incorporation by reference.

Section 171.8

The definition for ``salvage packaging'' is revised to include the term ``nonconforming.'' The term ``nonconforming'' was added to the definition by the UN Committee of Experts in December 2000 to accommodate the use of salvage packaging for. Occasionally an undamaged package is found to be tested to a performance level which is less than that required for the specific substance it contains (e.g., a drum tested to PG II standards containing a PG I substance). In other instances, the package is found to be a nonperformance tested packaging containing a regulated substance. In these situations, it may not be safe or practical to transfer the material to the correct packaging to continue on to the consignee in order to ensure compliance with the HMR. Therefore, the use of salvage packaging to contain ``non conforming'' packages will minimize the risk to those handling the package during its transport back to the shipper or to an appropriate disposal location.

Section 171.11

Paragraph (d)(15) is revised to clarify that the limitations therein also apply to oxygen generators contained in personal breathing equipment. In addition, paragraph (d)(17) is revised to indicate that an organic peroxide that is not identified by a technical name in any of the organic peroxide tables found in Sec. 173.225 must be approved by the Associate Administrator in accordance with the requirements of Sec. 173.128(d).

Section 171.12

In Sec. 171.12, paragraph (b)(20) is revised to indicate that an organic peroxide that is not identified by a technical name in any of the organic peroxide tables found in Sec. 173.225 must be approved by the Associate Administrator in accordance with the requirements of Sec. 173.128(d).

Section 171.12a

Paragraph (a) is revised to clarify the requirements for the return to Canada of bulk packagings that correspond to DOT or UN
Specifications. Paragraph (b)(9)(ii) is revised to indicate that the shipping certification must be completed for shipments from Canada that enter the U.S. Paragraph (b)(18) is revised to indicate that an organic peroxide that is not identified by a technical name in any of the organic peroxide tables found in Sec. 173.22 must be approved by the Associate Administrator in accordance with the requirements of Sec. 173.128(d).

Section 171.14

Paragraphs (d) and (d)(1) are revised to authorize a delayed implementation date for the amendments in this final rule. The effective date of this final rule is January 1, 2005. We are also, authorizing a delayed compliance date of January 1, 2006, which is comparable to the transitional provisions provided in the final rule published under Docket HM215E. The delayed mandatory compliance date offers sufficient time to implement the new requirements.

Paragraph (d)(2) is revised to authorize certain intermixing of old and new requirements.
Part 172

Section 172.101

The regulatory text preceding the Hazardous Materials Table is revised as follows:

Paragraph (c)(11) and the corresponding note to paragraph (c)(11) are amended to revise a section reference. The reference to Sec. 173.225(c) in the first sentence is revised to read Sec. 173.225(b) and the reference to Sec. 173.225(c)(2) in the note to paragraph (c)(11) is revised to read Sec. 173.225(b)(2).

Paragraph (d)(4) is revised by adding a statement indicating that when the abbreviation ``Comb liq.'' is found in the ``Hazard class or division'' column of the Hazardous Materials Table (column 3), the material falls into the ``Combustible liquid'' hazard class.

Paragraph (i)(3) of this section is revised to specify that Column 7 of the Hazardous Materials Table contains additional bulk packaging authorizations and limitations for the use of UN portable tanks.

Sec. 172.101 The Hazardous Materials Table (HMT). In this final rule we made various amendments to the HMT. Readers should review all changes for a complete understanding of the Table amendments. The HMT has been reprinted in its entirety due to the numerous changes. Under this final rule the changes to the HMT for the purpose of harmonizing with international standards, unless otherwise stated, include, but are not limited to the following:

UN3468 Hydrogen in a metal hydride storage system

A commenter stated that by adding the shipping names for desensitized explosives under identification numbers UN3379 and UN3380, approvals should be modified to authorize the use of classifications for the applicable hazardous materials. The commenter also noted that due to these additions, the definitions for flammable solids and flammable liquids require revision to account for the new shipping names. We do not anticipate a significant number of explosives being assigned to these shipping names. Therefore, we disagree with the commenter's contention that each holder of an EX number request an updated shipping classification. In addition, we do not agree with the commenter's request to revise the definitions of flammable solid and flammable liquid to include the additional proper shipping names. The definitions of flammable solid and flammable liquid adequately describe materials assigned to those shipping names. Additionally, shipping names are not found under hazard class definitions, but rather, in the HMT.

In addition, we are continuing to allow the use of the following specific Organometallic entries: UN1366, UN1370, UN2005, UN2445, UN3051, UN3052, UN3053, and UN3076. However, we anticipate removing these entries from the HMT by January 1, 2007.

For Division 4.1, Packing Group I materials, the use of UN portable tanks is not authorized.

For Division 4.3 materials with a subsidiary class of 6.1, in Packing Group I, the use of portable tanks is not authorized.

For materials of Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and Classes 8 and 9, in Packing Group II, Special Provisions T3 is specified.

For Division 4.2, Packing Group I materials, T21 and TP7 is specified.

For Division 4.3, Packing Group I materials, T9 and TP7 is specified.

For Division 5.1, Packing Group I materials, the use of UN portable tanks is not authorized.

For Division 6.1 and Class 8, Packing Group I materials, T6 is specified.

For materials of Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and Classes 8 and 9, in Packing Group III, Special Provisions T1 is specified. [[Page 76049]]

UN2191 Sulfuryl fluoride

Also, see Sec. 172.102 for additional HMT amendments. Appendix B to Sec. 172.101

In Appendix B to Sec. 172.101, List of Marine Pollutants, we removed the entries ``Diphenyl oxide and biphenyl phenyl ether mixtures,'' ``Isoamyl mercaptan,'' ``Pentanethiols,'' and
``Tetrachlorophenol.'' We revised the entry ``2, 6Ditert
Butylphenol'' and we added the entry ``Chloropicrin.''

Section 172.102

We amended Sec. 172.102, Special Provisions, as follows:

The following entries are revised by adding special provision A3: UN1154 Diethylamine
UN1788 Hydrobromic acid, not more than 49% strength
UN1789 Hydrochloric acid
UN2031 Nitric acid, other than red fuming, with more than 70% nitric acid
UN2604 Boron trifluoride diethyl etherate

We are editorially revising paragraph (a)(2)(iii) by removing the examples that illustrate the optional provision to enter primary and subsidiary hazard class or division names on shipping papers for domestic shipments. In the HM215E response to appeals final rule (69 FR 34604) that was published on June 22, 2004, we reinstated the provision which was removed in a previous rulemaking (68 FR 44992). During the process of correcting a printing error in one of the examples, we determined that the regulatory text is complete and sufficient without the use of examples.

In the NPRM [69 FR 34741] we proposed to amend paragraph (a)(5)(i) to require the quantity shown on a shipping paper for an explosive article, such as Cartridges, small arms, to be the net mass of the entire article rather than the net mass of the explosive contained in the article. Commenters generally support the proposal, suggesting that it will provide for consistency across modes of transportation and for more accurate calculations. However, several of these commenters note that, for certain explosive articles that contain very small amounts of an explosive, showing the net mass of the article rather than of the explosive contained in the article could misrepresent the
transportation risk associated with the article. Two commenters state that,
[[Page 76052]]
because shippers have historically calculated the net mass based on the actual explosive material contained in the article rather than the entire article, the clarification proposed in the NPRM could cause increased confusion for shippers.

Internationally, as well, there is some concern that, at least for large explosive articles, the quantity indicated on the shipping paper should be the net mass of the explosive substances contained in the article rather than the net mass of the article itself. As suggested by some commenters to the NPRM, a number of the members of UN Transport of Dangerous Goods SubCommittee agree using the net mass of the entire article rather than the net mass of the explosive material contained in the article may not appropriately communicate the explosive hazard to emergency responders. Until this issue is resolved through a change to the UN Model Recommendations, we are, in this final rule, amending paragraph (a)(5)(i) to clarify that for explosive articles the quantity shown on a shipping paper may be expressed in terms of the net mass of the article or the net mass of the explosive substances contained in the article. It should be noted, however, that for purposes of determining the perpackage quantity limitations shown in Column 9 of the HMT, Sec. 172.101(j)(3) specifies that when articles or devices are specifically listed by name, the net quantity limitation applies to the entire article or device rather than to its hazardous components. This would include explosive articles listed by name in the HMT. For example, in the case of a listed explosive article weighing 15 kg and containing 500 grams of explosive substance, the weight shown on the shipping paper may be 500 grams or 15 kg, but the weight used for purposes of compliance with Column (9) of the HMT must be 15 kg as required by Sec. 172.101(j)(3).

Particularly for large articles, the quantity indicated on the shipping paper should be the net mass of the explosive substances contained in the article. For small explosive articles, such as Cartridges, small arms, we believe that the net mass of the article can be used to satisfy the total quantity requirement in Sec. 172.202(a)(5)(i). As a practical matter, it is easier, and in certain instances necessary, for an offeror to provide the net mass of the article and the net explosive mass. For example, as previously stated, the net mass of an article must be used to ensure compliance with the per package quantity limitations set forth in Column 9 of the Sec. 172.101 Hazardous Materials Table for transport aboard aircraft or passenger rail (see Sec. 172.101(j)(3)). However, for operational purposes, such as for stowage and segregation of large quantities of explosives or determining the quantity of explosives that can be transported on a vessel [see Sec. 176.142(b)], the net explosive mass of the explosive substances contained in articles is needed. Section 172.203

Paragraph (f) is revised by including the passenger and cargo aircraft limitation certification statement that is found in Sec. 172.204. This aligns the HMR with the ICAO TI (see 4.1.5.8.1(b) of the ICAO TI). A new paragraph (i)(3) is added to specify additional shipping paper description requirements for a hazardous material consigned under an ``n.o.s.'' entry when offered for transportation by vessel. In addition, paragraph (m)(2) is revised to specify that the phrase ``Poison Inhalation Hazard'' or ``Toxic Inhalation Hazard'' is not required to be repeated if it otherwise appears in the shipping description. Finally, in paragraph (o)(3), the reference to Sec. 173.225(c)(2) is amended to read Sec. 173.225(b)(2).

One commenter felt the requirement to add a segregation code on the shipping paper for ``n.o.s.'' entries is unnecessary and unduly burdensome. In addition, the commenter is concerned that there may not be sufficient space on the shipping paper to indicate this notation. If, however, this requirement is adopted, the commenter requested an example of the required entry on shipping papers. We disagree. We do not feel this additional requirement is unnecessary or overly burdensome. The additional shipping paper description requirements apply only to hazardous material consigned under an ``n.o.s.'' entry when offered for transportation by vessel. We believe that consignors should be familiar with the hazards and segregation risks of their shipments, specifically ``n.o.s.'' materials that are not assigned segregation groups. By indicating the need to segregate such materials on the shipping paper, the consignor increases the likelihood that appropriate stowage procedures are followed, ensuring the safety of the vessel and its cargo. We also do not agree that there is inadequate space available on shipping papers to include the segregation group. However, we do agree that an example of the required entry should be presented for clarity and uniformity. Therefore, as recommended by the commenter, we are adding the example ``IMDG Code segregation group1 Acids'' to Sec. 172.203.

Section 172.204 and Section 172.321Air Eligibility Marking

Under HM215E (68 FR 44992), the air eligibility marking was adopted into the HMR as new Sec. 172.321. Since publication of that final rule, the ICAO's Dangerous Goods Panel removed the air eligibility marking requirement from the ICAO Technical Instructions. In lieu of this marking, ICAO adopted a requirement that the shipping paper certification statement include the statement ``I declare that all of the applicable air transport requirements have been met'' when a hazardous material is offered for air transportation. Additionally, the revised section provided examples of the applicable air transport requirements that must be met. Based on this action, we revised the air eligibility marking requirement by making it optional rather than mandatory and adding the additional shipping paper certification statement for shipments going by aircraft. Therefore, we revised Sec. 172.204(c)(3) by requiring that the statement ``I declare that all of the applicable air transport requirements have been met'' be included on the shipping paper in addition to the current certification statement when a hazardous material is offered for air transportation. Additionally, the revised section provides examples of the applicable air transport requirements that must be met and various section references. In order to allow shippers to expend stocks of preprinted shipping papers containing the previous certification statement, we are providing an additional ten month transitional provision for the new certification statement. Two commenters support RSPA's decision requiring shippers to sign the certification declaring compliance with requirements for air transportation. Additionally, several commenters agree with the revision to make the air eligibility marking optional. However, some commenters suggest making the marking ``permissible'' instead of ``optional'' to avoid potential confusion. We disagree. We are removing the requirement for shippers to mark packages acceptable for air transport with the air eligibility marking. This revision does not prohibit the use of the marking.

Section 172.315

Section 172.315 is amended to ensure that packages containing limited quantities which are transported by air are marked with the proper shipping name. Although the amendment was not proposed in this rulemaking, it was previously proposed and adopted under
[[Page 76053]]
HM215E (68 FR 45000) but was omitted due to an editorial error during publication. The amendment provides harmonization with the ICAO Technical Instructions, which do not allow the UN number within a squareonpoint border as a substitute for the proper shipping name. Note that this amendment does not preclude the ID number/squareon point border from appearing on a package transported by air, it simply ensures that the proper shipping name is also required.

Section 172.317

A new Sec. 172.317 is added to require a ``KEEP AWAY FROM HEAT'' handling mark on packages containing selfreactive substances of Division 4.1 or organic peroxides of Division 5.2 when such packages are transported by air.
Part 173

Section 173.3

The NPRM proposed to revise the requirements for use of salvage drums to include packages of hazardous materials that are found not to conform with the requirements of the HMR. In addition, the NPRM proposed to clarify that salvage drums may only be used for damaged, defective, nonconforming, or leaking packages identified as such after the packages have been placed in transportation. One commenter suggests that the phrase ``after having been placed in transportation'' as used in the NPRM is confusing and requests that we clarify the phrase using the terms ``pretransportation functions'' and ``transportation functions'' as defined in a final rule published under Docket HM223 October 30, 2003 (68 FR 61905). In response to this comment, in this final rule, we modified Sec. 173.3(c) to clarify that salvage drums are to be used for damaged, defective, nonconforming, or leaking packages identified during transportation as ``transportation'' is defined in Sec. 5102(12) of Federal hazardous materials transportation lawthat is, the movement of property and loading, unloading, or storage incidental to the movement. When the HM223 final rule becomes effective, the statutory definition for ``transportation'' will be added to Sec. 171.8 of the HMR, as will definitions for ``movement,'' ``loading incidental to movement,'' ``unloading incidental to movement,'' and ``storage incidental to movement.'' Note that a package found to be leaking prior to its being placed in transportation may not be packaged in a salvage drum. Instead, it must be repackaged into an authorized packaging in accordance with applicable HMR requirements. Section 173.24

For consistency with the UN Recommendations, paragraphs (g)(4) and (g)(5) are revised to clarify the following:
(A) That IBCs (subject to the requirements in Sec. 173.24(g)) are permitted to be vented to reduce internal pressure; and
(B) That venting of IBCs is not conditional upon whether a bulk special provision is indicated for a particular hazardous material in the Sec. 172.101 hazardous materials table.

In addition, paragraph (i) is revised to clarify that other general requirements specific to air transportation apply and are found in Sec. 173.27.

Section 173.25

Paragraph (a)(2) is revised by removing the requirement to mark an overpack with the air eligibility marking. In addition, in paragraph (a)(4), we are amending the HMR to require overpacks to be marked with the word ``OVERPACK'' or, alternatively, until October 1, 2007, with a statement indicating that inside packages comply with prescribed specifications. This is in response to adoption by the United Nations of the ``OVERPACK'' marking to indicate that packages within an overpack comply with prescribed specifications when specification markings on inside packagings within the overpack are not visible. Section 173.27

Paragraph (i) is revised to indicate that the air eligibility mark has been removed. This section references a new requirement for shippers to place the following statement at the end of the certification statement when a hazardous material is authorized for air transportation: ``I declare that all applicable air transport requirements have been met.''

Section 173.28

In paragraph (c)(2), we deleted the words ``or a UN 1H1 plastic drum'' in order to harmonize the HMR with the UN Model Regulations and remove a source of confusion within the regulated community regarding the reconditioning of a nonbulk packaging.

Section 173.115

In Sec. 173.115, a new paragraph (k) is added (see discussion under Sec. 172.102, Special Provision 153). One commenter noted that the proposed new Sec. 173.115(k) would not allow aerosols to contain corrosive substances of Packing Group II. The commenter further noted that UN Special Provision 63 allows aerosols to contain corrosive substances of Packing Group II and requested we harmonize with the UN Special Provision 63 in this regard. We agree with the commenter and further note that currently, the HMR authorizes a proper shipping name of ``Aerosols, corrosive Packing Group II or III, each not exceeding 1 L capacity''. We are amending Sec. 173.115(k) accordingly to clarify that aerosols may contain corrosive substances of Packing Group II. Section 173.120 and Appendix H to Part 173

A commenter noted that under section Sec. 173.120(a)(3), the reference to Appendix H for sustained combustibility tests directs the reader to Figures 5.1 and 5.2 found in the UN Recommendations. These figures are no longer in the UN Recommendations, but, rather, are located in section 32.5.2 of the Fourth Revised Edition of the UN Manual of Tests and Criteria. We agree with the commenter. Therefore, we are amending Appendix H to Part 173 to reference the UN Manual of Tests and Criteria.

Section 173.128

In paragraph (d)(1)(i), the section reference is revised to read Sec. 173.225(c). In addition, in paragraphs (d)(1)(ii) and (d)(1)(iii), the section reference is revised to read Sec. 173.225(b). Section 173.132

In paragraph (b)(1), we revised the definition of LD\50\ for acute oral toxicity to indicate that adult albino rats may be tested without regard to gender. The current definition for LD\50\ for acute oral toxicity

FOR FURTHER INFORMATION CONTACT

Charles Betts, Office of Hazardous Materials Standards, telephone (202) 3668553, or Shane Kelley, International Standards, telephone (202) 3660656, Research and Special Programs Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 205900001.