[Federal Register: March 22, 2006 (Volume 71, Number 55)]
[Rules and Regulations]
[Page 14585-14615]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr06-22]
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Part II
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171, 172, 173, and 175
Hazardous Materials: Revision of Requirements for Carriage by Aircraft;
Final Rule
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety 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: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the requirements in the Hazardous
Materials Regulations (HMR) for the transportation of hazardous
materials by aircraft. This final rule clarifies the applicability of
part 175; clarifies the exceptions from regulation for operator
equipment and supplies, special aircraft operations, and passengers and
crewmembers; revises separation distances for the shipment of
radioactive materials by cargo aircraft; and updates the regulations to
comply with security requirements for explosive special permits. These
changes are being made to finalize outstanding petitions for
rulemaking, convert certain special permits into regulations, and
promote international harmonization, where appropriate.
DATES: The effective date of these amendments is October 1, 2006.
Voluntary compliance is authorized April 21, 2006.
FOR FURTHER INFORMATION CONTACT: Deborah Boothe, Office of Hazardous
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials
Safety 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
A. Sections 175.1 and 175.5 Purpose, Scope and Applicability
B. Section 175.3 Unacceptable Hazardous Materials Shipments
C. Section 175.10 Exceptions
D. Section 175.20 Training
E. Sections 175.25 and 175.26 Notification at Air Passenger and
Cargo Facilities of Hazardous Materials Restrictions
F. Section 175.30 Accepting and Inspecting Shipments
G. Section 175.31 Reports of Discrepancies
H. Sections 175.33 and 175.35 Shipping Papers and Notification
of Pilot-in-Command
I. Section 175.40 Keeping and Replacement of Labels
J. Sections 175.75 and 175.85 Quantity Limitations and Cargo
Location
K. Section 175.78 Stowage Compatibility of Cargo
L. Sections 175.79, 175.81, and 175.88 Inspection, Orientation
and Securing of Packages of Hazardous Materials
M. Section 175.90 Damaged Shipments
N. Section 175.305 Self-Propelled Vehicles
O. Sections 175.310 and 175.320 Transportation of Flammable
Liquid Fuel Within Alaska or Into Other Remote Locations and Cargo
Aircraft, Only Means of Transportation
P. Section 175.501 Special Requirements for Oxidizers and
Compressed Oxygen
Q. Section 175.630 Special Requirements for Division 6.1 and
Division 6.2 Material
R. Sections 175.700, 175.701, 175.702, 175.703, 175.704, 175.705
and 175.706 Transportation of Radioactive Materials Aboard Aircraft
III. Miscellaneous Proposals to the HMR
A. Quantity Limits in Column (9) of the Hazardous Materials
Table (HMT)
B. Tire Assemblies
C. Small Quantities, Limited Quantities, and Consumer
Commodities
D. Section 173.7
E. Section 173.217
F. Section 173.220
IV. Rulemaking Analysis and Notices
A. Statutory/Legal Authority for This 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. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. Regulation Identifier Number (RIN)
I. Environmental Assessment
J. Privacy Act
I. Background
The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180)
govern the transportation of hazardous materials in commerce by all
modes of transportation, including aircraft. 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
requirements applicable to all aircraft operators transporting
hazardous materials by air, and outlines exceptions allowing passengers
and crew members to carry hazardous materials aboard aircraft under
certain conditions. In addition, aircraft operators must comply with
the FAA hazardous materials training requirements in 14 CFR parts 121
or 135, as appropriate.
In this final rule, the Pipeline and Hazardous Materials Safety
Administration (PHMSA), with the concurrence of the Federal Aviation
Administration (FAA), is adopting amendments to part 175 and other
sections of the HMR applicable to the transportation of hazardous
materials by aircraft. These amendments will:
(1) Modify or clarify requirements to promote compliance and
enforcement;
(2) Enhance the security of transportation of explosives by
aircraft; and
(3) Facilitate international commerce.
On February 26, 2002, the Research and Special Programs
Administration (RSPA)--the predecessor agency to PHMSA--published an
advance notice of proposed rulemaking (ANPRM; 67 FR 8769) inviting
public comments on how to improve the clarity of the HMR requirements
for transporting hazardous materials by aircraft. We received 26
comments in response to the ANPRM. On November 10, 2004, RSPA published
a notice of proposed rulemaking (NPRM; 69 FR 76044) proposing specific
changes to the HMR sections applicable to the transportation of
hazardous materials by aircraft. On January 21, 2005, (70 FR 3179) in
response to requests from interested parties, we extended the comment
period on the NPRM until March 18, 2005.
We received 24 comments addressing issues raised by the NPRM from
the following: Air Line Pilots Association, International (ALPA);
United Parcel Service, Inc. (UPS); Air Transport Association (ATA);
FedEx Express; trade associations such as the International Association
of Airport Duty Free Stores; individual air carriers; and others
involved in the transportation of hazardous materials by aircraft. Most
commenters were supportive of PHMSA(s efforts to revise part 175 in
order to clarify certain requirements and make the part more user-
friendly.
In this final rule, we are adopting most changes proposed in the
NPRM. Relevant portions of the comments are discussed in the following
sections of the preamble.
II. Section-by-Section Review
A. Sections 175.1 and 175.5 Purpose, Scope and Applicability
Part 175 of the HMR prescribes requirements for all aircraft
operators transporting hazardous materials in commerce in the United
States. The requirements in part 175 are in addition to requirements
contained in parts 171, 172, and 173 (see Sec. 175.1). Part 175
applies to the acceptance for
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transportation, loading, and transportation of hazardous materials in
any aircraft within the United States and aircraft of United States
registry anywhere in air commerce (see 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 (see Sec. 175.5).
In this final rule, we are modifying Sec. 175.1 to indicate part
175 applies to any person who performs, attempts to perform, or is
required to perform a function subject to the HMR, including:
(1) Air carriers, indirect air carriers, and freight forwarders and
their flight and non-flight 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.
In its comments, the Council on Radionuclides and
Radiopharmaceuticals, Inc. (CORAR) requests clarification of the
applicability of part 175 to multi-modal ground carriers and their
shippers who offer or transport packages by ground before or after
transport by air. If part 175 applies to these entities, CORAR suggests
this will subject a significant number of persons within the network of
distribution of radiopharmaceuticals to these regulations (e.g.
reporting deficiencies and training). CORAR also suggests PHMSA should
provide additional time before the effective date of the final rule for
the total impact to be assessed and for necessary actions such as
training or implementation.
Part 175 currently applies to all persons who accept and prepare
shipments for air transportation, including persons who accept packages
for air transportation. Ground handling crews, contracted employees,
and air freight forwarders that accept packages for air transportation
are subject to part 175. As are subsidiary companies formed by aircraft
operators to build pallets and handle, load, and unload hazardous
materials in air transportation. In this final rule, we are clarifying
the applicability of the HMR to air shipments. All functions performed
to prepare hazardous materials shipments for air transportation must be
performed by a hazmat employee trained in accordance with the HMR, just
as was required prior to this rulemaking. We do not feel more time is
necessary to allow training to be conducted for hazmat employees
currently covered under part 175.
ATA indicates that the proposed applicability statement in Sec.
175.1 is too broad and should be further defined to clarify its non-
applicability to employees whose functions are unconnected to air
commerce, such as ground delivery personnel of a cargo air carrier who
are subject to part 177. ATA suggests adding ``who are engaged in air
operations'' to Sec. 175.1(b)(1) to clarify its applicability.
We disagree. In a final rule published on July 28, 2005 (HM-223A
(70 FR 43638)), we defined a ``person who offers or offeror'' to mean
any person who performs or is responsible for performing any pre-
transportation function required by the HMR or who tenders or makes the
hazardous material available to a carrier for transportation in
commerce. As we said in HM-223A, a carrier is not an offeror when it
performs a function as a condition of accepting a hazardous material
for transportation in commerce or when it transfers a hazardous
material to another carrier for continued transportation without
performing a pre-transportation function. We also clarified there may
be more than one offeror of a hazardous material or more than one party
regulated by the HMR concerning a shipment and each offeror or such
party is responsible only for the specific pre-transportation function
it performs or is required to perform. In addition, we clarified each
offeror or carrier may rely on information provided by a previous
offeror or carrier unless the offeror or carrier knows or a responsible
person acting in the circumstances and exercising responsible care,
would have knowledge indicating the information provided is incorrect.
Currently, some packaging, shipping, and freight forwarding
facilities accepting hazardous materials for air transportation appear
to believe they are not subject to the requirements in part 175 because
they are not air carriers. However, the HMR require each person who
offers, accepts, or transports packages by air to comply with all
applicable regulatory requirements. Though an air carrier is
responsible for compliance with the applicable requirements in part
175, packaging, shipping, and freight forwarding facilities are also
subject to the requirements in part 175 when accepting hazardous
materials for air transportation.
Therefore, in this final rule we are adopting the proposed
provisions to clarify the requirements of the HMR applicable to the
transportation of hazardous materials aboard aircraft apply to those
persons who offer, accept, or transport hazardous materials in commerce
by aircraft to, from, or within the United States. We are relocating
Sec. 175.5(a)(1) to Sec. 175.1(b), relocating Sec. 175.5(a)(2) to
Sec. 173.7(f), and eliminating Sec. 175.5(a)(3). In addition, we are
modifying Sec. 175.1 to clarify 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 are not exempted from
the HMR in accordance with Sec. 175.10(a). On February 28, 2003 RSPA
clarified the applicability of the HMR to airline passengers (see
Notice No. 03-2; 68 FR 9735).
B. Section 175.3 Unacceptable Hazardous Materials Shipments
No amendments were proposed or adopted for this section and no
comments were received.
C. Section 175.10 Exceptions
Section 175.10(a)(2) excepts certain hazardous materials required
to be aboard an aircraft in accordance with applicable airworthiness
requirements and operating instructions from the HMR. 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).
In Sec. 175.10(a)(2) the HMR provide the following limited exceptions
for COMAT:
(1) Items of replacement for installed equipment containing
hazardous materials are subject to all relevant provisions of the HMR
and are only 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
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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 identifies other hazardous materials which are
excepted from the HMR. The materials include: (1) certain personal
items of passengers or crew members, 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. We are reorganizing current
exceptions in Sec. 175.10 into three different sections:
(1) Sec. 175.8 covering operator equipment and items of
replacement (including COMAT);
(2) Sec. 175.9 covering special aircraft operations (crop-dusting,
parachuting, etc.); and
(3) Sec. 175.10 covering exceptions for passengers, crewmembers,
and air operators.
In addition, Sec. 175.8 clarifies the exceptions for aircraft
spares (COMAT) is applicable only to an operator transporting its own
equipment.
Most commenters agree with the proposal to reorganize this section
into three separate sections focused on COMAT, emergency response, and
passenger related areas, respectively. Some commenters express concern
to the exceptions for quantity limits on small arms ammunition, COMAT,
batteries in wheelchairs, self-heating hair curlers, and self-defense
spray. In addition, commenters requested clarification of the
difference between carry-on vs. checked baggage. The comments submitted
on those issues and our responses are discussed below.
1. Quantity Limits on Small Arms Ammunition
The NPRM proposed to limit the amount of small arms ammunition
allowed in checked baggage to 5 kg per person. Alaska Airlines, Alaska
Air Carriers Association (AACA), and Customs and Border Protection,
Port of Portland express concern regarding the quantity limits and
clarification on ``other packagings'' authorized to carry small arms
ammunition. Alaska Airlines and AACA state limiting the amount of small
arms ammunition would result in serious economic harm to the tourist
industry or hunters who travel to remote areas of the Alaska wilderness
to hunt and fish, as well as those persons who live in remote areas who
need small arms ammunition for their personal use. They do not support
the proposed quantity limits on small arms ammunition. AACA suggests
limiting it to 30 kg, a limit consistent with ORM-D packaging. AACA
states, ``Many rural Alaskan residents rely on subsistence hunting as
part of their lifestyle and to support their diet. They are regular
consumers of small arms ammunition but Alaskan villages may typically
have only one or two small retail stores with limited amounts of
ammunition, and some villages do not have any regular options for
purchase of small arms ammunition.'' AACA further states, ``Alaska's
tourism industry also relies on air transportation of hunters to remote
wilderness areas where there are no options for re-supply of
ammunition. Recreational hunters often travel to remote locations for
extended trips lasting from 7 to 21 days or more. Such hunters
typically carry more than one kind of weapon and their combined
ammunition for all weapon types can easily exceed the 5 kg limit.''
Alaska Airlines requests a blanket exemption for carrying these
products and states, ``For Alaska to support the proposed rule as
written, we must know we will be able to get a blanket exemption
permitting our passengers at any of our United States locations to
check in baggage the 50 pounds per person they have been doing safely
for years (still employing the proven packaging requirements).'' ATA
supports the 5 kg (11 pound) limit as proposed for small arms
ammunition carried in checked baggage. ATA states ``this limit aligns
the HMR with [the International Civil Aviation Organization Technical
Instructions (TIs)] and places bounds on the previous ``personal use''
exception. Some carriers that serve hunting destinations may
individually wish to seek higher limits through exemptions.''
Though we agree with ATA international harmonization is beneficial,
we are compelled to account for the concerns raised by Alaska Airlines
and AACA. Therefore, after reevaluating our proposal to limit small
arms ammunition to 5 kg (11 pounds), we have decided not to adopt the
proposed small arms ammunition limit. In addition, we would like to
note that even though we are not adopting this provision, Sec. 171.11
provides air carriers with the option of following the ICAO Technical
Instructions which limits the amount of small arms ammunition to 5 kg
per passenger.
Customs and Border Protection (CBP) suggests the proposed changes
need further clarification as to what constitutes ``other packagings
specifically designed to carry small amounts of ammunition.'' According
to CBP, many Federal law enforcement officers are experiencing
difficulties with inconsistent enforcement of these requirements.
According to CBP:
In the recent past TSA and airline policies on the transport of
``duty'' ammunition by these officers have been inconsistent and
non-uniform. TSA Screeners and airlines at one airport would allow
an officer to transport his duty ammunition in the firearms magazine
or clip (removed from the weapon). Upon the officers return trip
from a different airport the local policy would require the
ammunition to be transported in the original ``off the shelf''
styrofoam and cardboard box. This causes problems when an officer is
suddenly advised he can not fly unless he has original type
packaging material. The proposed changes to new Sec. 175.10(a)(8)
do not clearly address this situation.
In addition, CBP suggests magazines and clips are designed to
safely transport ammunition and to protect the primer end of the round
from impacts may result in accidental discharge; according to CBP,
store packaging of ammunition in thin cardboard boxes with a styrofoam
insert provides no such protection of the primers. CBP states, ``If a
magazine or clip is not deemed suitable for transport then specifics on
packaging for small amounts of ammunition must be clearly outlined to
facilitate a uniform national interpretation of the standards.''
The current requirement to securely package small arms ammunition
for personal use in boxes or other packages specifically designed to
carry ammunition provides a flexible packaging standard may be met
using a variety of different packaging configurations. Similarly, the
requirement for clips and magazines to be securely boxed is
sufficiently descriptive to provide a variety of safe shipping options
for shippers and carriers. Section 173.63 provides similar requirements
for ``Cartridges, small arms'' and ``Cartridges, power devices''
shipped as ORM-D materials. Those provisions have an established
history of safety and we are confident the adoption of proposed
revisions to this paragraph will have similar results. In addition, we
recognize the vast majority of persons transporting ammunition aboard
an aircraft (i.e., sportsmen, law enforcement officers, military
personnel, and competitive shooters) are knowledgeable about ammunition
safety. Many will choose to transport and store their ammunition in
hardened plastic cases intended to provide protection. Others will
choose to transport their ammunition in the manufacture's original
packaging, clips, or magazines--all of which can be safely
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transported provided they completely and securely enclosure the
ammunition (see letter of interpretation dated April 12, 2005 from Mr.
John Gale to Mr. Marc Joyeuse). The intention of this change is not to
develop a new packaging for ammunition; it is to ensure a limited
amount is transported safely, in secure packages that provide adequate
protection from the conditions normally incident to transportation
aboard an aircraft.
2. COMAT
The NPRM clarified exceptions applicable to COMAT shipments apply
only to an airline transporting ``its own'' replacement items. ATA asks
PHMSA to delete the proposed change in new Sec. 175.8(b). ATA notes
carriers have had reciprocal arrangements where they obtain replacement
items from each others' inventories in order to expedite movement of
the item to the location where it is needed. ATA states ``it is
irrelevant for safety purposes whether ownership of the replacement
item has actually passed to the carrier that transports it for use as a
replacement.''
We do not agree the exception for COMAT materials should be
expanded to include the transportation of replacement parts by one
airline for another airline. COMAT consists of spares and supplies
intended for the repair or replacement of parts by the air carrier on
which it is transported. Parts and supplies transported for other
airlines must be transported in accordance with the HMR. To clarify the
COMAT exception and the exception for installed equipment, in this
final rule, we moved the exception from paragraph (b) of Sec. 175.8 to
paragraph (a) and have replaced the proposed text of paragraph (a) with
the text currently in Sec. 175.10(a)(1) and (a)(2).
ATA also asks PHMSA to adopt a similar special provision to the
proposed Special Provision A59 on tire assemblies for aircraft
batteries. ATA suggests this will further align the HMR with ICAO
Special Provision A51 for batteries, just as the proposed Special
Provision A59 for tire assemblies aligns with ICAO Special Provision
A59 for tire assemblies. ATA states ``this change will make it clear
that carriers may continue their current practices regarding COMAT
shipment of aircraft batteries.'' ATA's comment is beyond the scope of
this rulemaking. We will consider the addition of a special provision
in a future rulemaking as suggested by ATA.
Regional Airline Association (RAA) requests clarification as to
which exceptions apply to ``will not carry'' operators. For example,
RAA suggests ``will not carry'' operators should be permitted to carry
limited hazardous material COMAT if packaged in a manner acceptable to
FAA and provided the operator's training and procedures are acceptable
to FAA. RAA suggests air carriers incur a significant cost due to the
current hazmat rules for ``will not carry'' operations. RAA also
requests clarification of exceptions for passengers and crewmembers on
``will not carry'' airlines.
A ``will not carry'' operator is one who makes a business decision
not to carry hazardous materials and indicates this decision in item 23
of its operations manual, in accordance with 14 CFR Subpart G--Manual
Requirements (Sec. 121.135). The FAA does not prohibit ``will not
carry operators'' from transporting those materials excepted in Sec.
175.10(a). The HMR does not apply to those materials transported in
accordance with Sec. 175.10.
3. Batteries in Wheelchairs
ATA requests revisions to certain aspects of the provisions in part
175 applicable to non-spillable batteries. According to ATA, ``Most
wheelchairs that carriers check as baggage or examine in recent years
have non-spillable batteries; spillable batteries have become
relatively rare. Wheelchair design has changed in ways that make it
very difficult for carriers to comply with the existing visual
inspection and battery disconnection requirements, which PHMSA proposes
to carry over to the new section Sec. 175.10(a)(15).'' Therefore, ATA
requested PHMSA modify the proposed Sec. 175.10(a)(15)(ii) and (iii)
to recognize the current state of wheelchair technology.
ATA further states:
Visual inspection and disconnection of a non-spillable battery
should not be required if both of the following are satisfied: (1)
the wheelchair has a disconnect mechanism, and carrier personnel use
that mechanism to disconnect the power source, and (2) carrier
personnel are able to verify, without disassembling the chair to
view the battery itself, that the battery is non-spillable. If a
carrier cannot satisfy either of these requirements, it is
appropriate to require visual inspection to determine whether the
battery is non-spillable. If the carrier performs a visual
inspection and verifies that the battery is non-spillable, the
carrier should be permitted to use a disconnect mechanism if the
chair has one, or to disconnect the battery if the chair does not
have a disconnect mechanism. ATA agrees that spillable batteries
pose both an electrical and chemical safety risk, and the current
visual inspection and disconnection requirements for them should be
maintained.
ATA suggests these modifications will increase convenience for
traveling disabled passengers by decreasing the time for carriers to
return checked chairs to passengers. In addition, ATA suggests these
modifications would decrease the damage to wheelchairs.
ATA's comments are beyond the scope of this rulemaking. However, we
will consider the revisions suggested in a future rulemaking.
4. Carry-On vs. Checked Baggage
RAA requests further clarification of the terms ``carry-on
baggage'' and ``checked baggage.'' According to RAA, ``there seems to
be the implication that carry-on baggage is stowed in the passenger
cabin and accessible to persons during flight and that checked baggage
is stowed within a cargo hold; that is not the case for regional
airplane operations.'' RAA asks PHMSA to clearly define these terms. As
RAA states:
Most ``carry-on'' bags on regional airplanes are stowed in the
cargo hold; they are thoroughly checked by TSA as carry-on bags but
are brought to the gate by the passengers and then loaded planeside
into the cargo holds since there is no room for them in the
passenger compartment. Placement of many carry-on bags that are
taken to the gate for flights on very large airplanes (e.g. Boeing
and Airbus) are also loaded planeside in the airplane's bulk cargo
hold because they may not fit in an overhead compartment or there
simply isn't enough room in the passenger compartment. We therefore
see no distinction then between the two types of bags once they are
placed onboard the airplane.
The HMR do not include definitions for ``checked'' or ``carry-on''
baggage. In the absence of a definition in the HMR, a term has the same
meaning as in a dictionary or other source. Thus, when the HMR refer to
``checked baggage,'' the term means items of baggage offered to an
airline for transportation in the hold of an aircraft inaccessible to
the passenger during the flight for which the airline issues a claim
check. When the HMR refer to ``carry-on baggage,'' the term means
baggage for which no claim check is issued and can be carried into the
passenger cabin of an airplane by a passenger or crewmember. These
issues have not been addressed by this rulemaking; therefore, they are
beyond its scope.
5. Self-heating Hair Curlers
The HMR include an exception for hair curlers containing
hydrocarbon gas allowing no more than one hair curler per passenger or
crew member, provided the safety cover is securely fitted over the
heating element. This section is clarified by including the North
American term ``curling iron'' to describe hair curlers and by citing
``butane'' as an example of a
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hydrocarbon gas. ATA suggests the self-heating hair curlers referred to
in Sec. 175.10(a)(6) should include devices using liquid fuel as well
as hydrocarbon gas fuel. We disagree. The current exception permits
self-heating hair curlers to be transported in carry-on or checked
baggage and includes curling irons using a hydrocarbon gas rather than
electricity for power. This exception provides travelers with an option
when the use of curlers heated by electricity is not an option.
Allowing a flammable liquid burning heating source to be transported in
carry-on or checked baggage poses an unnecessary flight safety risk.
6. Self-defense Spray
ATA asks PHMSA to delete the proposed Sec. 175.10(a)(9) allowing
the carriage of a self-defense spray in checked bags. According to ATA,
this would harmonize the HMR with ICAO and IATA, which provide no
exception for self-defense sprays in checked bags.
We recognize the current HMR exception for self-defense spray is
not consistent with ICAO and IATA. However, harmonization is not always
appropriate. The exception is used frequently by passengers and
crewmembers to ensure their safety at destination. We do not agree
permitting one container of self-defense spray in checked baggage poses
a flight safety risk. Passengers traveling internationally should note
that many foreign countries do not allow self-defense spray to be
transported in checked or carry-on luggage.
7. Reformatting of Exceptions in Sec. 175.10
Based on the comments received, we are adopting the amendments to
divide the current exceptions in Sec. 175.10 into three different
sections: Sec. Sec. 175.8, 175.9, and 175.10. Each section will cover
a category of exceptions. Section 175.8 will cover operator equipment
and items of replacement (including COMAT); Sec. 175.9 will cover
special aircraft operations (crop-dusting, parachuting, etc.); and
Sec. 175.10 will cover exceptions for passengers, crewmembers, and air
operators. Separating and categorizing these exceptions will make the
regulations easier to use and minimize confusion concerning the
applicability of certain paragraphs.
New Sec. 175.8 incorporates the exceptions for operators covering:
--Aviation fuel and oil
--Hazardous materials required for airworthiness
--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
--Spares (COMAT) for installed equipment
--Tire assemblies.
New Sec. 175.8 also clarifies the exceptions for aircraft spares
(COMAT) are applicable only to an operator transporting its own
equipment. The paragraph on COMAT deletes the references to tires as
this exception already exists in Sec. 173.307(a)(2). Also, current
Sec. 175.10(a)(7) dealing with the stowage of oxygen cylinders is
moved to the new Sec. 175.501 (See Sec. 175.8(b)(1)).
We are revising Sec. 173.307(a)(2) to reference Sec. 175.8(b)(4)
for tires transported by aircraft. Section 175.8(b)(4) 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.
New Sec. 175.9 incorporates exceptions for the following special
aircraft operations:
--Aerial seeding, crop dusting, spraying, etc.
--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, and
avalanche control.
Also added to this new section are exceptions for operations
dedicated to firefighting and prevention, air ambulances, and search
and rescue operations. We have edited references to FAA approvals
throughout this section to reflect either the FAA Flight Standards
District Office or the FAA Principal Operations Inspector, whichever is
more appropriate. Emergency services not performed under dedicated
operations must comply with the HMR. The exceptions in Sec. 175.9 are
not for general transportation. In addition, applicable FAA operating
specifications and Federal Aviation Requirements apply.
New Sec. 175.10 contains exceptions for hazardous materials
carried by passengers and crewmembers. These provisions have been
edited for clarification. The most common edit was to put the name of
the excepted article at the beginning of the sentence so it is easy to
find.
The following table lists the provisions in the current Sec.
175.10(a) and indicates the new location of the provision as adopted in
this final rule.
----------------------------------------------------------------------------------------------------------------
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) and (b), 173.307(a)(2).
(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(b).
(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(b).
(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).
[[Page 14591]]
(a)(25) lifejacket with gas cartridges...... 175.10(a)(11).
(a)(26) small mercury thermometer........... 175.10(a)(7).
(a)(27) lithium batteries and cells......... 175.10(a)(17).
----------------------------------------------------------------------------------------------------------------
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) has been revised to clarify that safety
matches and lighters may be carried on one's person or in carry-on
baggage. This change stems from a February 13, 2003 memorandum from Mr.
Edward Mazzullo to Mr. William Wilkening addressing the current
allowance for safety matches or a lighter to be carried on one's
person. The memo clarifies the phrase ``one's person'' to include the
passenger and his carry-on baggage.
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 the new location for the small arms
ammunition exception. This sub-paragraph is clarified to indicate
ammunition clips and magazines must be securely boxed.
Section 175.10(a)(9) is the new location for the self-defense spray
exception. It had previously been included in the quantity limits for
medicinal and toilet articles. In its previous location the exception
was difficult to locate; the move to this subparagraph makes it more
visible.
Section 175.10(a)(10) is the new location for the dry ice
exception. The exception, currently located in Sec. 175.10(a)(13),
includes two different net quantities allowed for dry ice--2 kg (4.4
pounds) and 2.3 kg (5 pounds)--depending on how it is carried. In
addition, it is unclear whether the marking requirements are to be
applied only to checked baggage or if they must be applied to both dry
ice in cargo and checked baggage. The new subparagraph maintains the
current quantities by allowing 2.3 kg (5 pounds) to be carried in
checked baggage and 2 kg (4.4 pounds) to be carried in carry-on
baggage. In addition, the new subparagraph clarifies the marking
requirements are for checked baggage only. We had proposed to limit the
amount of dry ice in checked and carry-on baggage to 2.0 kg (4.4
pounds); however, due to international changes we decided to maintain
the current allowance. The exception for dry ice used in food service
by the operator is moved to Sec. 175.8(b)(2). The 2.3 kg (5 pounds)
exception for dry ice transported as cargo is now incorporated in Sec.
173.217. However, the maximum amount of dry ice allowed on board a
flight is established by airworthiness requirements and operating
specifications. FAA's Advisory Circular 91-76 dated September 30, 2004
outlines currently authorized limits.
Section 175.10(a)(11) is modified. Self-inflating life jackets may
be carried with two cartridges of CO2 (or other suitable
Division 2.2 gas), as adopted in a final rule issued under docket HM-
215E (68 FR 44991; July 31, 2003).
Section 175.10(a)(15) is clarified by replacing the term
``underwater torch'' with the North American term ``diving lamp''.
Section 175.10(a)(17) is replaced. Old Sec. 175.10(a)(27) was
adopted in an interim final rule published under Docket HM-224E (69 FR
75207; December 15, 2004). The new section provides an exception for
lithium batteries in consumer electronic and medical devices (watches,
calculators, cameras, cellular phones, lap-top computers, camcorders,
and hearing aids, etc.) containing lithium cells or batteries, and
spare lithium batteries and cells for these devices, when carried by
passengers or crew members in carry-on or checked baggage for personal
use. In addition, each installed or spare battery must conform to the
following:
(1) The lithium content of the anode of each cell, when fully
charged, is not more than 5 g; and
(2) The aggregate lithium content of the anodes of each battery,
when fully charged, is not more than 25 g.
New Sec. 175.10(b) includes the provisions adopted in HM-215E
authorizing carriage of these excepted hazardous materials in passenger
baggage unintentionally separated from the flight carrying the
passenger (misrouted).
D. 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 FAA's hazardous
materials training requirements in 14 CFR 121.401, Part 121 Subpart Z,
135.323, and Part 135 Subpart K (as amended in FR Vol. 70, No. 194;
published October 7, 2005). The FAA requirements prescribe additional
training for air carriers. Aircraft operators may substitute training
provided in accordance with 14 CFR for training required by Part 172 to
the extent that the training provided under 14 CFR satisfies
requirements in Part 172.
A ``hazmat employee'' is defined in Sec. 171.8 to mean a person
``who in the course of employment performs 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.''
We received no comments regarding the proposed revision to this
section; therefore, it is adopted as proposed in the NPRM. This final
rule thus clarifies the HMR (including training) apply to any person
who performs, attempts to perform, or is required to perform any
function subject to this subchapter, including air carriers, indirect
air carriers and freight forwarders and their flight and non-flight
employees, agents, subsidiary and contract personnel that accept
hazardous materials for air transportation.
E. Sections 175.25 and 175.26 Notification at Air Passenger and Cargo
Facilities of Hazardous Materials Restrictions
The HMR currently require notices to be posted at air passenger
facilities and cargo facilities. The notices contain specific language
warning offerors of cargo and passengers of the requirements applicable
to offering or carrying hazardous materials and the penalties for
failure to comply with
[[Page 14592]]
those requirements. Section 175.25 requires aircraft operators to
display notices warning passengers against carrying hazardous materials
aboard aircraft in their checked or carry-on luggage and on their
persons, and prescribes the information to be contained in each notice.
Section 175.26 requires each person who engages in the acceptance of,
or the transportation of, cargo by aircraft, to display notices in
prominent locations at each facility where cargo is accepted. Display
of notices are not required at unattended locations if there is a
general notice prominently displayed advising customers shipments of
hazardous materials at the location are prohibited. In addition,
notices are not required to be displayed at a shipper's facility where
packages of hazardous materials are accepted.
In a final rule published July 10, 1998 (63 FR 37454), we revised
Sec. Sec. 175.25 and 175.26 to reflect changes in the statutory
citations and penalties, and to provide carriers greater flexibility.
These notices are intended to inform customers of hazardous material
identification procedures, the requirement to comply with the HMR, and
the penalties for failure to comply with the HMR. Therefore, signs must
be in prominent view of passengers and persons who accept or offer
cargo. Sections 175.25 and 175.26 also list the minimum information
required to be contained on the notice.
In some cases, cargo terminals are co-located with passenger
terminals. To make it easier for the industry to comply with signage
requirements, FAA and RSPA stated in a final rule published September
27, 1993 (58 FR 50496) display of separate passenger and cargo notices
is not required at these passenger terminals.
We did not propose any amendments to the signage requirements in
Sec. Sec. 175.25 and 175.26. However, in an effort to further clarify
these requirements and provide consistency with Sec. 175.26, we did
propose to revise the terminology in Sec. 175.25 by changing ``each
aircraft operator'' to ``each person.''
ATA supports PHMSA's efforts to educate shippers and the public
about hazardous materials restrictions. For clarity, ATA suggests
revising the opening sentence of Sec. 175.25 to add the word ``air,''
as follows: ``Each person who engages in for-hire air transportation of
passengers * * *'' We agree the suggested change provides further
clarity and are adopting it in this final rule. We will also continue
to work with the airlines and the airports to ensure the passengers and
shippers of cargo aboard aircraft are aware of the dangers and the
regulations for shipping hazardous materials.
F. Section 175.30 Accepting and Inspecting Shipments
Section 175.30 prohibits any person from carrying a hazardous
material aboard an aircraft unless the package is inspected by the
aircraft operator to ensure the integrity of the package has not been
compromised. In response to a request from an airline to clarify its
hazardous material acceptance responsibility, we issued a formal
interpretation on the acceptance of hazardous materials on June 4, 1998
(63 FR 30411). We stated a carrier's acceptance and transportation of
hazardous materials can involve several different situations. For
example, a shipment may be ``declared'' by the shipper to contain
hazardous materials by shipping documentation, marking, labeling, or
other means. In such cases, the shipment must comply with all
applicable HMR requirements, including the use of an authorized
packaging. Conversely, an ``undeclared'' or ``hidden'' shipment is a
shipment of hazardous materials not declared, intentionally or
unintentionally, by the offeror to contain hazardous materials, and
there is no attempt to comply with the HMR.
The responsibility to reject any shipment of hazardous materials
not fully in full compliance with the HMR stems from the authority in
49 U.S.C. 5123 to assess a civil penalty against any person who
``knowingly violates'' any requirement in the HMR. Section 5123(a)
provides a person ``acts knowingly'' when: (A) the person has actual
knowledge of the facts giving rise to the violation; or (B) a
reasonable person acting in the circumstances and exercising reasonable
care would have that knowledge. A carrier knowingly violates the HMR
when the carrier accepts or transports a hazardous material with actual
or constructive knowledge that a package contains a hazardous material
not properly packaged, marked, labeled, or described on a shipping
paper as required by the HMR. To ignore readily apparent facts
indicating either: (1) A shipment declared to contain a hazardous
material is not properly packaged, marked, labeled, placarded, or
described on a shipping paper; or (2) a shipment actually contains a
hazardous material governed by the HMR despite the fact it may not be
properly marked, labeled, placarded, or described on a shipping paper
as containing a hazardous material, would not represent reasonable
care.
Section 175.30(d) excepts materials classed as ORM-D from the
inspection requirements. In the NPRM, we proposed to remove this
exception. Materials reclassed as ORM-D should be subject to the
inspection requirements of Sec. 175.30(b) and (c) to ensure all
packages containing hazardous materials are in proper condition for
transportation aboard aircraft.
ATA; UPS; Association of Hazmat Shippers (AHS); and FedEx Express
ask PHMSA to leave the exception provided in Sec. 175.30(d) for
consumer commodities and not remove it as proposed. ATA states removing
the exception would result in inconsistency with the ICAO acceptance
procedures in part 7;1.1.1(b) for similar shipments under Packing
Instruction 910. ATA suggests PHMSA provided no safety justification
for removing the exception, noting the break down and rebuilding a unit
load device (ULD) containing ORM-D materials provides more opportunity
to damage those packages. In addition, ATA suggests removal of the
exception could lead to international consistency and competitive
issues where foreign operators will offer their customers expedited
processing while U.S. carriers will have to spend more time processing
their packages individually. UPS and AHS also comment there is no
incident history to justify removal of the exception and the increased
handling could lead to greater costs for U.S. operators and increased
damages during handling.
We disagree with the commenters and are adopting the proposal to
remove the exception in Sec. 175.30(d) for materials classed as ORM-D.
Today's transportation environment also warrants inspection of
materials reclassed as ORM-D to ensure the safety and security of the
hazardous material shipment. Inspection is one of the only means
available to ensure packages containing hazardous materials are in
proper condition for transportation aboard aircraft. In addition, the
change is consistent with international regulations. International
regulations do not provide an ORM-D hazard class; therefore,
international transportation of ORM-D materials is not permissible.
ATA, UPS, AHS, FedEx Express, and Express.net Airlines, LLC
request, for international consistency, PHMSA remove the proposed
requirement for an operator to inspect overpacks to determine ``that a
statement indicating the inside packages comply with the prescribed
specifications appears on the outside of the overpack when
specification packagings are
[[Page 14593]]
prescribed.'' ATA commented under HM-215G, final rule, ICAO Technical
Instructions no longer require such a statement on overpacks. ICAO
Technical Instructions require overpacks be marked ``Overpack.'' The
commenter stated the proposed inspection requirement under this rule
would only create confusion in international shipments.
We agree, the text should be revised to be consistent with the
final rule adopted under docket HM-215G (69 FR 76044; December 20,
2004). Therefore, the proposed text is altered to require the operator
to ensure the word ``OVERPACK'' appears on the outside of the overpack
when specification packages are required. Note, however, the use of a
statement indicating the inside packages comply with prescribed
specifications is also authorized until October 1, 2007.
Express.net Airlines requests a revision to Sec. 175.30(e)(1)(iii)
to explain whether the ``one package'' limitation refers to a one cargo
aircraft only package contained with other shipments acceptable on
passenger aircraft, or the ``one package'' refers to the limitation
only one package (total) may be overpacked.
We believe proposed Sec. 175.30(e)(1)(iii) clearly indicates the
operator is excepted from taking steps to establish an overpack does
not contain a package bearing the ``CARGO AIRCRAFT ONLY'' label if the
overpack contains a single package. The exception refers to a package,
not a single package labeled with the ``CARGO AIRCRAFT ONLY'' label.
Therefore, we are not altering the proposed language.
G. Section 175.31 Reports of Discrepancies
Section 175.31 requires a person who discovers a discrepancy after
acceptance of a package of hazardous materials (as defined by Sec.
175.31(b)) to notify the nearest FAA Civil Aviation Security Field
Office (CASFO) by telephone ``as soon as practicable,'' and provide
certain information. This requirement permits early investigation and
intervention to determine the cause for failure to either properly
declare or prepare a hazardous materials shipment. A May 27, 1980,
final rule under Docket HM-168 (45 FR 35329), adopted requirements in
49 CFR 175.31 for reporting discrepancies. In the preamble to the final
rule, we stated:
A shipment containing a hazardous material must be offered to
the carrier in accordance with the regulations. An offering occurs
when (1) the package is presented, (2) the shipping paper is
presented, (3) the certification is executed, and (4) the transfer
of the package and shipping paper is completed with no further
exchange (written or verbal) between the shipper and aircraft
operator, as usually evidenced by the departure of the shipper. At
this point, it is clear the operator has accepted the shipment and
the shipper has removed himself from a final opportunity to take
corrective action that would preclude a violation of the HMR
relative to transportation of hazardous materials aboard aircraft *
* * the requirement which has been adopted [in this final rule]
limits required reporting to shipment discrepancies which are
discovered [subsequent to] acceptance of the shipment for
transportation and limits `reportable' discrepancies to those
discrepancies which are not detectable as a result of proper
examination by a person accepting shipment under the acceptance
criteria of Sec. 175.30. This notification requirement will
facilitate the timely investigation by FAA personnel of shipment
discrepancies involving situations where inside containers do not
meet prescribed packaging or quantity limitation requirements and
where packages or baggage are found to contain hazardous materials
after having been offered and accepted as other than hazardous
materials.
We proposed the addition of Sec. 175.31(a)(6) to require the
address of the shipper or person responsible for the discrepancy, if
known, to be reported by the air carrier. Currently, Sec. 175.31(b)(2)
requires air operators to notify FAA, in part, when baggage subsequent
to its offering and acceptance is found to contain undeclared hazardous
materials. When security screeners suspect checked baggage may contain
an unauthorized hazardous material, they bring the item to the
attention of the air carrier so the air carrier can make a
determination if the item is authorized to be in the baggage. If the
air carrier determines the item constitutes a discrepancy, it must
notify the FAA.
In comments to the NPRM, ALPA expresses its disappointment with no
amnesty program being proposed despite broad support for such a
program. ALPA states if an amnesty program is considered in the future
it should apply to carriers when they discover an undeclared hazardous
material and not to shippers. ALPA stated, ``There is a clear
difference in culpability between a carrier that fails to discover an
undeclared shipment during or after acceptance and the entity that
prepares and offers that shipment.''
Though we did not propose an amnesty program under this rulemaking,
as the primary agency delegated by the Secretary of Transportation to
inspect and enforce the HMR in the air mode the FAA issued Advisory
Circular 121-37, VOLUNTARY DISCLOSURE REPORTING PROGRAM--HAZARDOUS
MATERIALS, on January 31, 2006. Holders of certificates under 14 CFR
parts 119 and 125 and foreign air carriers issued operations
specifications under 14 CFR part 129 who accept hazardous material for
transport by air may voluntarily disclose to the FAA violations of
certain hazardous materials regulations under this voluntary disclosure
reporting program. This applies to violations of 49 CFR part 175, which
cover certain reporting, training, acceptance, loading, unloading,
handling, and stowage requirements. The voluntary disclosure reporting
program applies only when the air carrier discovers an apparent
violation and notifies the FAA HAZMAT Branch Manager before it learns
of the apparent violation.
In its comments, CORAR states proposed notification of any
discrepancy without clarification implies simple discrepancies
resulting from unintentional human error, such as a missing or
illegible TI value on a Class 7 package label, would be subject to
reporting. CORAR states, ``[E]xpanding of resources required to make
and respond to such a report is not warranted, particularly when the
proposed rule also requires that the report include the address of the
shipper or person responsible for the discrepancy, if known, by the air
carrier.'' CORAR disagrees with the proposal to add the requirement for
the address of the shipper or person responsible for the discrepancy,
if known, to be supplied by the air carrier. CORAR states, ``It seems
obvious that any investigation resulting from the report of a
discrepancy will include a review of shipping papers, air bills and
package labels that will provide the name of the consignor.'' CORAR
further states, ``Any conclusion of fault or root cause should be the
responsibility of the investigator and not the reporting party in order
to avoid any wrongful allegation or potential shifting of
accountability from another party with a vested interest in hazardous
materials distribution.''
ATA suggests the volume of items now being removed from baggage has
made it very burdensome for carriers to file discrepancy reports under
the current Sec. 175.31 procedures. ATA states it strongly opposes the
proposal to require the passenger address, if known, suggesting there
must be broader and more effective and efficient means of public
outreach by FAA than requiring carriers to research and supply
thousands of addresses on commonplace items, e.g., lighters, spray
starch, oversized cans of hairspray, which FAA might or might not use
in
[[Page 14594]]
an individual outreach letter. ATA states, ``[R]esearching addresses
could add to the already considerable burden of filing a report.''
According to ATA, ``To require carriers to provide addresses, if known,
on all reports would only be providing considerable information that
the FAA is unlikely to use.'' Additionally, ATA states, ``In the
carrier's view, individual outreach would be appropriate only in cases
where a passenger was carrying hazardous materials that pose more
significant safety risks, such as fireworks.''
We appreciate the points made by CORAR and ATA regarding the
proposed requirement to include the address of the person responsible
for the discrepancy in the discrepancy report. The address must only be
included if it is known by the operator. In this final rule, we are
adopting the proposed addition to Sec. 175.31(a)(6) to require the
address of the shipper or person responsible for the discrepancy, if
known, by the air carrier. Currently, Sec. 175.31(b)(2) requires air
operators to notify FAA, in part, when baggage subsequent to its
offering and acceptance, is found to contain undeclared hazardous
materials. When security screeners suspect checked baggage may contain
an unauthorized hazardous material, they bring the item to the
attention of the air carrier accepting the baggage so the air carrier
can make a determination if the item is authorized to be in the
baggage. If the air carrier determines the item constitutes a
discrepancy, it must notify the FAA. Since January, 2002, the FAA has
received more than 44,000 discrepancy reports from air carriers in
accordance with the Sec. 175.31 reporting requirements. FAA and PHMSA
have implemented numerous outreach initiatives intended to educate the
public about the HMR. For example, PHMSA and FAA have: (a) Issued
safety notices in the Federal Register; (b) deployed informational
kiosks at major airports to alert passengers about the types of items
not authorized to be transported in luggage; and (c) conducted over
1,000 outreach presentations each year. Despite these outreach efforts,
the number of hazmat discrepancies reported by air carriers from
checked baggage continue to grow. Therefore, PHMSA and FAA believe a
more targeted outreach and education campaign is necessary. With the
advent of universal checked baggage security screening, the FAA has
developed an electronic system that prioritizes the discrepancy reports
received based on risk. Although many discrepancy reports include
address information, most do not. When the passenger's or shipper's
address information is included with a discrepancy report involving
higher risk hazardous materials such as fireworks, gasoline, propane,
etc, a manually prepared Letter of Investigation is generally sent to
the alleged violator in an attempt to gain more information. When the
relevant address information is included with a discrepancy report
involving lesser risk hazardous materials, an outreach notice is
generated and mailed to the responsible passenger. Since April 2005,
the FAA has mailed over 10,000 of these automated outreach notices to
airline passengers. The address of the passenger or shipper thought to
be responsible for a reported discrepancy is a crucial element in the
successful resolution of these events.
As an interim measure, the FAA has experienced some success
obtaining addresses as part of discrepancy reports by using subpoena
authority contained in 49 U.S.C. Section 5121 and Part 13 of the
Federal Aviation Regulations, 14 CFR part 13. This experience suggests
many cases involve air carriers who know the relevant passenger's
address information.
CORAR also requests further clarification of the phrase ``as soon
as practicable'' for reporting and asks us to establish a timeframe for
reporting such as immediate, 24 hour, 30 days, etc. For purposes of
Sec. 175.31, the phrase ``as soon as practicable'' means without undue
delay. The person is not required to stop what they are doing and
contact FAA immediately.
H. Sections 175.33 and 175.35 Shipping Papers and Notification of
Pilot-in-Command
In the NPRM, we proposed to consolidate all the requirements
related to shipping papers (Sec. 175.35), their retention for two
years after the material is accepted by the initial carrier (Sec.
175.30(a)(2)), and the notification to pilot-in-command (NOPIC) into
one section--Sec. 175.33, entitled ``Shipping papers and notification
of pilot-in-command.''
ATA states Sec. 175.33(b)(1)(i)(ii) requires extraneous and
unnecessary information on a NOPIC. ATA asserts there is no safety-
related reason for a NOPIC to include information about outer
packaging. According to ATA, the requirement was added to shipping
certification in the HM-215G final rule, but is not required in a NOPIC
under ICAO Technical Instructions 7.4.1.1(e) and (f). ATA states,
``[T]hese elements have grown unintentionally as supplemental shipping
paper requirements have been added to both U.S. and international
regulations.'' ATA further states, ``Inclusion of details such as the
EX number for airbags (but not for other explosives when the detail is
marked on a package or shipping papers), State exemptions, or similar
information cross-referenced to the shipping papers is irrelevant, and
possibly confusing to the flight crew and/or emergency responders.''
ATA suggests these requirements should be discussed with DOT, FAA,
National Transportation Safety Board and international authorities as
appropriate. FedEx Express states it does not believe it is the intent
of PHMSA to require a description of the outer package on the NOPIC
which provides no safety benefit and could delay or keep emergency
response personnel from reviewing pertinent information.
We did not propose any revision to the requirements related to
shipping papers or the preparation and delivery of a NOPIC. Therefore,
the comments summarized above are beyond the scope of this rulemaking.
ALPA proposes adding a revision to Sec. 175.33(b) to state,
``allowing adequate time for review'', where the NOPIC is referenced.
ALPA states operators or their agents wait until the very last minute
before departure to provide flight crews with hazardous materials
information contained in the NOPIC. According to ALPA, ``Just prior to
departure is not the best time to provide this information to the
flight crew. This does not allow the time required to properly examine
the NOPIC, determine legality, and, where possible check the proper
loading of these commodities.''
We agree with ALPA, operators should provide the NOPIC to the
pilot-in-command early enough to allow adequate time for review.
However, we believe the current wording, which requires the NOPIC to be
provided to the pilot-in-command as early as practicable, is adequate.
Therefore, we are not adding the statement ``allowing adequate time for
review'' to Sec. 175.33(b).
I. Section 175.40 Keeping and Replacement of Labels
This section requires aircraft operators to maintain an adequate
supply of labels in case a label becomes lost or destroyed. Consistent
with the removal of this section from the other modal parts of the HMR,
we proposed the removal of this section. Commenters who addressed this
section support its removal. Therefore, in this final rule, we are
removing the requirement as we proposed.
[[Page 14595]]
J. Sections 175.75 and 175.85 Quantity Limitations and Cargo Location
Sections 175.75 and 175.85 prescribe limitations on the quantity of
hazardous materials authorized to be carried aboard passenger-carrying
or cargo-only aircraft, and the location of those materials,
respectively. The quantity limitations for hazardous materials
permitted aboard passenger-carrying aircraft are specified in Sec.
175.75(a)(2). This section states no more than 25 kg of hazardous
materials and, in addition, 75 kg net weight of Division 2.2 (non-
flammable compressed gas) may be carried aboard a passenger-carrying or
cargo-only aircraft:
(1) In an accessible cargo compartment;
(2) In any freight container within an accessible cargo
compartment; or
(3) In any accessible cargo compartment of a cargo-only aircraft if
the hazardous materials are loaded as to be inaccessible unless in a
freight container.
Class 9 materials and consumer commodities are excepted from the
quantity limitations of Sec. 175.75(a)(2). Section 175.85(b) requires
hazardous materials packages acceptable for cargo-aircraft only to be
loaded in a manner allowing access to the package by crew members.
Section 175.85(a) prohibits the carriage of a hazardous material in
the passenger cabin or on the flight deck of any aircraft, and
specifies conditions under which hazardous materials may be carried on
main-deck cargo compartments. Section 175.85(c)(1)(i) through (v)
provides exceptions for cargo-only operations from the quantity
limitations of Sec. 175.75(a)(2), and accessibility requirements of
Sec. 175.85(b) for those hazardous materials listed. Section
175.85(c)(2) provides exceptions, when other means of transportation
are impracticable, to the accessibility requirement of Sec. 175.85(b)
and the quantity limitation requirements of Sec. 175.75(a)(2) for
hazardous materials acceptable by both cargo-only and passenger-
carrying aircraft. These exceptions require packages to be carried in
accordance with procedures approved in writing by the nearest FAA Civil
Aviation Security Field Office (CASFO). Columns 9A and 9B of the Sec.
172.101 Hazardous Materials Table (HMT) specify limitations on
individual package quantities, or list packages forbidden from
transportation by aircraft. Section 173.27 specifies inner receptacle
limits for combination packages.
Sections 175.85(c)(3)(i) through (iii) provide exceptions for
small, single-pilot cargo-only aircraft from the accessibility
requirements of Sec. 175.85(b) and the quantity limits of Sec.
175.75. These exceptions apply when small aircraft are the only means
of transporting hazardous materials to a particular destination. This
applies to airports and locations incapable of supporting larger
aircraft operations, where the only means of access is by smaller
aircraft. The provisions of Sec. 175.85(c)(3) do not require approval
by the FAA.
To make these requirements easier to understand, in the NPRM we
proposed to merge the requirements of Sec. Sec. 175.75 and 175.85 into
one section and remove any unnecessary paragraphs. We also proposed to
eliminate the 25 kg cargo compartment restriction from cargo aircraft.
We did not propose to increase or eliminate the limitation on the
amount of hazardous materials authorized to be transported in an
inaccessible cargo compartment of a passenger aircraft. We also
proposed to eliminate from the exception in Sec. 175.85(c)(3) the
requirement indicating shipment by other means of transportation is
impractical. We did not propose to eliminate or modify the exception
from the 25 kilogram limitation currently afforded Class 9 and ORM-D
materials. In an effort to enhance compliance and further clarify the
cargo loading requirements, we proposed to add a chart at the end of
Sec. 175.75 to summarize these requirements.
ALPA does not support the proposal to eliminate the 25 kg cargo
compartment restriction provision from all cargo operations or cargo-
only aircraft. ALPA asserts the greatest danger to an aircraft in-
flight from hazardous materials is fire, and, according to ALPA, the
quantity limitations and accessibility provisions reduce the potential
danger. ALPA states, ``Increasing the quantities of hazardous materials
that are inaccessible in cargo compartments without an active fire
suppression system is not sound management of the safety risk.'' In
addition, ALPA did not support the proposal to eliminate DOT E-11110
and incorporating it into the HMR. This exemption authorizes the
transportation of certain hazardous materials in an inaccessible
location aboard a cargo aircraft in quantities exceeding those
authorized by Sec. 175.75(a)(2). According to ALPA, the proposal is
not warranted, and believed this change could significantly increase
the potential for fire aboard an aircraft by avoiding these
accessibility requirements.
UPS supports the proposal to eliminate the 25 kg quantity limits,
stating it recognizes safety margins represented by quantity limits and
packaging requirements are applicable to shipments eligible for
transportation on passenger aircraft. According to UPS, ``We note that
outside the U.S., the lack of any requirements similar to the current
Sec. 175.75 gives PHMSA a sound safety justification for its proposed
amendment to this section.'' UPS also states, ``We foresee a
simplification of training for employees, as a result of this proposal.
This benefit is important, because we believe- and have believed for
many years-that the effort expended on training loaders to comply with
the current requirements of Sec. 175.75 can result in confusion among
some employees.'' UPS also supports incorporation of the provisions of
DOT-E 11110 into the HMR which authorizes the transportation of certain
hazardous materials in an inaccessible location aboard a cargo aircraft
in quantities exceeding those authorized by Sec. 175.75(a)(2) as a
reduction in an administrative burden for both PHMSA and UPS.''
ATA supports the proposal to merge Sec. Sec. 175.75 and 175.85,
and eliminate the 25/75 kg cargo compartment restriction for cargo
aircraft and the requirement for shipping by other means be
impractical. However, ATA states PHMSA should also remove the current
quantity restriction applicable to passenger aircraft and align the HMR
with the ICAO Technical Instructions. In addition, the Association of
HazMat Shippers (AHS) indicates it strongly supports removal of the
cargo compartment restrictions for materials authorized aboard
passenger aircraft when carried on cargo aircraft.
RAA suggests the proposal in Sec. 175.75(a) is not appropriate for
small cabin airplanes. For that reason, RAA asks PHMSA to remove the
proposal from this section.
To make these requirements easier to understand, we are adopting
our proposal to merge the requirements of (Sec. 175.75 and 175.85 into
one section and remove any unnecessary paragraphs. However, based on
comments received and further consultation, we are not adopting our
proposal to eliminate the 25 kg cargo compartment restriction from
cargo aircraft. We agree, such a restriction is necessary for the
safety of cargo aircraft transporting hazardous materials and
inaccessible passenger aircraft quantities of hazardous materials on
cargo-only aircraft operations would unnecessarily compound the
situation faced by the crew in an unrelated fire.
[[Page 14596]]
Therefore, we are not adopting any proposal to modify the limitation on
the amount of hazardous materials authorized to be transported in an
inaccessible cargo compartment of a cargo aircraft.
In this final rule, we are revising the provisions to clarify the
quantity limitations to promote compliance and understanding. Thus, we
are adopting our proposal to add a chart at the end of Sec. 175.75 to
summarize these requirements and clarify the language. We are also
adopting our proposal to eliminate from the exception in Sec.
175.85(c)(3) the requirement for shipment by other means of
transportation be impractical.
The following table lists the existing paragraphs in (Sec. 175.75
and 175.85 and indicates where we are moving them:
------------------------------------------------------------------------
Old section and paragraph New section and paragraph
------------------------------------------------------------------------
175.75(a)(1).............................. Removed as unnecessary.
175.75(a)(2).............................. 175.75(b).
175.75(a)(3).............................. 175.700.
175.75(b)................................. 175.75(b) and (c).
175.85(a)................................. 175.75(a).
175.85(b)................................. 175.75(d).
175.85(c)(1).............................. 175.75(d)(1).
175.85(c)(2).............................. 175.75(d)(2).
175.85(c)(3).............................. 175.75(d)(3).
175.85(d)................................. Removed as unnecessary.
175.85(e)................................. 175.75(a).
175.85(f)................................. 175.310.
175.85(g)................................. Removed as unnecessary.
175.85(h)................................. 175.501.
175.85(i)................................. 175.501.
175.85(j)................................. 175.75(a).
------------------------------------------------------------------------
K. Section 175.78 Stowage Compatibility of Cargo
For stowage of hazardous materials on an aircraft, in a cargo
facility, or in any other area at an airport designated for the stowage
of hazardous materials, packages containing hazardous materials with
the potential to react dangerously with one another may not be placed
next to each other in a position allowing a dangerous interaction in
the event of leakage. At a minimum, segregation instructions prescribed
in the segregation table in Sec. 175.78 must be followed to maintain
acceptable segregation between packages containing hazardous materials
with different hazards.
ALPA states PHMSA should address the loading compatibility and
associated potential hazards of Class 8 corrosives in this rulemaking.
ALPA states these materials present a unique risk to be addressed.
According to ALPA, ``Strong acids and strong bases should be segregated
onboard aircraft. While we recognize this issue would require
substantial regulatory changes regarding hazard classification and
hazard communication, we feel the relative danger of an interaction not
the difficulty of regulatory change, should be the determining factor
in whether these substances are segregated.''
We did not propose to make this change in the NPRM. Therefore, the
request is beyond the scope of this regulatory action. We may consider
segregation of strong acids and strong bases onboard aircraft in a
future rulemaking.
L. Sections 175.79, 175.81, and 175.88 Inspection, Orientation and
Securing of Packages of Hazardous Materials
In the NPRM, we proposed to merge the requirements of Sec. Sec.
175.79 (Orientation of cargo); 175.81 (Securing of packages containing
hazardous materials); and 175.88 (Inspection of unit load devices) into
a single section--Sec. 175.88, entitled ``Inspection, orientation, and
securing of packages of hazardous materials.''
We received no comments on this proposal. Therefore, we are
adopting our proposal to merge the requirements of (Sec. 175.79
(Orientation of cargo); 175.81 (Securing of packages containing
hazardous materials); and 175.88 (Inspection of unit load devices) into
Sec. 175.88.
M. Section 175.90 Damaged Shipments
We proposed no amendments for this section.
N. Section 175.305 Self Propelled Vehicles
We proposed to move the requirements of this section to Sec.
173.220. We received no comments on this proposal. Therefore, we are
adopting our proposal to move the requirements of this section to Sec.
173.220.
O. Sections 175.310 and 175.320 Transportation of Flammable Liquid Fuel
Within Alaska or Into Other Remote Locations and Cargo Aircraft, Only
Means of Transportation
Section 175.310, ``Transportation of flammable liquid fuel within
Alaska or into other remote locations,'' provides exceptions for the
shipment of flammable liquid fuels in the State of Alaska and other
remote locations. Section 175.320 provides an exception from the
quantity limitations in Sec. Sec. 175.75 and 172.101, when certain
conditions are met. Section 175.320 authorizes the transportation of
certain hazardous materials by cargo-only aircraft in inaccessible
cargo locations when other means of transportation are impracticable.
The term impracticable means transportation is not physically possible
or cannot be performed by routine and frequent means of other
transportation, due to extenuating circumstances.
In the NPRM, we proposed to merge the passenger-carrying aircraft
operations of current Sec. 175.310 and the cargo aircraft operations
of the current Sec. 175.320 into one section. However, similar loading
and operating requirements were broken out of each and combined into
paragraphs that will apply to both types of operations. This resulted
in some additional operator requirements for the passenger aircraft
operations (the 14 CFR references to operating manuals and FAA
approval) which do not exist in current Sec. 175.310. However, these
requirements have applied to the operator via 14 CFR even though they
were not specifically mentioned in the HMR.
We proposed to remove the authorization to transport Class 1
(explosive) materials in accordance with Sec. 175.320. In our view,
because of security concerns and requirements, the carriage of
explosives outside the normal requirements of the HMR should be handled
by special permit. Alaska Air Carriers Association states the provision
for Class 1 materials supports a variety of interests in Alaska
including construction and mining, communities staging fireworks
displays, and individuals in remote cabin parcels. AACA opposes the
proposal eliminating the provision for Class 1 explosives because it
did not consider the transportation of Class 1 materials within the
United States where air is the only means of transportation; AACA
suggests the provisions of Sec. 175.320 be re-instated. In addition,
Northern Air Cargo also expressed concern regarding the proposal to
eliminate the provisions for Class 1 materials, stating, ``Limiting
shipments of explosives and requiring that an exemption for transport
be requested with a minimum of 120 days lead time is unreasonable.'' It
further states mining, construction and military operations and
projects in inaccessible Alaskan locations by road or water make it
difficult to give the kind of advance notice required to obtain an
exemption. Northern Air Cargo asks PHMSA to continue the current Class
1 provisions.
In this final rule, we are adopting our proposal to remove the
authorization to transport Class 1 (explosive) materials in accordance
with Sec. 175.320 due to security reasons and in accordance with a
February 10, 2004 final rule published under Docket HM-232C (69 FR
6195). In
[[Page 14597]]
our view, because of security concerns and requirements, the carriage
of explosives outside of the normal requirements of the HMR should be
handled by special permit. The removal of the authorization to
transport Class 1 materials also allows the deletion of some of the
operator restrictions dealing with advance notices, airports, loading
areas, etc. under the provisions.
We are also adopting our proposal to remove the reference to
flammable liquids mentioned by name and proposing a new combined
section limited to fuels, similar to existing Sec. 175.310. Oil,
toluene, and methyl alcohol would no longer be covered under this
section unless they are being used as a fuel. We are adopting our
proposal to remove the chart since there is only one commodity being
covered (combustible liquids are mentioned in the paragraph covering
bulk tanks). Fuels will be limited to those in Packing Group II or III
(Packing Group I fuels, which have a boiling point of 35C/95F or
higher, would be allowed only in aircraft tanks designed to hold such
liquids).
P. Section 175.501 Special Requirements for Oxidizers and Compressed
Oxygen
In the NPRM, we proposed to move the stowage requirements
applicable to the transportation of compressed oxygen currently found
in Sec. Sec. 175.10(a)(7), and 175.85(h) and (i), to a new section--
Sec. 175.501, entitled ``Special requirements for oxidizers and
compressed oxygen.''
We received no comments on this proposal. Therefore, we are
adopting our proposal to move the stowage requirements applicable to
the transportation of compressed oxygen currently found in Sec. Sec.
175.10(a)(7), and 175.85(h) and (i), to Sec. 175.501.
Q. Section 175.630 Special requirements for Division 6.1 and Division
6.2 Material
No amendments were proposed or adopted in this section. However,
two comments were received regarding this section from RAA and ATA.
Both are beyond the scope of this rulemaking.
R. Sections 175.700, 175.701, 175.702, 175.703, 175.704, 175.705 and
175.706 Transportation of Radioactive Materials Aboard Aircraft
Sections 175.700, 175.701, 175.702, 175.703, 175.704, 175.705, and
175.706 of part 175 contain numerous provisions related to the
transportation of radioactive materials aboard aircraft. In the NPRM,
we attempted to rewrite many of these provisions to facilitate
understanding of these requirements. We proposed to move requirements
related to the carriage of radioactive materials with undeveloped film
from these sections. However, except in the case of shipments with
undeveloped film and separation distances for cargo aircraft, it was
not our intent to make any substantive revisions to Sec. Sec. 175.700,
175.701, 175.702, 175.703, 175.704, or 175.705. With regard to the
separation distances from undeveloped film, we proposed to remove them
from the HMR. It is our belief such requirements should not be part of
Federal regulations, but instead should be addressed by an agreement
between the shipper and the airline. We also proposed to adopt the
separation distances in the ICAO Technical Instructions for shipments
aboard cargo aircraft of greater than 50 TI. The following table
identifies the existing requirements and where we proposed to move
them:
------------------------------------------------------------------------
Existing requirement Proposed new section
------------------------------------------------------------------------
175.75(a)(3).............................. 175.700(b).
175.700(a)................................ 175.700(b) and (c).
175.700(b)................................ 175.705(b) and (c).
175.700(c)................................ 175.700(a).
175.700(d)................................ 175.700(a).
175.701(a)................................ Removed, unnecessary.
175.701(b)(1)............................. 175.701(c).
175.701(b)(2)............................. 175.701(a).
175.701(b)(3)............................. 175.701(b).
175.701(c)................................ 175.701(d).
175.702(a)................................ 175.702(b).
175.702(b) and (b)(1)..................... 175.702(a).
175.702(b)(2)(i).......................... 175.702(a).
175.702(b)(2)(ii)......................... 175.702(b).
175.702(b)(2)(iii)........................ 175.702(c).
175.702(b)(2)(iv)......................... 175.700(b)(2).
175.703(a)................................ 175.706.
175.703(b)................................ 175.703(a).
175.703(c)................................ 175.703(b).
175.703(d)................................ 175.700(a).
175.703(e)................................ Removed, already covered by
Sec. 173.441.
175.704................................... Only editorial changes made
to this section.
175.705(a)................................ 175.705(a).
175.705(b)................................ 175.705(a).
175.706................................... 175.703(a).
------------------------------------------------------------------------
The Federal hazardous materials transportation law addresses
ionizing radiation material transportation. (49 U.S.C. 5114.) It states
the material may be transported on a passenger-carrying aircraft in air
commerce only if the material is intended for use in, or incident to,
research or medical diagnosis or treatment; and does not present an
unreasonable hazard to health and safety when being prepared for, and
during transportation. Section 175.700 prohibits, in addition to other
requirements, a person from carrying in a passenger-carrying aircraft
any package required to be labeled in accordance with Sec. 172.403
with a RADIOACTIVE YELLOW II or III label, unless certain provisions
are met. In addition, Sec. 175.700(c) states (except for limited
quantities) no person shall carry any class 7 material aboard a
passenger-carrying aircraft unless the material is intended for use in
research, medical diagnosis, or treatment.
It appears some persons have misused the definition of ``research''
to avoid the restrictions in Sec. 175.700. We do not consider research
to include the application of existing technology to industrial
endeavors. For example, the use of radioactive material (e.g., iridium-
192) to detect cracks in oil field pipelines is not research, but the
application of existing scientific knowledge. Therefore, we are
adopting our proposal to revise the definition of research in Sec.
171.8 to clearly indicate it does not include the application of
existing technology to industrial endeavors.
FedEx Express strongly supports the harmonization of the
radioactive material separation distance requirements in Sec. Sec.
175.701 and 702 with the IAEA Regulations for the Safe Transport of
Radioactive Material, 1996 Edition (Revised) no. TS-R-1 and the ICAO
Technical Instruction for the Safe Transport of Dangerous Goods by Air.
These are practical changes, which will facilitate the air transport of
radioactive material and enhance radiation safety.
FedEx Express and CORAR support the adoption of the ICAO separation
distances for radioactive material in quantities exceeding a total
transport index of 50. They also support the allowance in Sec.
175.700(b)(2) for a combined transport index of up to 200. According to
CORAR, ``This adoption by regulations of conditional relief currently
provided by carrier exemption is a good example of practical rulemaking
that facilitates compliance and streamlines the efforts to transport
time-sensitive materials without compromising public or occupational
health and safety.''
CORAR suggests changes to current limits on fissile material
packages, as follows:
(1) In Sec. 175.700(c)(1), there is no reason to limit a single
fissile material package to a CSI no greater than 3.0. The fissile
material package will have both a TSI and a CSI. The TSI will still
be limited to not greater than 3.0, thereby limiting the external
radiation exposure and will satisfy the congressional mandate on
which that regulation is based.
[[Page 14598]]
(2) In Sec. 175.700(c)(2), there is no reason to limit a single
fissile material package to 10 CSI. Note that existing regulations
limit a single fissile material package to no more than 50 CSI.
(3) In Sec. 175.702(b), the reference to transport index should
be eliminated. The separation distance for external radiation levels
are governed by the table in Sec. 175.700(c)(2).
We agree with CORAR's suggestions and have corrected the language
in this final rule accordingly.
CORAR supports the proposed removal of separation distance
requirements for undeveloped film in Sec. 175.703 and agrees
arrangements to prevent exposure should be made between shippers and
carries and not mandated by regulation. However, Eastman Kodak does not
support the proposal to remove the paragraph affecting the segregation
of undeveloped film and radioactive sources aboard aircraft. Eastman
Kodak suggests this provision provides a redundant and necessary
assurance that undeveloped film products will not be compromised due to
the proximity of certain radioactive sources during transportation.
Kodak states, ``Film customers, ranging from members of the general
public to the diagnostic, radiography and defense industries, rely on
being able to capture unique and/or transient images. In many cases,
these images cannot be recaptured, thus the consequences for the
medical and defense sectors can be very significant.'' Kodak further
states, ``Failure to have such requirements in place could result in
damaged product and lead to increased cost and loss of critical
information such as medical x-ray and aerial reconnaissance images.''
For this reason, Kodak recommends the elimination of the proposal to
remove this provision and retention of the segregation provision.
We agree with Eastman Kodak's viewpoints regarding the need to
protect the film, especially in medical and defense related
reconnaissance images. Also, we understand our regulations establish
the only requirements for the protective separation distances between
film and radioactive materials. As stated above, it is our belief
separation distances for film should be established and maintained
through an agreement between the airline and the shipper and should not
be part of HMR. However, we have decided to continue regulating the
separation distances between radioactive materials and film by not
adopting the proposal to remove the separation provision in Sec.
175.703(a), and we are moving these requirements to new Sec. 175.706.
Express.Net Airlines, LCC asks PHMSA to add a definition of
``routinely'' or delete the section altogether (175.705(d)). According
to Express.Net, ``If the intent of this section is to address the
dangers of cumulative exposure to radioactive material, carriers, using
multiple aircraft and rotating crewmember assignments will minimize
exposure compared to an air carrier with limited equipment or
personnel.'' Because we did not propose to remove this term or section
from the HMR, this comment is beyond the scope of this rulemaking.
III. Miscellaneous Proposals to the HMR
A. Quantity Limits in Column (9) of the Hazardous Materials Table (HMT)
Columns 9A and 9B of the Sec. 172.101 Hazardous Materials Table
(HMT) specify limitations on individual package quantities, or list
packages forbidden from transportation by aircraft. Section 173.27
specifies inner receptacle limits for combination packages. In an
effort to enhance compliance, we proposed to amend the heading for
column 9 of the HMT to reference Sec. Sec. 173.27 and 175.75 as a
reminder to comply with both section requirements for quantity
limitations for transportation by aircraft.
No comments were received on this proposal. We are adopting our
proposal to amend the heading for column 9 of the HMT to reference
Sec. Sec. 173.27 and 175.75 as a reminder to comply with both section
requirements for quantity limitations for transportation by aircraft.
B. Tire Assemblies
In the NPRM, we proposed to move the exception for tire assemblies
from Sec. 175.8 to Special Provisions A59 in Sec. 172.102(c)(2).
RAA does not agree moving this exception to Part 172 will
facilitate awareness and consistency within air transportation and
suggests it should remain in Sec. 175.8. RAA asserts operators will
have interpretation problems with inspectors over what constitutes
``protection from damage during transport'' for a tire and suggests a
number of other problems concerning securement of tires in a cargo hold
and the transportation of damaged tires. RAA recommends a requirement
for a damaged tire to be deflated so its pressure is below 25 psig,
which is the HMR definition for a Division 2.2 compressed gas.
In accordance with RAA's comments, we are not adopting the proposed
addition of tire assembly requirements to Special Provision A59. We
agree placing the requirement in Sec. 175.8 will facilitate awareness
and consistency in air transportation. Therefore, we are adding the
requirements for tire assemblies proposed in Special Provision A59 to
Sec. 175.8(b)(4) and adding a reference to Sec. 173.307(a)(2). We
also agree the exception for tire assemblies should be tied to the
definition of Division 2.2 gas. We have revised Sec. 175.8(b)(4)
accordingly.
C. Small Quantities, Limited Quantities and Consumer Commodities
The HMR contain exceptions for small quantities, limited
quantities, and consumer commodities. These exceptions allow materials
to be transported at reduced levels of regulation. Small quantities of
hazardous materials are excepted from all other requirements of the
HMR, provided certain criteria in Sec. 173.4 are met. Limited quantity
exceptions in the HMR are based on the class of the hazardous material,
and include more stringent requirements for air transportation.
Materials meeting the limited quantity exception and also meet the
definition of a consumer commodity as provided by Sec. 171.8, may be
renamed ``Consumer Commodity'' and reclassed as ORM-D. Consumer
commodities are excepted from specification packaging, labeling,
placarding and quantity limitations applicable to air transportation.
As currently written, these exceptions allow small quantities and
consumer commodities to be transported by aircraft even though they may
contain hazardous materials otherwise forbidden aboard aircraft. These
exceptions are inconsistent with the ICAO Technical Instructions, which
require before a hazardous material may be transported as an excepted
quantity (i.e., small quantity or a limited quantity), it must be
suitable for transportation aboard passenger aircraft. The ICAO
Technical Instructions also prohibit the transportation of small
quantities in checked and carry-on luggage.
In the NPRM, we proposed to eliminate a provision of the HMR
allowing the transportation of hazardous materials forbidden aboard
aircraft to be transported aboard aircraft as either ORM-D material or
small quantity material. In addition, we proposed for transportation by
aircraft only, to adopt the ICAO Technical Instructions provision that
requires shipments of limited quantities to comply with the passenger
aircraft net quantity limitation in the HMT. We proposed to amend all
the limited quantity sections of the HMR (e.g., Sec. 173.150) by
stating,
[[Page 14599]]
for transportation by aircraft, only hazardous materials authorized
aboard passenger-carrying aircraft may be transported as a limited
quantity. In addition, we proposed to amend Sec. 173.4 (small
quantities) to limit those small quantity materials authorized for
transportation aboard aircraft to those materials allowed aboard
passenger-carrying aircraft. We also proposed, consistent with the ICAO
Technical Instructions, to forbid the transportation of small
quantities of hazardous materials in carry-on or checked baggage.
Anderson Products, Inc. opposes the proposed amendment to Sec.
173.4 limiting the hazardous materials eligible for transport by
aircraft under the small quantity except to those authorized aboard
passenger aircraft. Anderson Products manufacturers and ships medical
sterilization devices worldwide and suggests this revision as proposed
would impose an undue economic burden on its shipments. Anderson
Products also notes the ICAO Technical Instructions currently provide
an exception under special provision A131 to permit ethylene oxide
sterilization devices to be transported under the excepted quantities
provision in 1;2.4 of the ICAO Technical Instructions in quantities
containing less than 30 mL per inner packaging.
Anderson Products suggests ``in the interest of full consistency
with the ICAO Technical Instructions--which was apparently PHMSA's
objective in proposing the new Sec. 173.4(a)(9)(i)--if the proposed
new paragraph is to be adopted a similar exception should be provided
in the HMR for ethylene oxide sterilization devices.'' In addition,
Anderson Products ``questions the need to include the proposed new
173.4(a)(9)(i) at all.'' According to Anderson Products, ``[T]here is
no evidence to support that the more restrictive provisions adopted by
ICAO which are now being proposed for incorporation into the HMR in the
interests of ``consistency'' with ICAO, were necessary to ensure safety
in air transport.''
We agree with Anderson Products comments regarding the need for
consistency with ICAO in this case and the need for an exception for
ethylene oxide sterilization devices. Therefore, we are adopting the
exception in Special Provision A131 of the ICAO Technical Instructions
for ethylene oxide sterilization devices under a new Special Provision
(A59) in 172.102. In addition, we are adopting Special Provision A75 of
the ICAO Technical Instructions to provide a similar exception for
hydrogen peroxide sterilization devices under a new Special Provision
(A60) in 172.101.
In this final rule, we are adopting our proposal to eliminate a
provision of the HMR which inadvertently allows the transportation of
hazardous materials forbidden aboard aircraft to be transported aboard
aircraft as either a consumer commodity or small quantity material. In
addition, we are adopting our proposal to amend all of the limited
quantity sections of the HMR (e.g., Sec. 173.150) by stating, for
transportation by aircraft, only hazardous materials authorized aboard
passenger-carrying aircraft may be transported as a limited quantity.
We are adopting our proposal to amend Sec. 173.4 (small quantities) to
limit those small quantity materials authorized to be transported
aboard aircraft to those allowed aboard passenger-carrying aircraft.
However, we have decided to add new paragraph (a)(11) to Sec. 173.4 in
place of redesignating paragraphs (a)(9) and (a)(10) as (a)(10) and
(a)(11), respectively, and then adding new paragraph (a)(9). Adding one
new paragraph to Sec. 173.4 is far less disruptive and much easier to
follow than redesignating two paragraphs and adding a new paragraph.
Except as noted above, we are also adopting our proposal, consistent
with the ICAO Technical Instructions, to forbid the transportation of
small quantities of hazardous materials in carry-on or checked baggage.
The ICAO Technical Instructions provision to require shipments of
limited quantities to comply with the passenger aircraft net quantity
limitation in the HMT we proposed, was in error. The provision in ICAO
is not consistent with the HMT net quantity limitation for passenger
aircraft. Therefore, we are unable to adopt the provision as proposed
and will not be making a change to the quantity limits for limited
quantities.
D. Section 173.7
In the NPRM, we proposed to move the exception currently in Sec.
175.5(a)(2), related to an aircraft under the exclusive direction and
control of a government, to Sec. 173.7. We also proposed to modify the
exception by making it an exception from the ``subchapter'' and not
solely an exception from part 175.
No comments were received on these proposals. Therefore, we are
adopting these amendments as proposed.
E. Section 173.217
In the NPRM, in the proposed revision of Sec. 175.10, we proposed
to maintain the exception for dry ice in checked and carry-on baggage
and move the exception for dry ice in airline food service to Sec.
175.8(b)(2). We proposed to relocate the exception for 2.3 kg (5
pounds) of dry ice as cargo/freight to Sec. 173.217.
We received no comments on this issue. Therefore, we are adopting
the changes as proposed in the NPRM. In the revision of Sec. 175.10,
we will maintain the exception for dry ice in checked and carry-on
baggage and Sec. 175.8 will contain the exception for dry ice used in
airline food service. To retain the 2.3 kg (5.0 pounds) exception for
the shipment of dry ice as cargo/freight, we are adopting our proposal
to move this exception from Sec. 175.10 to a new paragraph (f) in
Sec. 173.217.
F. Section 173.220
The proposed revision would move the requirements for self-
propelled vehicles from Sec. 175.305 to paragraph (b)(4)(iii) of this
section. No comments were received on the proposed revision. Therefore,
in this final rule we are moving the requirements for self-propelled
vehicles from Sec. 175.305 to paragraph (b)(4)(iii).
IV. Rulemaking Analysis and Notices
A. Statutory/Legal Authority for This Rulemaking
This final rule is published under the authority of the Federal
hazardous materials transportation law (Federal hazmat law; 49 U.S.C.
5101 et seq.) and 49 U.S.C. 44701. Section 5103(b) of the Federal
hazmat law authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation, including security, of
hazardous material in intrastate, interstate, and foreign commerce.
Title 49 United States Code Sec. 44701 authorizes the Administrator of
the Federal Aviation Administration to promote safe flight of civil
aircraft in air commerce by prescribing regulations and minimum
standards for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce and national security. Under
49 U.S.C. 40113, the Secretary of Transportation has the same authority
to regulate the transportation of hazardous material by air, in
carrying out Sec. 44701, that he has under 49 U.S.C. 5103.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. This final rule is not
considered a significant rule under the Regulatory Policies and
[[Page 14600]]
Procedures of the Department of Transportation [44 FR 11034].
The changes resulting from this final rule have minimal cost
implications that will be more than offset by the benefits. For
example, the costs of altering the small quantity and limited quantity
requirements so they allow only those materials authorized for
transportation on passenger-carrying aircraft and the costs of
including a new requirement in Sec. 175.3 for ORM-D materials to be
inspected before they are placed aboard an aircraft are offset by
eliminating the unacceptable risk to passengers and crew that existed
prior to this final rule. A change with a minimal impact on the cost to
carriers is the requirement to include the address of the shipper, if
known, in the discrepancy report required by Sec. 175.31. However, the
cost resulting from this new discrepancy report requirement will be
offset by the benefits provided elsewhere in this final rule.
In addition to the costs and benefits provided above, this final
rule will provide several other benefits to help offset the costs. The
majority of this rulemaking address clarification of requirements
applicable to the transport of hazardous materials aboard aircraft. By
focusing on clarity this final rule will enable shippers, carriers, and
enforcement officers to gain a better understanding of the regulations.
The changes we have adopted in this final rule will clarify the
aircraft requirements, which, will promote compliance and enforcement
in order to increase safety. Other increases in transportation safety
are realized by harmonizing the domestic and international regulations
where applicable. Harmonization will also provide for continued access
to foreign markets by domestic shippers of hazardous materials. In
addition, carriers will realize a cost savings from the elimination of
the requirement for carriers to maintain replacement labels to be used
in the event that a hazmat label becomes lost or damaged.
The majority of amendments in this final rule result in cost
savings and several ease the regulatory compliance burden for shippers
engaged in domestic and international commerce, including trans-border
shipments within North America.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local, and Indian tribe requirements but
does not propose any regulation that has substantial direct effects on
the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on the following
subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses subject areas 2, 3, and 4 above. This
final rule preempts any state, local, or Indian tribe requirements
concerning these subjects unless the non-Federal requirements are
``substantively the same'' as the Federal requirements. This final rule
is necessary to update and clarify the hazardous materials
transportation requirements by aircraft which will enhance future
compliance.
Federal hazardous materials transportation law provides at Sec.
5125(b)(2), if DOT issues a regulation concerning any of the covered
subjects, DOT must determine and publish in the Federal Register the
effective date of Federal preemption. The effective date may not be
earlier than the 90th day following the date of issuance of the final
rule and not later than two years after the date of issuance. PHMSA
proposes the effective date of Federal preemption will be 90 days from
publication of a final rule in this matter in the Federal Register.
D. Executive Order 13175
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications and does not impose direct compliance
costs, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each
agency to analyze regulations and assess their impact on small
businesses and other small entities to determine whether the rule is
expected to have a significant impact on a substantial number of small
entities. The provisions of this final rule apply to aircraft
operators. The Small Business Administration criterion specifies an
aircraft operator/carrier is ``small'' if it |
