22504 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Air pollution control, Environmental 

protection, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, New source 

review, Reporting and recordkeeping 

requirements. 

Dated: March 30, 2012. 

Karl Brooks, 

Regional Administrator, Region 7. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42.U.S.C. 7401 et seq. 

Subpart AA—Missouri 

■ 2. Section 52.1320(c) is amended by 

revising the entries for 10 CSR 10–6.060 

(Construction Permits Required) and 10 

CSR 10–6.410 (Emissions Banking and 

Trading) to read as follows: 

§ 52.1320 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSOURI REGULATIONS

Missouri citation Title State effective date EPA approval 

date Explanation 

Missouri Department of Natural Resources 

*******

Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of 

Missouri 

*******

10–6.060 ....... Construction Permits Required.8/30/11 4/16/12 [insert FR 

page number 

where the document begins].

This revision incorporates by reference elements of EPA’s NSR reform 

rule published December 31, 2002. Provisions of the incorporated reform rule relating to the Clean Unit Exemption, Pollution Control 

Projects, and exemption from recordkeeping provisions for certain 

sources using the actual-to-projected-actual emissions projections test 

are not SIP approved. In addition, we are not approving Missouri’s 

rule incorporating EPA’s 2007 revision of the definition of ‘‘chemical 

processing plants’’ (the ‘‘Ethanol Rule,’’ 72 FR 24060 (May 1, 2007) 

or EPA’s 2008 ‘‘fugitive emissions rule,’’ 73 FR 77882 (December 19, 

2008). 

Otherwise, this revision also incorporates by reference the other provisions of 40 CFR 52.21 as in effect on August 2, 2010, which supersedes any conflicting provisions in the Missouri rule. Section 9, pertaining to hazardous air pollutants, is not SIP approved. 

10–6.410 ....... Emissions Banking and Trading.7/30/09 4/16/12 [insert FR 

page number 

where the document begins].

* * * * * * * 

§ 52.1323 [Amended] 

■ 3. Section 52.1323 is amended by 

removing and reserving paragraph (n). 

[FR Doc. 2012–8920 Filed 4–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Part 173 

[Docket No. PHMSA–07–29364 (HM–231A)] 

RIN 2137–AE32 

Hazardous Materials; Packages 

Intended for Transport by Aircraft 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Final rule. 

SUMMARY: PHMSA is amending the 

Hazardous Materials Regulations to 

require closures of inner packagings 

containing liquids within a combination 

packaging intended for transportation 

by aircraft to be secured by a secondary 

means or, where a secondary closure 

cannot be applied or it is impracticable 

to apply, permit the use of a leakproof 

liner. These amendments are consistent 

with the 2011–2012 edition of the 

International Civil Aviation 

Organization Technical Instructions for 

the Safe Transport of Dangerous Goods 

by Air (ICAO Technical Instructions). 

DATES: Effective Date: This rule is 

effective July 1, 2012. 

Voluntary Compliance Date: 

Voluntary compliance with all 

amendments are authorized May 16, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Michael G. Stevens, Standards and 

Rulemaking Division, Pipeline and 

Hazardous Materials Safety 

Administration, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE., Washington, DC 20590– 

0001, telephone (202) 366–8553, or 

Janet McLaughlin, Office of Security 

and Hazardous Materials Safety, Federal 

Aviation Administration, U.S. 

Department of Transportation, 490 

L’Enfant Plaza SW., Suite 8100, 

Washington, DC 20024, telephone (202) 

385–4897. 

SUPPLEMENTARY INFORMATION: 

Contents 

I. Executive Summary 

II. Background 

A. Current Requirements in the HMR 

B. Summary of Proposals in NPRM 


emcdonald on DSK29S0YB1PROD with RULES
Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 22505 

1. Incorporation of Revised ICAO 

Technical Instructions Packaging 

Provisions 

2. Testing Requirements To Simulate 

Packages in the Air Transport 

Environment 

III. Discussion and Resolution of Comments 

Submitted in Response to NPRM 

A. Secondary Means of Closure 

B. Pressure Differential Testing 

C. Conclusion 

IV. Regulatory Analyses and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

B. Executive Orders 12866 and 13563 and 

DOT Regulatory Policies and Procedures 

C. Executive Order 13132 

D. Executive Order 13175 

E. Regulatory Flexibility Act, Executive 

Order 13272, and DOT Regulatory 

Policies and Procedures 

F. Unfunded Mandates Reform Act 

G. Paperwork Reduction Act 

H. Regulatory Identifier Number (RIN) 

I. Environmental Assessment 

J. Privacy Act 

I. Executive Summary 

In this final rule, PHMSA is adopting 

the requirement that, when transported 

by air, the closure of an inner packaging 

containing a liquid hazardous material 

must be secured by a secondary means 

of closure. A Packing Group I liquid 

must be further packaged in a rigid 

leakproof receptacle or rigid 

intermediate packaging containing 

sufficient absorbent material to absorb 

the entire contents of the inner 

packaging, before being placed in its 

outer package. For liquids assigned to 

Packing Groups II or III, however, a 

leakproof liner may be used where a 

secondary closure cannot be applied or 

it is impracticable to apply. These 

amendments are consistent with the 

reformatted packing instructions in the 

2011–2012 edition of the International 

Civil Aviation Organization’s Technical 

Instructions for the Safe Transport of 

Dangerous Goods by Air (ICAO 

Technical Instructions). Because most 

shippers already prepare shipments in 

accordance with the ICAO Technical 

Instructions, as a result, no new costs or 

benefits are anticipated. 

During the rulemaking process, 

PHMSA, in consultation with the FAA, 

considered four possible alternatives to 

strengthen packaging requirements for 

air shipments of liquid hazardous 

materials: 

Alternative 1: Harmonize with the 

2011–2012 edition of the ICAO 

Technical Instructions by requiring that 

friction and screw type closures (i.e., all 

closure types) of inner packagings 

intended to contain liquids as part of a 

combination packaging be secured by a 

secondary means of closure. Under this 

alternative, we would adopt packaging 

amendments included in the 2011–2012 

edition of the ICAO Technical 

Instructions that require friction and 

screw type closures of inner packagings 

intended to contain liquids as part of a 

combination packaging to be secured by 

a secondary means of closure. For 

liquids assigned to Packing Groups II or 

III, a leakproof liner could be used to 

satisfy the secondary closure 

requirement where it could not be 

applied or would be impracticable to 

apply. For liquids of Packing Group I, a 

secondary means of closure, absorbent 

material and a leakproof liner would be 

required. Alternative 1 would address 

most of the safety issues associated with 

the transportation of liquid hazardous 

materials by preventing releases or 

containing releases that do occur within 

the packaging. It does not address 

problems associated with the current 

pressure differential capability standard. 

Alternative 2: Require enhanced 

pressure differential capability 

requirements on all inner packagings 

intended to contain liquids as part of a 

combination packaging. Current rules 

require that all packages transported by 

air and for which retention of liquids is 

a basic function must be capable of 

withstanding, without leakage, a certain 

pressure differential, which is usually 

95 kilopascals (kPa) (§ 173.27[c]). This 

integrity standard applies to both 

specification and non-specification 

packaging. Under this alternative, 

PHMSA would require packaging 

manufacturers to conduct testing to 

confirm that a combination packaging 

intended for the air transportation of 

liquid hazardous materials is capable of 

withstanding the pressures encountered 

on board aircraft and to maintain a 

documented record of the test results. 

Alternative 3: Adopt the provisions in 

both Alternatives 1 and 2. Under this 

alternative, PHMSA would adopt the 

new and revised regulatory provisions 

summarized in the discussion of 

Alternatives 1 and 2 above. 

Alternative 4: Do nothing. Under this 

alternative, the current domestic 

regulatory scheme applicable to air 

shipment of hazardous liquids would 

continue in place and the U.S. standards 

would not be harmonized with the 

international community. Because most 

countries and international air carrier 

organizations have already adopted the 

changes in this rulemaking, a donothing approach could result in 

complications in the movement of these 

materials and the U.S. will not meet its 

obligations outlined in the Convention 

on International Civil Aviation—also 

known as the Chicago Convention. 

Future inconsistencies with 

international transport standards may 

result in foreign authorities refusing to 

accept hazardous material shipments 

prepared in accordance with the HMR. 

To successfully participate in 

international markets, U.S. companies 

would be required to conform to dual 

regulations. Inconsistent domestic and 

international regulations can also have 

an adverse safety impact by making it 

more difficult for shippers and carriers 

to understand and comply with all 

applicable requirements. 

II. Background 

A. Current Requirements in the HMR 

Currently under the HMR, stoppers, 

corks, or other such friction-type 

closures must be held securely, tightly, 

and effectively in place by positive 

means. See § 173.27(d). However, a 

screw-type closure on any packaging 

must only be secured to prevent the 

closure from loosening due to ‘‘vibration 

or substantial change in temperature.’’ 

We have stated in letters of clarification 

that a secured closure should 

incorporate a secondary means of 

maintaining a seal, such as a shrinkwrap band or heat-sealed liner. 

Additionally, laboratory studies 

conducted on behalf of PHMSA and 

FAA concluded that a simple 

application of tape on a screw-type 

closure prevented ‘‘back-off’’ under 

even extreme conditions. 

B. Summary of Proposals in NPRM 

1. Incorporation of Certain ICAO 

Technical Instructions Reformatted 

Packing Provisions 

In the May 14, 2010 [75 FR 27273] 

NPRM, we proposed to amend the HMR 

by adopting certain packaging 

provisions that were inclusive of what 

was adopted in the 2011–2012 ICAO 

Technical Instructions. We proposed to 

amend § 173.27(d) by requiring that all 

friction and screw type closures must be 

secured by a secondary means. A 

Packing Group I liquid would also be 

required to be further packaged in a 

rigid, leakproof receptacle or 

intermediate packaging containing 

sufficient absorbent material to absorb 

the entire contents of the inner 

packaging. We also proposed that, for 

liquids assigned to Packing Groups II or 

III, a leakproof liner or bag may be used 

to satisfy the secondary closure 

requirement where it could not be 

applied or it would be impracticable to 

apply. Additionally, we noted: 

› A liner or secondary means of 

positive closure should not affect an 

existing UN standard packaging design 

because it would not ordinarily be 

considered a new design type. 


emcdonald on DSK29S0YB1PROD with RULES
22506 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 

› Liners typically must be manually 

inserted into a packaging before filling. 

Because most packaging systems can be 

automated or are already automated 

with some form of secondary closure 

being applied, costs and regulatory 

burden to shippers should be minimal. 

› The HMR and ICAO Technical 

Instructions already require a leakproof 

receptacle for most Packing Group I 

liquids through special provisions and 

packing instructions, respectively. 

Lastly, because organic peroxide 

liquids are no longer required to be 

packaged with absorbent material under 

the newly reformatted packing 

instructions of the ICAO Technical 

Instructions, we proposed to remove the 

reference to Division 5.2 materials from 

the § 173.27(e) introductory text. 

2. Testing Requirements To Simulate 

Packages in the Air Transport 

Environment 

In the May 14, 2010 [75 FR 27273] 

NPRM, we also proposed to establish 

new testing standards for packaging, 

relative to pressure differential 

requirements in §§ 173.27(c) and 

178.605. Some of the recommended test 

methods proposed were intended to 

provide an equivalent alternative to 

current HMR test requirements, and 

ultimately reduce the overall failure rate 

of packages by ensuring packaging 

capable of withstanding the pressure 

differentials and vibrations encountered 

in air transport. 

Current HMR test requirements for air 

transport packaging are based on a 50- 

year old regulatory regime. Compared to 

the air transportation environment 50 

years ago, today’s air cargo 

transportation environment has become 

more automated, relies on a more 

complex cargo feeder system, and 

utilizes aircraft traveling longer 

distances without suitable airports to 

land in the event of an emergency. 

For these reasons, DOT will continue 

with its comprehensive review of air 

packaging standards as appropriate. In 

this review, data will be collected on the 

pressure differential, vibration, ground 

handling characteristics, temperature 

fluctuations, and other environmental 

characteristics typically experienced by 

packages in air transport. This data will 

also be analyzed to describe the 

cumulative impact that today’s 

operational environment may have on 

packaging systems. As a result, DOT 

will assess whether such review merits 

further action. 

III. Discussion and Resolution of 

Comments Submitted in Response to 

NPRM 

In response to the NPRM, we received 

comments from the following: 

1. Dangerous Goods Advisory Council 

(DGAC) 

2. Council on Safe Transportation of 

Hazardous Materials Articles, Inc. 

(COSTHA) 

3. Association of Hazmat Shippers, Inc. 

(AHS) 

4. Laboratory Corporation of America 

(LabCorp) 

5. Saf-T-Pak 

6. Air Line Pilots Association, International 

(ALPA) 

7. High Q Testing, LLC 

8. Lonnie Jaycox 

9. European Chemistry Industry Council 

(CEFIC) 

A. Secondary Means of Closure 

Three major trade associations 

(COSTHA, DGAC and AHS) who 

commented support the amendments 

proposed in the NPRM primarily due to 

their alignment with the ICAO 

Technical Instructions and the minimal 

economic and regulatory burden placed 

on their members. The bulk of their 

membership, however, appears to 

consist of large companies who most 

likely already comply with some or all 

of the proposals made in the NPRM. 

Additionally, these trade associations 

request that PHMSA, at the earliest 

possible date, bring any regulatory 

differences to the international 

standards bodies’ attention to ensure a 

level playing field exists among 

domestic and international shippers and 

carriers. We will continue to propose 

international alignment with the HMR 

to the ICAO Dangerous Goods Panel 

when appropriate. 

COSTHA, DGAC and AHS request 

that PHMSA consider automated 

closure systems as an acceptable 

alternative to applying a secondary 

means of closure to an inner packaging 

with a screw-type closure. In their 

comments, they assert because modern 

automated closure systems provide a 

consistent level of integrity, the time it 

takes to individually apply another 

means of closure (e.g., tape) is not 

economically viable when compared to 

simply using some form of secondary 

containment such as a leakproof liner. 

LabCorp also opposes the secondary 

means of closure requirement as it 

would be manually accomplished—a 

major burden. LabCorp and the two 

DOT-approved testing laboratories (High 

Q Testing, LLC and Lonnie Jaycox) 

request that PHMSA allow the use of a 

leakproof liner to satisfy the 

‘‘impractical’’ secondary means of 

closure requirement proposed in the 

NPRM. 

In response to comments submitted 

by LabCorp and the two DOT-approved 

testing laboratories (High Q Testing, 

LLC and Lonnie Jaycox), in the final 

rule, we are doing so and providing that 

for liquids of Packing Groups II and III, 

the use of a leakproof liner, bag or other 

form of secondary containment will 

satisfy the secondary means of closure 

requirement. However, Packing Group I 

liquids on passenger-carrying and cargocarrying aircraft must be contained in an 

inner packaging with a secondary means 

of closure applied that is further 

packaged in a rigid leakproof receptacle 

or intermediate packaging containing 

sufficient absorbent material to absorb 

the entire contents of the inner 

packaging before being placed in its 

outer package. This requirement is 

consistent with current air-related 

§ 172.102 Special provisions in the 

HMR (A3, A6), and Packing Instructions 

360 and 361 in the ICAO Technical 

Instructions. Unless otherwise specified 

through a § 172.102 Special provision, 

absorbent material is not required for 

liquids of Packing Groups II and III. It 

should be noted, however, that although 

not required under these provisions, 

absorbent material would remain a 

requirement if included as part of an 

assembled package during design testing 

and is also permitted as an additional 

mitigation procedure if desired. 

We accept the suggestions to 

‘‘improve’’ upon the proposed 

amendments in the NPRM by allowing 

certain closures of high integrity (e.g., 

acid cap) to meet the secondary means 

of closure requirements of this final 

rule. The methods indicated in 

proposed § 173.27(d) are some examples 

of ways in which to satisfy the closure 

requirements and are not intended to be 

all-inclusive. We do not accept, 

however, the recommendations that 

successful pressure differential testing 

itself should satisfy the secondary 

means of closure or liner requirement. 

Some commenters state it would not be 

needed (and is overly redundant) if a 

packaging successfully meets the 

performance standard for pressure 

differential capability as proposed in the 

NPRM. We disagree and contend that 

the air transport environment is unique 

in that a certain amount of redundancy 

is necessary to maintain or enhance the 

safe transportation of hazardous 

materials. 

B. Pressure Differential Testing 

PHMSA received comments on the 

pressure differential testing aspects of 

the NPRM from Saf-T-Pak, AHS, and 

CEFIC. Saf-T-Pak supports the proposals 


emcdonald on DSK29S0YB1PROD with RULES
Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 22507 

in the NPRM to require pressure 

differential testing and requests that 

PHMSA: (1) Allow any acceptable test 

method that achieves the proposed goal 

of the rule; (2) require similar testing 

requirements for biological substances 

in § 173.199 as proposed in § 173.27; 

and (3) lower the duration for flexible 

packagings used primarily in medical 

and pharmaceutical industries. AHS 

requests that PHMSA allow reduced 

pressure differential capability (75 kPa) 

for all consumer commodities in the 

ORM–D–AIR hazard class. CEFIC 

represents national chemical federations 

and chemical companies in Europe. In 

its comments, CEFIC states that it 

supports global harmonization of 

hazardous materials transport standards 

and regulations, but actual testing of 

packagings to verify pressure 

differential capability as proposed in the 

NPRM is inconsistent with the ICAO 

Technical Instructions. As a result, 

PHMSA has elected to not adopt the 

pressure differential proposals 

published in the NPRM at this time. 

DOT will continue to assess the 

pressure differential and vibration test 

proposals published in the NPRM in a 

broader context once additional data has 

been collected and considered. 

C. Conclusion 

In this rulemaking action, PHMSA is 

adopting, consistent with packaging 

amendments made to the 2011–2012 

edition of the ICAO Technical 

Instructions, the requirement that 

closures of inner packagings be secured 

by a secondary means of closure. The 

effective date of the amendments 

adopted in this final rule is July 1, 2012. 

This delayed compliance date will assist 

shippers in assessing their packaging 

stock for integrity and is consistent with 

amendments recently adopted under 

Docket HM–215K (76 FR 3308, January 

19, 2011) that align the HMR with 

certain amendments adopted in the 

2011–2012 ICAO Technical 

Instructions. 

This final rule adopts the 

requirements that friction and screw 

type closures (i.e., all closures) of inner 

packagings intended to contain liquids, 

as part of a combination packaging, 

must be secured by a secondary means 

of closure. For liquids assigned to 

Packing Groups II or III, a leakproof 

liner may be used to satisfy the 

secondary closure requirement where it 

cannot be applied or it is impracticable 

to apply. For liquids of Packing Group 

I, a secondary means of closure, 

absorbent material, and a rigid and 

leakproof receptacle or intermediate 

packaging is required. We believe the 

amendments adopted in this final rule 

will achieve our objective of prescribing 

a cost-effective systems approach to 

aviation safety that provides 

redundancy where necessary and 

promotes compliance. 

PHMSA and FAA will continue to 

focus on enforcement of the current air 

packaging requirements. We will also 

build on our efforts to better understand 

and characterize the environmental 

conditions that packages are subjected 

to in today’s air transport system. 

IV. Rulemaking Analysis and Notices 

A. Statutory/Legal Authority for This 

Rulemaking 

This final rule is published under 

authority of Federal hazardous materials 

transportation law (Federal hazmat law; 

49 U.S.C. 5101 et seq.) Section 5103(b) 

of Federal hazmat law requires the 

Secretary of Transportation to prescribe 

regulations for the safe transportation, 

including security, of hazardous 

materials in intrastate, interstate, and 

foreign commerce. 

B. Executive Orders 12866 and 13563 

and DOT Regulatory Policies and 

Procedures 

This notice 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 

notice is not considered a significant 

rule under the Regulatory Policies and 

Procedures of the Department of 

Transportation (44 FR 11034). 

Additionally, E.O. 13563 supplements 

and reaffirms E.O. 12866, stressing that, 

to the extent permitted by law, an 

agency rulemaking action must be based 

on benefits that justify its costs, impose 

the least burden, consider cumulative 

burdens, maximize benefits, use 

performance objectives, and assess 

available alternatives. 

During the rulemaking process, 

PHMSA, in consultation with the FAA, 

considered four possible alternatives to 

strengthen packaging requirements for 

air shipments of liquid hazardous 

materials: 

Alternative 1: Harmonize with the 

2011–2012 edition of the ICAO 

Technical Instructions by requiring that 

friction and screw type closures (i.e., all 

closure types) of inner packagings 

intended to contain liquids as part of a 

combination packaging be secured by a 

secondary means of closure. Under this 

alternative, we would adopt packaging 

amendments included in the 2011–2012 

edition of the ICAO Technical 

Instructions that require friction and 

screw type closures of inner packagings 

intended to contain liquids as part of a 

combination packaging to be secured by 

a secondary means of closure. For 

liquids assigned to Packing Groups II or 

III, a leakproof liner could be used to 

satisfy the secondary closure 

requirement where it could not be 

applied or would be impracticable to 

apply. For liquids of Packing Group I, a 

secondary means of closure, absorbent 

material and a rigid leakproof receptacle 

or intermediate packaging would be 

required. Alternative 1 would address 

most of the safety issues associated with 

the transportation of liquid hazardous 

materials by preventing releases or 

containing releases that do occur within 

the packaging. It does not address 

problems associated with the current 

pressure differential capability standard. 

Alternative 2: Require enhanced 

pressure differential capability 

requirements on all inner packagings 

intended to contain liquids as part of a 

combination packaging. Current rules 

require that all packages transported by 

air and for which retention of liquids is 

a basic function must be capable of 

withstanding, without leakage, a certain 

pressure differential, which is usually 

95 kilopascals (kPa) (§ 173.27[c]). This 

integrity standard applies to both 

specification and non-specification 

packaging. Under this alternative, 

PHMSA would require packaging 

manufacturers to conduct testing to 

confirm that a combination packaging 

intended for the air transportation of 

liquid hazardous materials is capable of 

withstanding the pressures encountered 

on board aircraft and to maintain a 

documented record of the test results. 

Alternative 3: Adopt the provisions in 

both Alternatives 1 and 2. Under this 

alternative, PHMSA would adopt the 

new and revised regulatory provisions 

summarized in the discussion of 

Alternatives 1 and 2 above. 

Alternative 4: Do nothing. Under this 

alternative, the current domestic 

regulatory scheme applicable to air 

shipment of hazardous liquids would 

continue in place and the U.S. standards 

would not be harmonized with the 

international community. Because most 

countries and international air carrier 

organizations have already adopted the 

changes in this rulemaking, a donothing approach could result in 

complications in the movement of these 

materials and the U.S. will not meet its 

obligations outlined in the Convention 

on International Civil Aviation—also 

known as the Chicago Convention. 

Future inconsistencies with 

international transport standards may 

result in foreign authorities refusing to 

accept hazardous material shipments 

prepared in accordance with the HMR. 

To successfully participate in 


emcdonald on DSK29S0YB1PROD with RULES
22508 Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 

international markets, U.S. companies 

would be required to conform to dual 

regulations. Inconsistent domestic and 

international regulations can also have 

an adverse safety impact by making it 

more difficult for shippers and carriers 

to understand and comply with all 

applicable requirements. 

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 with 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– 

5127, contains an express preemption 

provision (49 U.S.C. 5125(b)) 

preempting 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 covered 

subject items (2) and (5) described above 

and preempts State, local, and Indian 

tribe requirements not meeting the 

‘‘substantively the same’’ standard. 

Federal hazardous materials 

transportation law provides at 49 U.S.C. 

5125(b)(2) that, 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. 

The effective date of Federal preemption 

of this final rule will be 90 days from 

publication 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 proposed regulations and assess 

their impact on small businesses and 

other small entities to determine 

whether the proposed rule is expected 

to have a significant impact on a 

substantial number of small entities. A 

regulatory evaluation for this final rule, 

which includes a detailed small 

business impact analysis, is in the 

public docket for this rulemaking. Based 

on the analysis in the public docket, I 

certify that the requirements adopted in 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

This final rule has been developed in 

accordance with Executive Order 13272 

(‘‘Proper Consideration of Small Entities 

in Agency Rulemaking’’) and DOT’s 

procedures and policies to promote 

compliance with the Regulatory 

Flexibility Act to ensure potential 

impacts of draft rules on small entities 

are properly considered. 

F. Unfunded Mandates Reform Act of 

1995 

This final rule does not impose 

unfunded mandates under the 

Unfunded Mandates Reform Act of 

1995. It will not result in costs of $141.3 

million or more, in the aggregate, to any 

of the following: State, local, or Native 

American tribal governments, or the 

private sector. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, no person is required to 

respond to an information collection 

unless it has been approved by OMB 

and displays a valid OMB control 

number. Section 1320.8(d), title 5, Code 

of Federal Regulations requires that 

PHMSA provide interested members of 

the public and affected agencies an 

opportunity to comment on information 

and recordkeeping requests. This final 

rule does not identify a new or revised 

information collection request that 

PHMSA will be required to submit to 

OMB for approval. 

H. Environmental Assessment 

The National Environmental Policy 

Act (NEPA), §§ 4321–4375, requires 

Federal Agencies to analyze regulatory 

actions to determine whether the action 

will have a significant impact on the 

human environment. The Council on 

Environmental Quality (CEQ) 

regulations require Federal Agencies to 

conduct an environmental review 

considering (1) the need for the action, 

(2) alternatives to the action, (3) 

environmental impacts of the action and 

alternatives, and (4) the agencies and 

persons consulted during the 

consideration process. 40 CFR 

1508.9(b). 

Purpose and Need. As discussed 

elsewhere in this preamble, PHMSA is 

amending requirements in the 

Hazardous Materials Regulations to 

enhance the integrity of inner 

packagings or receptacles of 

combination packagings containing 

liquid hazardous material by ensuring 

they remain intact when subjected to 

the reduced pressure and other forces 

encountered in air transportation. In 

order to substantially decrease the 

likelihood of an unintentional 

hazardous materials release to the 

environment, the amendments adopted 

in this final rule require that closures of 

inner packagings be secured by a 

secondary means of closure. 

Alternatives: PHMSA considered four 

possible alternatives to strengthen 

packaging requirements for air 

shipments of liquid hazardous 

materials: 

Alternative 1: Require that friction 

and screw type closures of inner 

packagings intended to contain liquids 

as part of a combination packaging to be 

secured by a secondary means of 

closure. Under this alternative, we 

would adopt the packaging amendments 

included in the 2011–2012 edition of 

the ICAO Technical Instructions. 

Specifically, we would require friction 

and screw type closures of inner 

packagings intended to contain liquids 

as part of a combination packaging to be 

secured by a secondary means of 

closure. For liquids assigned to Packing 

Groups II or III, a leakproof liner could 

be used to satisfy the secondary closure 

requirement where it could not be 

applied or would be impracticable to 

apply. For liquids of Packing Group I, a 

secondary means of closure, absorbent 

material, and a rigid and leakproof 

receptacle or intermediate packaging 

would be required. This regulatory 

alternative was selected. This 


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Federal Register / Vol. 77, No. 73 / Monday, April 16, 2012 / Rules and Regulations 22509 

alternative harmonizes domestic 

packaging requirements with 

international standards, thereby 

reducing confusion, promoting safety, 

and facilitating efficient transportation. 

Alternative 2: Require enhanced 

pressure differential capability 

requirements on all inner packagings 

intended to contain liquids as part of a 

combination packaging. Current rules 

require that all packages transported by 

air and for which retention of liquids is 

a basic function must be capable of 

withstanding, without leakage, a certain 

pressure differential, which is usually 

95 kilopascals (kPa) (§ 173.27[c]). This 

integrity standard applies to both 

specification and non-specification 

packaging. Under this alternative, 

PHMSA would require packaging 

manufacturers to conduct testing to 

confirm that a combination packaging 

intended for the air transportation of 

liquid hazardous materials is capable of 

withstanding the pressures encountered 

on board aircraft and to maintain a 

documented record of the test results. 

Alternative 3: Adopt the provisions in 

both Alternatives 1 and 2. Under this 

alternative, PHMSA would adopt the 

new and revised regulatory provisions 

summarized in the discussion of 

Alternatives 1 and 2 above. 

Alternative 4: Do nothing. Under this 

alternative, the current regulatory 

scheme applicable to air shipment of 

hazardous liquids would continue in 

place. We did not select this alternative 

because clearly-identified safety risks 

would not be addressed. 

Analysis of Environmental Impacts. 

Hazardous materials are substances that 

may pose a threat to public safety or the 

environment during transportation 

because of their physical, chemical, or 

nuclear properties. The hazardous 

material regulatory system is a risk 

management system that is preventionoriented and focused on identifying a 

safety hazard and reducing the 

probability and quantity of a hazardous 

material release. Releases of hazardous 

materials can result in explosions or 

fires, while radioactive, toxic, 

infectious, or corrosive hazardous 

materials can have short- or long-term 

exposure effects on humans or the 

environment. 

We have reviewed the risks associated 

with transporting combination packages 

containing liquid hazardous materials 

by aircraft and by surface transportation 

to and from aircraft. The amount of 

liquid hazardous material contained in 

air-eligible combination packages to 

which this rulemaking applies is 

minimal and ranges anywhere from 0.5L 

to 450L. However, hazardous materials 

that pose the highest risk to humans and 

the environment are packaged in much 

smaller quantities when transported by 

aircraft, or are not authorized 

transportation by aircraft at all, thereby 

minimizing any consequences to both 

should a package fail and release its 

contents. For these reasons, we 

conclude the amendments adopted in 

this final rule will result in little or no 

impact on the environment. 

I. Privacy Act 

Anyone is able to search the 

electronic form for all comments 

received into any of our dockets by the 

name of the individual submitting the 

comments (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit ‘‘http://dms.dot.gov’’. 

J. Regulation Identifier Number (RIN) 

A regulation identifier number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document can be used 

to cross-reference this action with the 

Unified Agenda. 

List of Subjects in 49 CFR Part 173 

Hazardous materials transportation, 

Packaging and containers, Radioactive 

materials, Reporting and recordkeeping 

requirements, Uranium. 

In consideration of the foregoing, 49 

CFR chapter I is amended as follows: 

PART 173—SHIPPERS—GENERAL 

REQUIREMENTS FOR SHIPMENTS 

AND PACKAGINGS 

■ 1. The authority citation for part 173 

continues to read as follows: 

Authority: 49 U.S.C. 5101–5128, 44701; 

49 CFR 1.45, 1.53. 

■ 2. In § 173.27, paragraphs (a), (d), and 

(e) are revised to read as follows: 

§ 173.27 General requirements for 

transportation by aircraft. 

(a) The requirements of this section 

are in addition to requirements 

prescribed elsewhere under this part 

and apply to packages offered or 

intended for transportation aboard 

aircraft. Except for materials not subject 

to performance packaging requirements 

in subpart E of this part, a packaging 

containing a Packing Group III material 

with a primary or subsidiary risk of 

Division 4.1, 4.2, 4.3, 5.1, or Class 8 

must meet the Packing Group II 

performance level when offered for 

transportation by aircraft. 

* * * * * 

(d) Closures. The body and closure of 

any packaging must be constructed to be 

able to adequately resist the effects of 

temperature and vibration occurring in 

conditions normally incident to air 

transportation. Inner packaging or 

receptacle closures of combination 

packages containing liquids must be 

held securely, tightly and effectively in 

place by secondary means. Examples of 

such secondary methods include: 

Adhesive tape, friction sleeves, welding 

or soldering, locking wires, locking 

rings, induction heat seals, and childresistant closures. The closure device 

must be designed so that it is unlikely 

that it can be incorrectly or 

incompletely closed. Closures must be 

as follows: 

(1) Packing Group I. An inner 

packaging containing liquids of Packing 

Group I must have a secondary means 

of closure applied and packed in 

accordance with paragraph (e) of this 

section. 

(2) Packing Groups II and III. When a 

secondary means of closure cannot be 

applied or is impracticable to apply to 

an inner packaging containing liquids of 

Packing Groups II and III, this 

requirement may be satisfied by 

securely closing the inner packaging 

and placing it in a leakproof liner or bag 

before placing the inner packaging in its 

outer packaging. 

(e) Absorbent materials. Except as 

otherwise provided in this subchapter, 

Packing Group I liquid hazardous 

materials of Classes 3, 4, or 8, or 

Divisions 5.1 or 6.1 that are packaged in 

combination packagings and offered for 

air transport in glass, earthenware, 

plastic, or metal inner packagings must 

be packed using absorbent material as 

follows: 

(1) Inner packagings must be packed 

in a rigid and leakproof receptacle or 

intermediate packaging containing 

sufficient absorbent material to absorb 

the entire contents of the inner 

packaging before packing the inner 

packaging in its outer package. 

(2) Absorbent material must not react 

dangerously with the liquid (see 

§§ 173.24 and 173.24a.). 

* * * * * 

Issued in Washington, DC, on April 10, 

2012 under authority delegated in 49 CFR 

part 1. 

Cynthia L. Quarterman, 

Administrator. 

[FR Doc. 2012–8978 Filed 4–13–12; 8:45 am] 

BILLING CODE 4910–60–P 


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