January 31, 2003

Dr. Robert McGuire
Associate Administrator for Hazardous Materials Safety
Dockets Management System
U.S. Department of Transportation
Room PL 401
400 Seventh St., SW
Washington, DC 20590-0001

Re: Docket No. RSPA 2002-13658 (HM-215E); "Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions" (Notice of proposed rulemaking published December 3, 2003)

Dear Dr. McGuire:

The Dangerous Goods Advisory Council (DGAC) is an international non-profit association established to promote safe transportation of dangerous goods (known domestically as hazardous materials) by supporting adoption of sound, effective, and uniform safety standards, and providing extensive training programs. DGAC is comprised of 158 large and medium-sized companies engaged in shipping and transporting dangerous goods, associated businesses, and 21 trade associations representing thousands of air, highway, and rail transporters, chemical producers and distributors, and packaging manufacturers.

The purpose of this comment is to request additional action, or a change in proposed section 172.323, since it is inconsistent with ICAO Technical Instructions and may create compliance/enforcement problems. But first, some background. During the 18th meeting of the ICAO Dangerous Goods Panel (DGP) in October 2001, a United States paper (DGP/18-WP/55) entitled "Air Eligibility Package Markings" was presented. It is quoted, in part, as follows:

2.1 The panel is requested to consider adopting a package marking indicating the suitability of packagings for air transport. It is proposed to adopt a new paragraph 4; 1.1.2.20 as follows:

Combination packagings must be marked to indicate that the packaging meets the applicable requirements of this Part particularly those applicable only to air transport (e.g. the relevant packaging instruction requirements, pressure differential test, requirement to provide absorbent material and closure requirements). The marking must be durable, legible, of such a size relative to the packaging as to be readily visible and placed adjacent to the markings prescribed on 6; 2.1.1. The marking must include the words "Air Eligible" or* the symbol: ..

With modifications, the proposal was adopted and appears in the 2003-2004 Edition of the Technical Instructions as follows:

2.4.12 Air eligibility marking

From 1 January 2004, packagings, including those used for limited quantities of dangerous goods, must be marked to indicate that the shipper has determined that the packaging meets the applicable air transport requirements. The marking must be applied as prescribed in 2.2 and must be placed adjacent to the markings prescribed in 2.4.1, or for limited quantity packagings, adjacent to the marking prescribed in 2.4.10. The marking must be durable, legible and of such a size relative to the packaging as to be readily visible. The marking must include the symbol consisting of an aircraft within a circle as shown below and may include the words "Air Eligible".

Both the proposal and the ICAO requirement refer to packagings while your proposed rule refers to packages as follows:

172.323 Air eligibility mark.

Air eligibility marking. Except as otherwise specified in this subchapter, each person who offers for transportation or transports by aircraft a hazardous material in a non-bulk package, including packages used for consumer commodities and limited quantities of hazardous materials, must mark the package to indicate that it meets the applicable requirements for air transport. The marking is a certification that the person offering the package intro transportation has determined that it complies with the requirements of this subchapter.

According to the ICAO Technical Instructions at 1-3-3, packaging means, "Receptacles and any other components or materials necessary for the receptacle to perform its containment function." and package means, "The complete product of the packing operation, consisting of the packaging and its contents prepared for transport."; and your definitions in Section 171.8 effectively mean the same thing. Therefore, there is a significant difference between your proposed rule and the corresponding ICAO rule.

DGAC believes your proposed rule, rather than the proposal adopted by the Panel, is the correct choice for a number of reasons, the primary reason being the term "Air Eligible" to connote total compliance for air transport while the ICAO rule applies only to packaging. Consider the meaning of the symbol and the words "Air Eligible" to ramp workers and other cargo handlers who do not have intimate access to shipping documents --- in particular those containing the complete certification of compliance that has been required and in use for many years. Under the international requirement, only the packaging is involved for air eligibility identification, not proper classification, description, marking, labeling, and probably not quantity limitation.

We recognize the dilemma you have in dealing with the matter if you agree with our view. If you intend to adopt your proposed rule as published in the Notice as the best choice to promote air transport safety, we recommend you forward a US variation to ICAO to make clear your intentions.

We appreciate the opportunity to provide you our comments on this potentially important safety matter.

Sincerely,

Alan I. Roberts
President

Addendum: I have received a number of inquiries in regard to authority to place the air eligible marking on a packaging/package. If, as proposed in the NPRM, you require that it represent a total certification of compliance -- packaging, contents, marking, labeling, etc. --- then it appears that the only person who may display the marking on a package would be the same person making the certification required by Section 172.204. Since there is no signature involved in the display of the air eligible marking, as there is for shipping papers, the question is whether or not a packaging manufacturer may pre-certify compliance before the fact. Federal hazardous materials transportation law states the following:

(a) Representation. - A person may represent, by marking or otherwise, that -

(1) a container, package, or packaging ... for transporting hazardous material is safe, certified, or complies with this chapter only if the container, package, or packaging ... meets the requirements of each applicable regulation prescribed under this chapter; (49 U.S.C. 5104)

Bearing this provision of law (and 49 CFR 171.2(C)) in mind, may a packaging be marked with the air eligible mark at the time of its manufacture by a person other than the offeror of the completed package?