Before the

Pipeline and Hazardous Materials Safety Administration

U.S. Department of Transportation

Washington D.C.

Pipeline and Hazardous Materials Safety Administration

Comments on

Hazardous Materials: Revision to Requirements for the Transportation of
Batteries and Battery-Powered Devices; and Harmonization With the United
Nations Recommendations, International Maritime Dangerous Goods Code,
and International Civil Aviation Organization's Technical Instructions

\[Dockets PHMSA-2007-0065 (HM-224D) and PHMSA 2008-0005 (HM-215J)\]

Communications with respect to this petition should be directed to:

Leo Diaz UPS

Public Affairs Manager 316 Pennsylvania Ave., SE

Washington, DC 20003

\(202\) 675-3386

Samuel S. Elkind UPS

Corporate Regulated Goods Manager 55 Glenlake Parkway NE

Atlanta, GA 30328

\(404\) 828-7368

September 25, 2008

Before the

Pipeline and Hazardous Materials Safety Administration

U.S. Department of Transportation

Washington D.C.

Pipeline and Hazardous Materials Safety Administration

Comments on

Hazardous Materials: Revision to Requirements for the Transportation of
Batteries and Battery-Powered Devices; and Harmonization With the United
Nations Recommendations, International Maritime Dangerous Goods Code,
and International Civil Aviation Organization's Technical Instructions

\[Dockets PHMSA-2007-0065 (HM-224D) and PHMSA 2008-0005 (HM-215J)\]

UPS takes this opportunity to provide comments to the Notice of Proposed
Rulemaking in Dockets HM-224D and HM-215J, published in the July 31,
2008 Federal Register. UPS is a multi-modal, international carrier of
small packages and documents.[^1] UPS also transports freight by all
modes, in its U.S. less-than-truckload network, on its global air
network, and in its capacity as an air freight forwarder and ocean
non-vessel operating common carrier. We also provide logistics and
distribution services to clients through UPS Supply Chain Services. UPS
transports hazardous materials in each of its services and among many of
the countries in its network.

[Reporting Requirements for Batteries]{.underline}

In amendments proposed for §171.15(b)(6), PHMSA seeks to require
immediate telephone notification of the National Response Center (NRC)
in the event of certain incidents involving batteries. This proposed
addition specifies a call would be required when "A fire, violent
rupture, explosion or a dangerous evolution of heat occurs involving
electrical devices, such as batteries or battery-powered devices" \[73
FR 44826\].

UPS is sympathetic to the need to better understand the causes of such
incidents and to document their consequences. However, we cannot support
this proposal. As written, the new language will create significant
challenges for carriers and invite accusations of non-compliance for
conditions that the carrier could not detect. Experience demonstrates
that there are occasions when fires occur but the cause cannot be
determined. For example, if a fire occurs in a trailer carrying a load
of several hundred small packages, one or more of which may contain
batteries, many hours or even days may be required to identify that the
batteries were in the trailer -- if that fact could ever be
determined.[^2] Once the fire has been extinguished, the contents of the
trailer would need to be examined to determine whether batteries were in
the load and whether they were -- or appeared to be -- related to the
fire. Since it is not unusual -- and in fact is quite reasonable -- for
fire fighters to shift or remove the contents of a trailer while
fighting a fire, post-incident analysis of the cause of the fire is
likely to be extremely difficult or impossible. As a practical matter,
therefore, in such a situation a carrier would know there was a fire but
could not determine the cause -- and certainly would not be in a
position to comply with NRC notification requirements with any
confidence that batteries can be identified as the cause.[^3]

An additional and very important concern relates to PHMSA's choice of
conditions for notification of the NRC. By citing "dangerous evolution
of heat" as a condition, PHMSA introduces too much subjectivity. If
PHMSA were to adopt the proposal as written, there could easily be
conditions in which a carrier's judgment not to make a telephone report
to the NRC is challenged by an agent's contrary judgment, and the
subjectivity of the regulation would provide no independent basis by
which to adjudicate the disagreement. Because agents would have the
ability to assess a penalty on the basis of such subjectivity, we
believe that PHMSA needs to remove this language from the amendments.

Of course there are other circumstances when batteries can be clearly
associated with an overheated, smoking or burning package -- such as
when the packages are being handled by employees. But even then, we do
not believe that a call to the NRC is justified, unless the fire results
in the kind of evacuation or operational disruption currently listed as
a basis for making immediate telephone notification under §171.15(b)(1).
Heat, smoke or fire can be confined to a single package, addressed
without operational disruption and reported in writing to PHMSA and (if
appropriate) FAA.

For this reason, amendments proposed for §§171.16 and 172.102, as well
as Special Provisions 130, 188 and 189, are important and useful. PHMSA
seeks to require the written reporting of incidents resulting in the
production of smoke, sparks, or dangerous evolution of heat \[73 FR
44826-44827 and 44843\]. With one reservation, we support the proposed
requirement to report such incidents, as transportation safety will
benefit from greater understanding of the extent to which such events
take place in commerce. Our reservation with this proposed amendment
involves the same concern about the phrase "dangerous evolution of heat"
as mentioned in reference to amendments proposed for §171.15. PHMSA
needs to minimize the subjectivity of such proposed requirements.

[Air Waybill -- New Information Requirements]{.underline}

In the NPRM, PHMSA proposes a new requirement for information about air
shipments of batteries that are either not regulated or excepted from
regulation through compliance with certain provisions. Such shipments
would be required to have the phrase "Not Restricted" included on "the
air waybill." This proposed language appears for batteries in the new
special provision 130 in §172.102, and the new §173.159a(d)(2)(i) \[73
FR 44852\]. Similarly, PHMSA proposes to require the same statement on
"the air waybill" for other materials:

-   Manufactured apparatus containing Gallium \[§173.62(c) ; 73 FR
    44852\];

-   Certain manufactured articles containing Mercury
    \[§173.164(b)(1)(iii) ; 73 FR 44852\];

-   Airbag modules or seatbelt pretensioners installed in components,
    such as a steering column or door panel \[§173.166(d)(ii) ; 73 FR
    44852\];

-   Safety matches in quantities not exceeding 50 pounds \[§173.186(c);
    73 FR 44852\];

-   Aerosols and small gas receptacles with a capacity of less than 50
    mL -- \[§173.306(j); 73 FR 44859\]; and

-   Articles or apparatus containing not more than 100 mg of inert gas
    \[§173.307; 73 FR 44859\].

We understand that the proposal attempts to create consistency with
similar requirements in the new ICAO Technical Instructions. However,
for two reasons we object to the PHMSA proposals as they relate to the
use of air waybills. Our first objection relates to the fact that the
HMR currently does not regulate "the air waybill." This commercial
document, used by many air carriers as a contract of carriage, does not
really have any status in the HMR. In fact, there is currently only one
minor passing reference in the HMR to an "air waybill."[^4]

Our second concern relates to the fact that use of an air waybill is not
standard across the air carrier industry. Millions of air shipments,
including those in the UPS small package service, move every day without
an accompanying air waybill. The vast majority of such small package
service shipments are transported with an address label affixed to the
package; the address label contains the shipper and consignee
information and the associated tracking number for the shipment. [^5]

In other words, there are problems in developing requirements that rely
on an "air waybill." Because the document has no status in the HMR,
PHMSA's proposal depends on the unfounded assumption that an air waybill
will be generated for every air shipment. Because that assumption is
incorrect, the proposal cannot be used as written. By contrast with
these proposed changes in the HMR, the ICAO Dangerous Goods Panel
appears to have recognized this lack of uniformity among air carrier
practices. For example, when it amended the ICAO Special Provision A123,
the Panel inserted the requirement to include the phrase "Not
Restricted" on an air waybill, "*when an air waybill is issued*."[^6] We
respectfully suggest that PHMSA reconsider these proposals, especially
since the proposed amendments will not parallel the requirements as
expressed in ICAO.

If, in spite of our comments, PHMSA determines to continue with a
requirement for a statement on an air waybill, we have additional
concerns about the wording of the requirement in §173.166(d)(1)(ii). The
phrasing from the proposal reads as follows:

> \(1\) An air bag module or seat-belt pretensioner that has been
> approved by the Associate Administrator and is installed in a motor
> vehicle, aircraft, boat or other transport conveyance or its completed
> components, such as steering columns or door panels, is not subject to
> the requirements of this subchapter except for transportation by air:

(i) The incident reporting requirements of §171.15 of this subchapter;
    and

> \(ii\) **The air waybill must contain the words "not restricted."**
> \[73 FR 44852; PHMSA's proposed new material is shown in
> **boldface**\]

In this context, the requirement for an air waybill statement poses the
potential to create significant confusion. Conditions intended to
require the air waybill statement include the following:

-   A shipment of an air bag module or seatbelt pretensioner installed
    in a manufactured component of a vehicle, when it is shipped as a
    component; *and*

-   An airbag module or seatbelt pretensioner installed in an actual
    vehicle.

In the latter case, however, PHMSA's proposal would create the
unintended requirement for a shipment likely to be fully regulated as
UN3166 to be accompanied by an air waybill (assuming one is used) that
must state, "Not Restricted." This would create the paradoxical
impression that a shipment is both regulated (for the UN3166) and "not
restricted" (for the air bag or seatbelt pretensioner). While we assume
that such an outcome is not PHMSA's intention, this confusion highlights
the challenges of seeking to bring into the HMR an information
requirement on a document that has no other status in these regulations.

As a final point on this subject, we urge PHMSA to proceed carefully
with new documentation requirements, and to be clear about what the
agency expects carriers to do in connection with such requirements. Like
other carriers, UPS seeks to maximize the benefits of electronic records
and information, rather than paper documents, where that is possible.
Because more and more operations-related information is derived from
machine-readable labels and electronic systems that support sorters and
loaders, PHMSA should not expect carrier personnel routinely to seek
information related to hazardous materials on a document other than a
hazardous materials shipping paper, particularly when the package does
not otherwise require special handling. Packages that are excepted from
regulations -- and therefore offered without diamond hazard labels and
not accompanied by shipping papers -- move quickly through the handling
process. For carrier personnel, it is unreasonable for PHMSA to attach
any expectation to the information in these documents. As they accept,
sort and load the shipments, carrier personnel will not be opening these
documents and reviewing them, precisely because the packages are *not*
prepared as hazardous materials. Carrier personnel are simply not in a
position to study the various documents that might be affixed to
packages (whether packing lists, MSDSs, etc.), in the hopes that one of
the documents might contain some information prescribed by the HMR.[^7]

[Hazardous Materials Table and Special Provisions]{.underline}

In amendments proposed for the Hazardous Materials Table (§172.101), two
entries are shown as assigned to Special Provision 177:

> Gasohol *gasoline* *mixed with ethyl alcohol, with not more than 10%
> alcohol* (NA1203)
>
> Gasoline *includes gasoline mixed with ethyl alcohol, with not more
> than 10% ethyl alcohol* (UN1203) \[both 73 FR 44836\]

The meaning of the assigned Special Provision 177 in relation to these
entries is unclear. The text for the Special Provision states:

> 177 Gasoline or ethanol and gasoline mixtures for use in internal
> combustion engines (e.g., in automobiles, stationary engines and other
> engines) must be assigned to **this entry** regardless of variation in
> volatility. \[73 FR 44844; our emphasis\]

We are unclear how to interpret this special provision. There are two
entries in the Hazardous Materials Table, both specifying the same
percentage of ethyl alcohol The same special provision is assigned to
*both entries* (i.e., plural), which mandates the use of "this entry"
(i.e., singular). We ask that PHMSA revisit the two entries and the
special provision to clarify the intent. We find the distinction between
the NA1203 and UN1203 entries shown in the proposal to be unclear, and
the stipulation contained in Special Provision 177 to use "this" entry
only adds to the confusion.

[Short Circuit Protection]{.underline}

In three places within the regulations, §172.102, Special Provision 130,
and §173.159(a)(2), PHMSA proposes to include examples of short circuit
protection for battery shipments. As proposed for Special Provision 130,
these examples are described as follows:

> \(a\) Packaging each battery or each battery-powered device or
> equipment when practicable in fully enclosed inner packagings made of
> non-conductive material;
>
> \(b\) Separating batteries and battery-powered devices in a manner to
> prevent contact with other batteries, devices or conductive materials
> (e.g., metal) in the packagings; or
>
> \(c\) Ensuring exposed terminals or connectors are individually
> protected with non-conductive caps, non-conductive tape, or by other
> appropriate means . . . . \[73 FR 44843\]

PHMSA uses the same language for the amendments proposed in
§173.159(a)(2).

We support the concrete nature of these examples. It is our experience
that not all shippers adequately protect batteries against short
circuits. The inclusion of these examples will lead to better
understanding of the specific steps required to prevent incidents in
transportation.

Although it may be outside the scope of the current NPRM, we note that
the HMR have several other provisions where similar concrete examples of
short circuit protection would be beneficial, such as §172.102, special
provisions A55, A101, A103, A104, 188, 189, and 190; and §173.185. If
these provisions are outside the scope of the present rulemaking, we
strongly encourage PHMSA to include examples of short circuit protection
in those provisions at the earliest opportunity.

[Cargo Aircraft Only Label]{.underline}

In amendments proposed for §172.448, PHMSA seeks to update the design of
the Cargo Aircraft Only (CAO) label, to keep the HMR consistent with the
ICAO Technical Instructions \[73 FR 44846\]. We support that proposal in
view of the obvious need for global standardization of this label. In
addition, we support the proposal in §172.448(c) to allow the current
CAO label until January 1, 2013. We believe that will provide adequate
time to change label stocks.

[Small Quantity and Excepted Quantity Provisions]{.underline}

In this NPRM, PHMSA proposes to address exceptions for small quantities
of hazardous materials in three sections of the HMR: §173.4, 173.4a, and
173.4b \[73 FR 44847-44848\]. PHMSA proposes amendments to the current
exceptions for Small Quantities (§173.4) to limit them to domestic
highway and rail transportation. This change accommodates the work
completed at international meetings of the UN, ICAO and IMO, to
recognize the new provisions for Excepted Quantities, which are proposed
in a new §173.4a.

We support the move to international harmonization of Excepted
Quantities and applaud PHMSA for its proposal to recognize the new
standard marking in §173.4a.[^8] However, the proposal to limit
shipments prepared under §173.4 to domestic highway and rail brings with
it a significant change for domestic air shipments. According to
transitional arrangements in the proposed §171.14(d), the HMR would
prohibit the air carriage of a package conforming to current Small
Quantity provisions after December 31, 2010 \[73 FR 44826\]. This will
be a very hard transition for air carriers to enforce, as the current
package marking for a Small Quantity shipment (i.e., "This shipment
conforms to 49 CFR 173.4") does not stand out, and therefore cannot
easily be identified and rejected by package handlers. We believe that
as PHMSA proposes making a transition to the use of the new marking for
air shipments of Excepted Quantity packages, there must be recognition
of the extreme difficulty of managing the transition. Because current
provisions of §173.4 create shipments that benefit from tremendous
exceptions, *including training requirements*, such packages will be
very hard to control during and after a transition period. [^9] It is
reasonable to anticipate that shippers will, with justifiable innocence,
ship the commodities in domestic air commerce well beyond the proposed
end of the transition date -- after all the shippers have no training
requirement. Moreover, as a shipment that benefits from air carrier
handling exceptions, such packages will not easily be identified in
high-volume package acceptance and sorting operations -- and PHMSA
cannot rely on a training requirement to drive carriers to find and
reject them.

These factors mean that PHMSA should allow the offering and acceptance
of such shipments in domestic air commerce for an extended period.
Perhaps the best approach is to allow a period of several years for the
shipment of packages filled prior to the effective date of the Final
Rule. It would not be reasonable to penalize either shippers or carriers
for the offering or acceptance in domestic air commerce of shipments
prepared under §173.4. The packages pose no safety hazard, shippers have
no required training to offer them, carriers have no special functions
to perform when accepting and loading them, and PHMSA has no training
requirement for the accepting carriers. Therefore PHMSA should simply
accommodate those packages until they are used up.

In its proposal for §173.4b, PHMSA seeks to create *de minimis*
exceptions, under which very small quantities of certain classes of
materials are excepted from regulation \[73 FR 44848-44849\]. We wish to
note that while we have no safety objection to these provisions, such
packages could be misunderstood as undeclared shipments by carriers
processing damaged or stray shipments offered under these provisions. As
proposed, this new section includes no way to distinguish the shipment
as adhering to the provisions for *de minimis* shipments. Since there is
no prescribed marking for the package, inclusion of a statement in or on
the package, clarifying that the shipment conforms to *de minimis*
exceptions of 49 CFR 173.4b, would alleviate that potential for
misunderstanding by making the information would available in the event
of package damage.[^10]

[Prohibited Materials -- Battery-Powered Devices]{.underline}

In an amendment proposed for §173.21(c), PHMSA proposes to include
"battery-powered devices" as an example of prohibited electrical devices
identified by this provision \[73 FR 44848\]. We support that proposal,
based on the experience caused by battery-powered devices in
transportation that do not have effective measures to prevent electrical
incidents.

[Notification of Pilot-in-Command]{.underline}

PHMSA proposes two changes related to the content of the notification of
pilot-in-command (NOTOC). First is the proposal to eliminate the type of
package from the information required for entries in the NOTOC, as shown
in amendments to 175.33(a)(1)(i):

> Section 172.101 of this subchapter. **Except for the requirement to
> indicate the type of package**, any additional description
> requirements provided in §§172.202, and §172.203 of this subchapter
> must also be shown on the notification. \[73 FR 44860; PHMSA's
> proposed language is shown in **boldface**\]

We support this change, as it agrees with one amendment we sought in a
petition for rulemaking filed in September of 2006 (Petition P-1487). We
note, however, that in our petition we recommended a thorough
rationalization of NOTOC requirements and again commend that work to
PHMSA's attention. [^11] In support of the change, we stress that the
practice identified here is currently permitted by a Special Permit,
DOT-SP 14527. There is no adverse effect on safety.

A second proposal to change the content of the NOTOC addresses the
presentation of shipment details for Dry Ice. Rather than requiring
individual shipment detail for this commodity, PHMSA seeks to align with
the requirements of the 2009-2010 ICAO Technical Instructions by
proposing an additional 175.33(a)(11) that would allow a NOTOC to show
the aggregate amount of dry ice in an aircraft loading position:

> For UN1845, Carbon dioxide, solid (dry ice), only the UN number,
> proper shipping name, hazard class, total quantity, exact location
> aboard the aircraft, and the airport at which the package(s) is to be
> unloaded must be provided. \[73 FR 44860\]

In general, we support this change, as it will streamline the contents
of the NOTOC without adversely affecting safety. In fact we believe it
has the potential to enhance the value of the NOTOC when numerous small
dry ice shipments are loaded on a flight, because numerous repetitive
entries will not crowd the document. As with the proposed deletion of
the packaging type, this proposed amendment is in harmony with an
existing special permit DOT SP-12378, showing that PHMSA has already
recognized this as a matter than can be implemented without a negative
effect on safety.

However, we believe it is important to point out that PHMSA has made a
significant change from the ICAO approach to this revision, and the
difference will create unnecessary conflict between the HMR and ICAO
standards. ICAO has determined to allow the dry ice information to be
aggregated for *each hold* in an aircraft, not just the loading
position. Since a hold would encompass several loading positions, the
difference between the proposal here and the provision adopted in the
ICAO Technical Instructions is substantial. To achieve consistency with
ICAO, we believe the proposed text should be amended as follows:

> For UN1845, Carbon dioxide, solid (dry ice), only the UN number,
> proper shipping name, hazard class, total quantity [in each hold on
> the aircraft,]{.underline} ~~exact location aboard the aircraft,~~ and
> the airport at which the package(s) is to be unloaded must be
> provided. \[Our suggested new language is shown is
> [underlined]{.underline}\][^12]

The changes we show here will allow the NOTOC requirements for both the
HMR and ICAO to address dry ice in the same way.

[Loading of Cargo Aircraft Only Shipments]{.underline}

To align with changes undertaken for the 2009-2010 ICAO Technical
Instructions, PHMSA proposes to introduce a change to the loading
requirements for Cargo Aircraft Only (CAO) shipments. New language,
proposed for §175.75(d)(2), would allow the use of "a cargo compartment
that has an FAA-approved fire or smoke detection system and a
fire-suppression system" in addition to the current requirement for
loading CAO shipments in a location accessible to the crew in flight
\[73 FR 44860\].

Global consistency in matters such as aircraft loading is essential. We
support the idea behind this change, especially in view of the high
number of two-seat cockpits in aircraft operating today. However PHMSA
has again proposed language that is inconsistent with ICAO. In the
Technical Instructions, the new provision will refer specifically to
Class C compartments. For this reason, we suggest the following
amendment:

> \(d\) Each package containing a hazardous material acceptable only for
> cargo aircraft must be:
>
> \(1\) Loaded in such a manner that a crew member or other authorized
> person can access, handle and when size and weight permit, separate
> such packages from other cargo during flight; or
>
> \(2\) Loaded in a cargo compartment that [is classified in Federal
> Aviation Regulations as a Class C cargo compartment]{.underline} ~~has
> an FAA-approved fire or smoke detection system and a fire-suppression
> system~~.[^13]

Again, we believe that variation from the ICAO language will create
inconsistencies with the HMR that could be difficult. Aircraft loaded in
accordance with the proposed language, dependent on an FAA-approved fire
suppression system that is not identical to a Class C compartment, would
not be in compliance with ICAO requirements, thereby frustrating the
global consistency sought through the Technical Instructions.

We believe there is another change related to the ICAO amendment that is
needed in the HMR, which PHMSA may have overlooked in developing the
proposal here. This change relates to the loading of packages eligible
for carriage aboard passenger aircraft (referred to from here on as "PAX
shipments"). Unlike the ICAO Technical Instructions, the HMR place a
limit on the amount of PAX shipments that are allowed to be loaded in
inaccessible cargo compartments, or within closed ULDs in an otherwise
accessible cargo compartment. These are the 25 kg and 75 kg limits
identified in the existing §175.75(c):

> For each package containing a hazardous material acceptable for
> carriage aboard passenger-carrying aircraft, no more than 25 kg (55
> pounds) net weight of hazardous material may be loaded in an
> inaccessible manner. Loaded in an inaccessible manner means cargo that
> is loaded in such a manner that a crew member or other authorized
> person cannot handle, and when size and weight permit, separate such
> packages from other cargo during flight. This includes materials
> loaded in a freight container in an accessible cargo compartment. In
> addition to the 25 kg limitation above, an additional 75 kg (165
> pounds) net weight of Division 2.2 (non-flammable compressed gas) may
> be loaded in an inaccessible manner. These requirements do not apply
> to Class 9 and ORM-D materials.

As a result of this section, an operator of a cargo aircraft must not
exceed these limitations for PAX shipments in an inaccessible cargo
compartment. However, in light of the changes proposed for loading CAO
shipments, the unlimited loading of PAX shipments in Class C cargo
compartments seems both reasonable and justified. We believe that
because ICAO applies no limit to PAX shipments on any type of aircraft,
it is quite possible that PHMSA simply overlooked this dimension of the
loading regulations when reviewing the ICAO amendments applicable to CAO
shipments. Therefore, we suggest that §175.75(c) be amended as follows:

> For each package containing a hazardous material acceptable for
> carriage aboard passenger-carrying aircraft, no more than 25 kg (55
> pounds) net weight of hazardous material may be loaded in an
> inaccessible manner. Loaded in an inaccessible manner means cargo that
> is loaded in such a manner that a crew member or other authorized
> person cannot handle, and when size and weight permit, separate such
> packages from other cargo during flight. This includes materials
> loaded in a freight container in an accessible cargo compartment. In
> addition to the 25 kg limitation above, an additional 75 kg (165
> pounds) net weight of Division 2.2 (non-flammable compressed gas) may
> be loaded in an inaccessible manner. These requirements do not apply
> to Class 9 and ORM-D materials [or packages loaded into a compartment
> or freight container on a cargo aircraft only that meets the
> requirements of a Class C cargo compartment]{.underline}.

With this change, PHMSA would allow both CAO and PAX shipments to be
carried in the inaccessible positions that would be authorized by ICAO.
Our point in making this recommendation is that if unlimited loading of
CAO shipments is justified in Class C compartments, then such a practice
certainly should be justified for PAX shipments. After all, packages of
PAX shipments usually contain lower quantities of material in packagings
of higher integrity than CAO shipments. If PHMSA elects to make this
change, then there will need to be corresponding adjustments to the
table accompanying §175.75.[^14]

[Conclusion]{.underline}

UPS appreciates the opportunity to comment on this rulemaking and asks
that PHMSA take note of our concerns related to the use of the air
waybill proposed in this NPRM. We do not believe PHMSA will enhance
safety in its proposed use of statements on air waybills and ask the
agency to assess the implications of creating requirements for a
document that does not have any previous status in its regulations. As
companies seek increased efficiencies through alternatives to paper
documentation, a requirement associated with an air waybill becomes less
likely to accomplish any communication and indeed more likely to become
a subject of needless enforcement discussions.

As we have stated above, we believe PHMSA needs to be very careful with
any supplemental documentation requirements, since such proposals may
create unreasonable expectations about the ability of employees'
abilities to review those documents as they handle many hundreds of
packages each day. Markings or notices do serve useful functions when
questions arise about excepted shipments -- allowing responders to
determine that safety measures may be required or to understand the
provisions allowing a shipment to move as prepared. But we do not
support any implication that such statements become conditions of
acceptance; there are simply too many packages moving in commerce for
every one that benefits from an exception to be usefully scrutinized.

Regarding changes to the NOTOC and the loading provisions for Cargo
Aircraft Only shipments, we urge PHMSA to reexamine the language in the
ICAO Technical Instructions. Lack of consistency between the HMR and
ICAO could be very detrimental to global operations, and PHMSA's
proposals do not align with the agreed ICAO text. We believe that
amendments that more closely align with ICAO text would eliminate the
possibility of the HMR producing results that are at odds with the ICAO
requirements.

Finally, with respect to amendments directed at batteries, while we do
not agree with the inclusion of a specific battery-related condition as
a trigger for a telephone report to the National Response Center, we do
support the specific language about short circuit protection that PHMSA
has proposed in this rulemaking and encourage its inclusion in other
appropriate provisions within the HMR.

[^1]: UPS picks up 15.8 million small packages and documents, daily,
    including 2.3 million air packages and documents. UPS serves 1.8
    million regular pick-up customers. In addition, UPS operates the
    ninth largest airline in the world, with 268 aircraft, and maintains
    a motor vehicle fleet that includes over 93,000 vehicles servicing
    its small package operations. UPS LTL freight operations within the
    U.S. are serviced by over 3,000 tractors and almost 22,000 trailers.
    UPS's global logistics, air and ocean freight services operate in
    over 120 countries.

[^2]: Because UPS small package operations handle millions of shipments
    each day, we have developed efficient methods for our customers to
    prepare shipments -- not involving bills of lading. Therefore, for
    shipments that are not governed by the HMR, we have no independent
    description of the materials involved.

[^3]: The NRC notification requirement mandates that notification be
    made "as soon as practical but no later than 12 hours after the
    occurrence of any incident in paragraph (b)" of §171.15.
    Post-incident determinations about the involvement of batteries
    would not likely be completed within that time.

[^4]: This passing reference is in a discussion of the date of a
    shipment, in §175.33(c)(1), and this reference, identifying the
    document as an *air bill*, not an *air waybill*, simply uses the
    document as an example of a source of the date information: "The
    date on the shipping paper may be the date a shipper notifies the
    air carrier that a shipment is ready for transportation, as
    indicated on the air bill or bill of lading, as an alternative to
    the date the shipment is picked up or accepted by the carrier."

[^5]: UPS small package services rely on UPS published Tariff and
    Service Guides to address conditions of carriage, and use
    information encoded into the address label to accomplish the
    required package routing. Other UPS services, however, do utilize
    air waybills. For example, UPS air freight and air cargo customers
    are required to generate air waybills. The point is that use of an
    air waybill is dependent on factors that are independent of the HMR.

[^6]: The emphasis is ours. See page 2A-59 of the report of ICAO DGP/21
    for the specific addition to ICAO's Special Provisions A123. Other
    Special Provisions that have adopted the same conditional phrasing
    about "when an air waybill is used" include: A32, A69, A70, A93,
    A98, and A152. See DGP/21 report, pages 2A-51 through 2A-62.

[^7]: We find it important that the ICAO Dangerous Goods Panel
    understands this point. DGP members took note of the fact that while
    the Technical Instructions require an air waybill or other document
    with safety information about lithium batteries, they did not expect
    that a carrier would be required to check for that document. See
    report of ICAO DGP/21, page 5-16, paragraph 5.4.3.13: "It was
    confirmed that operators would not be expected to verify information
    pertaining to lithium metal batteries meeting the requirements of
    special provision A45."

[^8]: We note with interest that, in contrast to the provisions cited
    above in relation to battery exceptions, apparatus containing
    Gallium or Mercury, airbag modules, in which PHMSA proposes the
    mandatory use of an air waybill statement at all times,
    §173.4a(h)(1) specifies that "if a document such as an air waybill
    accompanies the shipment, the document must include the statement
    'Dangerous Goods in Excepted Quantities' and indicate the number of
    packages" \[73 FR 44848\]. We support the conditional use of this
    air waybill requirement, but wish to point out that PHMSA should
    recognize that for systems such as the UPS small package service, a
    marking alone will suffice to communicate to carrier personnel.

[^9]: In §173.4(a), PHMSA clearly excepts shipments conducted under this
    section from "any other requirements of this subchapter" when all
    conditions of this section have been satisfied. There is no training
    requirement in the section, so PHMSA cannot rely on any implied or
    expected training of either shipper or carrier to prevent the
    shipments from moving outside of highway and rail commerce.

[^10]: We are *not* recommending the use of a statement on an air
    waybill. However, old provisions for radioactive materials, excepted
    packages, in §173.421 allowed the information that the shipment was
    a limited quantity of material, etc., to be included on or in the
    package. A similar approach would inform a responder processing a
    damaged shipment of *de minimis* material.

[^11]: See Petition P-1487, from UPS to PHMSA, dated September 29, 2006.

[^12]: See ICAO DGP/21 report, page 2A-129, in which amendments for
    4.1.2 state that "For UN 1845, Carbon dioxide, solid (dry ice), only
    the UN number, proper shipping name, class, total quantity in each
    hold on the aircraft and the aerodrome at which the package(s) is to
    be unloaded need be provided."

[^13]: On page 5A-1 of the report of ICAO DGP/21, the text used for this
    requirement makes specific reference to a "Class C cargo
    compartment."

[^14]: Our comment here is limited to cargo aircraft operations because
    we do not to presume to speak for operators of passenger aircraft on
    this matter. We would not object to removing the quantity limits on
    PAX shipments loaded aboard passenger aircraft in Class C
    compartments, if PHMSA judged that to be justified.