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Proposed Rule

Hazardous Materials: Harmonization With the United Nations Recommendations on the Transport of Dangerous Goods: Model Regulations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air

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ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

This document responds to administrative appeals and solicits public comment on proposals generated as a result of certain amendments adopted in an international harmonization final rule published in the Federal Register. The final rule amended the Hazardous Materials Regulations (HMR) by revising, removing or adding proper shipping names, the hazard class of a material, packing group assignments, special provisions, packaging authorizations, packaging sections, air transport quantity limitations, and vessel stowage requirements. The amendments were necessary to align the HMR with recent revisions to international standards for the transport of hazardous materials by all modes. In this notice, PHMSA proposes to amend the HMR as a result of administrative appeals submitted in response to various amendments adopted in the January 19, 2011 final rule. This document also addresses recent actions taken by the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Further, this notice proposes amendments to the HMR as a result of two administrative appeals submitted by an appellant in response to a final rule published in the Federal Register, that revised shipper responsibilities related to packaging design variation, manufacturer notification, and recordkeeping requirements for certain packaging types.

DATES:

Comments must be received by July 24, 2012.

ADDRESSES:

You may submit comments by any of the following methods:

Federal Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

Fax: 1-202-493-2251.

Mail: Docket Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

Hand Delivery: To U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

Instructions: Include the agency name and docket number PHMSA-2009-0126 (HM-215K) or RIN 2137-AE83 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard.

Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, 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 (65 FR 19477), or you may visit http://www.regulations.gov.

Docket: You may view the public docket through the Internet at http://www.regulations.gov or in person at the Docket Operations office at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT:

Michael Stevens, telephone (202) 366-8553, or Shane Kelley, telephone (202) 366-0656, Standards and Rulemaking Division, telephone (202) 366-0656, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

II. Administrative Appeals Submitted in Response to the HM-215K Final Rule

A. Transportation of ORM-D Material

1. Phase-Out of the ORM-D System

2. Overpacks Containing Limited Quantity or ORM-D Material

B. Use of the Square-On-Point and ID Number Limited Quantity Marking

C. Fuel Cell Cartridges Transported in Passenger Checked Baggage

D. Consumer Commodity Transported by Aircraft

E. Incident Reporting for Limited Quantity Material

F. Materials of Trade Exceptions

III. Recent Changes to Part 8 of the ICAO Technical Instructions

IV. Administrative Appeals Submitted in Response to the HM-231 Final Rule

V. Section-by-Section Review of Changes

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for the 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. Paperwork Reduction Act

G. Regulatory Identifier Number (RIN)

H. Unfunded Mandates Reform Act

I. Environmental Assessment

J. Privacy Act

K. International Trade Analysis

I. Background

On January 19, 2011, PHMSA published a final rule under Docket PHMSA-2009-0126 (HM-215K; 76 FR 3308) that revised the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to align with various international standards. The final rule adopted amendments to the HMR regarding hazard communication, hazard classification including packing group assignment, packaging authorization, air transport quantity limitations, and various other international harmonization-related topics. The amendments were necessary to align the HMR with the latest revisions to the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), the International Maritime Organization's Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of Dangerous Goods Regulations (TDG Regulations), and the United Nations Recommendations on the Transport of Dangerous Goods: Model Regulations (UN Model Regulations) to facilitate to the seamless transportation of hazardous materials internationally, to, from, and within the United States. In this notice of proposed rulemaking (NPRM), PHMSA is proposing a number of amendments in response to administrative appeals filed in accordance with 49 CFR 106.110-130 regarding revisions to the HMR adopted in the January 19, 2011 final rule. This document also addresses recent actions taken by the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Additionally, PHMSA is proposing amendments to the HMR as a result of two administrative appeals submitted by an appellant in response to a final rule published February 2, 2010 (HM-231; 75 FR 5376), that revised shipper responsibilities related to packaging design variation and manufacturer notification recordkeeping requirements for certain packaging types.

II. Administrative Appeals Submitted in Response to the HM-215K Final Rule

This notice addresses administrative appeals submitted in response to the January 19, 2011 final rule from the following companies and organizations:

American Coatings Association (ACA).

Association of Hazmat Shippers, Inc. (AHS)

Dangerous Goods Advisory Council, Inc. (DGAC).

Fuel Cell and Hydrogen Energy Association (FCHEA).

Healthcare Distribution Management Association (HDMA).

Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI)

PPG Industries (PPG).

The administrative appeals are discussed in detail as follows:

A. Transportation of ORM-D Material

A number of administrative appeals concern issues related to our adoption of the international system for transportation of limited quantity material. Specifically, some appellants are concerned with the eventual phase-out of our domestic system for the transportation of limited quantity material otherwise known as other regulated material (ORM-D) (i.e., the ORM-D system). Under certain conditions, the HMR and international standards allow lesser quantities of relatively low risk hazardous materials (i.e., limited quantity material) to be afforded relief from some of the requirements generally applicable to hazardous materials transported by all modes. For example, a limited quantity material is not generally required to be packaged in a DOT or UN standard packaging. Most regulatory amendments resulting from adoption of the international system and the eventual phase-out of the ORM-D system involve revisions to hazard communication requirements, material quantity limitations and the types of material authorized. In this notice, we note that the AHS petition (P-1542) and PHMSA initiative to adopt limited quantity requirements for Types B through F self-reactive liquids and solids (non-temperature controlled) will be addressed in a separate NPRM under Docket No. PHMSA-2011-0142 (HM-219).

1. Phase-Out of the ORM-D System

PHMSA revised the HMR to phase out its system of reclassing and transporting limited quantity material as ORM-D. Under this system, a limited quantity of hazardous material that also meets the definition of a “consumer commodity” may be reclassed as ORM-D and is eligible for additional exceptions from regulation. See § 171.8 for the definition of “consumer commodity.” The January 19 final rule amended the HMR by phasing out the ORM-D system beginning January 1, 2013, for material transported by aircraft and, January 1, 2014, for material transported by all other modes of transportation (e.g., motor vehicle). ACA and HDMA appealed our decision to phase out the ORM-D system arguing that we did so “without any debate or consideration of [1] the type of materials that use this exception; [2] the costs incurred by the regulated community; and [3] the safety benefits.” ACA claimed that many companies and organizations, including themselves, asked for a separate rulemaking to address these issues. ACA is also concerned that although we provided a summary of comments against the phase-out in the preamble to the final rule, PHMSA did not discuss arguments raised in the comments. They stated we arbitrarily concluded that because there would be no immediate phase-out of the current ORM-D system, there would not be a sizeable impact to companies on the basis they would have sufficient time to adjust to the eventual phase-out. ACA asked us to reconsider the decision to not move forward in a separate rulemaking and to fully consider the effects of phasing out the ORM-D system. Additionally, HDMA requested that PHMSA allow for up to a 10-year phase-out based on the longevity of its packaging systems (i.e., totes) currently in use. According to HDMA, such totes are permanently marked with the “Consumer commodity, ORM-D” marking on them.

PHMSA response.

The HMR have long-recognized the relatively low risk posed by the transportation of certain hazardous materials such as limited quantities or consumer commodities. Considerable efforts have been made internationally to harmonize multi-modal standards with regard to the transport of limited quantities, including consumer commodities. We held public meetings on this issue in February 2006 and March 2008 to discuss potential impacts on domestic stakeholders. Additionally, this issue was discussed during our pre-UN public meetings held in 2006 and 2007. There was considerable domestic interest in pursuing further harmonization internationally due to the potential for substantial savings in transportation costs and improved transportation efficiency. In the advance notice of proposed rulemaking (ANPRM) (October 21, 2009; 74 FR 53982) and NPRM we invited comments on this issue with regard to aligning the HMR with the UN Model Regulations for the domestic and international transport of limited quantities and consumer commodities. Of particular concern were any negative impacts on the domestic transportation of consumer commodities reclassed as ORM-D materials. While some changes adopted in the UN Model Regulations were similar to those currently in the HMR regarding limited quantities and consumer commodities (e.g., inner packaging limits and non-specification outer packagings allowed), some changes were not (e.g., marking, labeling, package gross mass). We stated that depending on the comments received and our own evaluation, we may determine that the significance of any amendments on the issue may warrant a separate rulemaking action. In the January 19, 2011 final rule, we concluded a separate rulemaking was not in the best interest of the hazardous material transportation community particularly when it involves international transportation. Further, creating a single global system for packaging, hazard communication, and transportation of limited quantity material would facilitate the domestic and international flow of hazardous material trade and any further delay in the phase-out would not be useful. Little or no quantification of any negative impact, including costs to domestic shippers and carriers alike, was provided in response to the ANPRM or NPRM. However, the Healthcare Distribution Management Association (HDMA) did provide some cost data related to its unique practice of reusing totes permanently embossed with the ORM-D marking. Some commenters also argued against any phase-out based on the historically safe transportation of limited quantity material under the ORM-D system. Commenters further stated that PHMSA should not adopt the international system simply based on the opportunity to align the HMR with international standards.

Allowing dual systems for communicating packages of limited quantity material would likely cause confusion and place unreasonable burdens on carriers and some shippers to train their hazmat employees to recognize and comply with both systems. We believe adopting a single global system for the transportation of limited quantity material will greatly improve safety and efficiency by decreasing the aforementioned potential for delays and confusion during transportation and by removing the burden of providing training in dual systems used to communicate the transportation of limited quantity material. However, we recognize the need to provide sufficient time for domestic shippers and carriers to adjust to the revised system and are sympathetic to the concerns expressed by ACA, HDMA and others regarding this need. Therefore, in this notice we are proposing only to authorize the continued use of packagings marked “Consumer commodity, ORM-D” until December 31, 2015 for domestic highway, rail and vessel transportation.

2. Overpacks Containing Limited Quantity or ORM-D Material

In the January 19, 2011 final rule, PHMSA revised the regulation for overpacks (as defined in § 171.8) by requiring the “OVERPACK” marking on an overpack containing limited quantity packaging if all markings are not visible. DGAC expressed concern over the manner in which the language in the requirement is phrased, and that it implies all markings on each packaging in the overpack must be visible. DGAC noted that this is not consistent with the UN Model Regulations which states the overpack “shall be marked with the word “OVERPACK” and the marking required by this Chapter unless the markings representative of all dangerous goods in the overpack are visible.” See 3.4.11 of the 16th Revised Edition of the UN Model Regulations. It is their understanding this refers to the limited quantity marking and not to all markings that may be required by the UN Model Regulations. Their understanding is that use of the term “representative” communicates a requirement that only one limited quantity package marking needs to be visible to represent all limited quantity packaging. DGAC requested that PHMSA revise the overpack requirements in § 173.25(a)(6) to be consistent with the UN Model Regulations.

PHMSA response.

The HMR do not currently require that every individual mark (or label) on each package contained in an overpack be visible. For example, as stated in § 173.25(a)(2), an overpack must be marked with the proper shipping name and identification number (when applicable) for each hazardous material contained in the overpack, unless marking and labels representative of each hazardous material in the overpack are visible. We recommend where packages are stacked and/or banded on a pallet as part of an overpack, the packages should be positioned, when possible, so that the markings and labels are visible on the outside of the overpack. However, this does not mean that every package marking (or label) must be visible or the overpack must be marked accordingly. With regard to the “OVERPACK” marking requirement for overpacks containing limited quantity and ORM packages, in this NPRM we are accepting DGAC's appeal and are proposing to revise § 173.25(a)(6) to clarify that not all limited quantity and ORM markings must be visible and that the marking requirement is only applicable to the limited quantity and ORM mark itself. Additionally, a new § 173.25(a)(7) is proposed to be added for clarity to separate limited quantity and ORM overpack marking requirements from excepted quantity overpack marking requirements.

B. Use of the Square-On-Point and ID Number Limited Quantity Marking

Formerly, § 172.315 excepted for other than transportation by aircraft, a package containing a limited quantity substance or article from being marked with the proper shipping name if it was marked with a square-on-point containing the UN identification (ID) number of the limited quantity substance or article. In the January 19, 2011 final rule, we provided a one-year transition period to authorize continued use of this marking before the revisions to the limited quantity markings become effective. ACA, DGAC, and PPG all stated the one-year transition period does not allow sufficient time to deplete stock(s) of packagings pre-printed with the square-on-point mark containing the ID number and requested an extension of three- to five-years. Specifically, ACA requested a three- to five-year timeframe while DGAC and PPG ask for a three-year timeframe. ACA, DGAC, and PPG maintained that without a longer transition period, shippers will be forced to remark packaging at their cost and there is no impact to safety by allowing continued use of the existing marking. Appellants also pointed out this alternative limited quantity marking communicates more information than the newly adopted markings or the original ORM-D markings. They stated that PHMSA already provides for a two- to three-year transition period for the phase-out of the ORM-D marking, depending on the mode of transportation. They also requested, for clarification, that any transition periods be included in § 171.14 (transitional provisions) and § 172.300 (marking applicability).

PHMSA response.

We agree that shippers should be provided with the same transition period to continue using the square-on-point mark containing the UN identification (ID) number that was provided for the continued use of the ORM-D marking(s). In the administrative appeal final rule (HM-215K; RIN 2137-AE76), we granted the appeals submitted by ACA, DGAC, and PPG and revised § 172.315 accordingly to extend the transition period to December 31, 2013. The administrative final rule also authorized, for domestic air transportation, use of the square-on-point mark containing the ID number to continue until December 31, 2012.

In response to administrative appeals filed by ACA, HDMA and DGAC, in this NPRM we are proposing that for other than air transportation, continued use of the square-on-point mark containing the ID number would be authorized until December 31, 2015. PHMSA is also soliciting public comment on whether for other than air transportation, a previously authorized limited quantity package marking (i.e., proper shipping name only) should be reauthorized for a similar transition period.

C. Fuel Cell Cartridges Transported in Passenger Checked Baggage

In the January 19, 2011 final rule, we revised the 49 CFR 175.10 passenger exceptions to allow passengers and crew members to place certain spare fuel cell cartridges containing a flammable liquid (Class 3) or corrosive material (Class 8) in checked baggage. We limited the scope of fuel cell cartridge chemistries allowed in checked baggage by excluding fuel cell cartridges containing Divisions 2.1 (flammable gas) and 4.3 (dangerous when wet) material. Although this is inconsistent with the ICAO Technical Instructions, in that ICAO only restricts spare fuel cell cartridges containing Division 4.3 material from checked baggage, we believed that the prohibition should include spare cartridges containing Division 2.1 materials. Flammable gases are generally prohibited from transportation on passenger-carrying aircraft as cargo. When combined with the uncertainty of the effect of baggage handling on the durability of these products when stowed in a passenger's checked baggage, the risks posed are of concern. In their administrative appeals, FCHEA and LSI requested that PHMSA revise § 175.10 to align with the ICAO Technical Instructions and allow spare fuel cell cartridges containing Division 2.1 flammable gas to be carried in checked baggage.

PHMSA response.

We are granting the appeal for reconsideration of the issue by providing additional opportunity for comment. We are soliciting public comment until July 24, 2012 for the limited purpose of gathering information to help us determine whether or not to allow fuel cell cartridges containing Division 2.1 flammable gas to be carried aboard a passenger-carrying aircraft in checked baggage.

D. Consumer Commodity By Air

In the January 19, 2011 final rule, PHMSA adopted requirements for certain consumer commodities intended for transportation by aircraft in new § 173.167. The new description and identification number (ID8000) are consistent with the consumer commodity entry in the ICAO Technical Instructions in Packing Instruction Y963. In its appeal submitted in response to the final rule, DGAC expressed concerns that the alignment between the two standards was not consistent. For example, DGAC pointed out that absorbent material requirements and stack test criteria were not included in the § 173.167 packaging section.

PHMSA response.

DGAC is correct in its assessment of the inconsistencies that exist between the consumer commodity provisions adopted in the HMR and the ICAO Technical Instructions. Thus, we are granting DGAC's administrative appeal and propose to revise § 173.167 accordingly.

E. Incident Reporting for Limited Quantity Material

The detailed hazardous materials incident reporting requirements of the HMR allow for exceptions from these requirements, specifically, § 171.16(d)(2) excepts, under certain conditions, the unintentional release of a hazardous material properly classed as ORM-D and a PG III material in Class or Division 3, 4, 5, 6.1, 8, or 9, from the written reporting requirements. ACA indicated in its appeal that the reporting requirements as they apply to limited quantity material should be reviewed based on the eventual phase-out of the ORM-D hazard class and suggested the exception for ORM-D material should be extended to limited quantity packagings.

PHMSA response.

We agree with ACA that relief from incident reporting previously provided to ORM-D material should continue to be provided for such materials now transported as limited quantities. We are not, however, proposing to extend the exception from incident reporting to limited quantity Class 7 (radioactive) material, instruments, and articles due to the unique nature of the hazard and because this type of material was never authorized to be reclassed and transported as ORM-D. Additionally, this exception is not applicable to air transportation.

F. Materials of Trade

The materials of trade (MOTS) exceptions of the HMR allow certain hazardous material articles and substances, including ORM-D, to be transported by motor vehicle as part of a business operation under less regulation.

PHMSA response.

Similar to the applicability of written incident reporting exceptions to limited quantity material, our review of the HMR revealed that we did not amend the materials of trade exceptions under the January 19, 2011 final rule to reflect the eventual phase-out of the ORM-D system. Similar to the revisions to the written incident reporting requirements, we believe there is no impact to safety by extending the exception for ORM-D to limited quantity material. Most materials reclassed as ORM-D are limited quantity material themselves; an ORM-D is a limited quantity material that also meets the definition of a “consumer commodity.” See § 171.8 for the definition of consumer commodity.

In this notice, we are proposing to extend the MOTS exceptions to limited quantity packages consistent with the exception provided to ORM-D material. We are not, however, proposing to extend the exception to limited quantities of Division 4.3 (dangerous when wet) liquid material or Class 7 (radioactive) material, instruments or articles due to the unique nature of these hazards and because these materials were never authorized to be reclassed and transported as ORM-D. Additionally, we propose to clarify that exceptions for limited quantity material also include limited quantity material authorized under § 173.63 for certain Division 1.4S explosives and § 173.306 for compressed gases.

III. Recent Changes to Part 8 of the ICAO Technical Instructions

At the 23rd Meeting of the ICAO Dangerous Goods Panel (DGP), held October 11-21, 2011, the DGP recommended amending Part 8 of the ICAO Technical Instructions applicable to passengers and crew members and the hazardous materials (dangerous goods) they may introduce aboard an aircraft either in checked or carry-on baggage or on one's person. Such provisions form the basis of similar provisions provided in § 175.10 of the HMR. One recommendation adopted by the DGP addressed concerns over wheelchairs and other mobility aids found activated after flight. Additionally, the DGP addressed the absence of any reference to mobility aids powered by nickel metal hydride batteries, and wheelchairs and other mobility aids specifically designed to allow its battery or batteries to be removed from the device and carried aboard the aircraft by a passenger within a protective bag or pouch. In this NPRM, PHMSA is proposing to amend the HMR by addressing the potential for unintended activation of all stowed devices on an aircraft and providing for the intentional removal of a lithium ion battery from a device and its stowage in the passenger cabin. PHMSA intends to address remaining Part 8 and § 175.10 revisions, including wheelchairs and other mobility aids powered by nickel metal hydride batteries, in a separate rulemaking under Docket PHMSA-2012-0027 (HM-215L).

The ICAO Technical Instructions and the HMR limit lithium ion batteries used to power portable electronic devices and medical devices to 160 watt-hours and 25 grams aggregate equivalent lithium content, respectively. Additionally, the ICAO Technical Instructions and the HMR limit any spare lithium ion batteries used to power portable electronic devices and medical devices to carry-on baggage only. At its 23rd Meeting, the DGP was informed of lithium ion batteries developed for wheelchairs and other mobility aids which did not exceed 160 watt-hours (13.5 grams aggregate equivalent lithium content). Therefore, the DGP adopted a proposal introduced by the International Air Transport Association (IATA) to include spare lithium ion batteries for battery-powered wheelchairs and other mobility aids in Part 8 consistent with the provisions for spare lithium ion batteries used to power portable electronic devices and medical devices. In this NPRM, PHMSA is proposing similar provisions by revising § 175.10(a)(17) of the HMR.

The DGP was also informed of new mobility aid designs which require the lithium ion battery to be removed from the device to permit efficient and effective stowage and transport of the mobility aid in the cargo compartment of the aircraft. The DGP agreed it would be safer to require that the removed lithium ion battery be carried in the passenger cabin rather than being stowed as checked baggage with the mobility aid. Subsequently, at the same meeting, the DGP was informed of mobility aid designs equipped with lithium ion batteries, which required removal for stowage (e.g., collapsible), that exceed the 160 watt-hour limit (13.5 grams aggregate equivalent lithium content). The DGP Panel therefore adopted an upper limit of 300 watt-hours (25 grams aggregate equivalent lithium content) for batteries which must be removed and carried aboard in the passenger cabin. The DGP Panel agreed, that when applicable, the battery must be removed by the user. Because the HMR currently places an upper limit on such batteries to 25 grams aggregate equivalent lithium content (300 watt-hours), no corresponding revision to § 175.10(a)(17) of the HMR is necessary.

Therefore, in this NPRM, PHMSA proposes to amend the HMR for consistency with the ICAO DGP/23 Panel recommendations. This NPRM also proposes to clarify and correct some related amendments adopted in the original January 19, 2011 final rule. See the Section-by-Section discussion of specific amendments being proposed in § 175.10 in Section V. of this preamble.

IV. Administrative Appeal Submitted in Response to the HM-231 Final Rule

In this notice, PHMSA responds to an administrative appeal submitted in response to a final rule published February 2, 2010 (HM-231; 75 FR 5376) that adopted miscellaneous amendments to packaging provisions in the HMR. The final rule revised recordkeeping requirements in § 173.22 for shipper retention of manufacturer notification (including closure instructions) and required shippers to maintain a packaging's manufacturer notification (including closure instructions) for 365 days subsequent to offering the package for transportation. The final rule also revised § 178.2(c) to strengthen manufacturer notification requirements and to allow them greater flexibility in how they provide the notification. The final rule was effective on October 1, 2010.

On March 3, 2010, we received an administrative appeal from DGAC requesting that PHMSA delay the effective date of the final rule for two years to provide sufficient time for packaging manufacturers to review their current packaging design manufacturer notification (including closure instructions) for compliance with the new requirement to ensure closure instructions provide a repeatable method of closing the packaging consistent with the way it was closed prior to performing qualification testing on the packaging design.

We did not grant the DGAC administrative appeal in our September 30, 2010 final rule (75 FR 60333) that responded to a petition for rulemaking and several other administrative appeals. Specifically, we did not grant DGAC's request for a two-year extension of the effective date; however, we did agree that aligning the review and preparation of a packaging's manufacturer notification with its periodic retest merited consideration because it would facilitate the packaging manufacturer's and distributor's compliance with new packaging manufacturer notification requirements adopted in the rule. Thus, in the September 30, 2010 final rule, we revised the recordkeeping requirement from 365 days to a two-year period for combination packagings and a one-year period for single packagings consistent with a typical packaging design's periodic retest frequency.

DGAC submitted a follow-up administrative appeal objecting to our revision in the September 30, 2010 final rule to the recordkeeping requirement for manufacturer notification and requested that PHMSA return the recordkeeping duration to the 365 days adopted under the February 2, 2010 final rule. DGAC stated that while the preamble discussion in the September 30, 2010 final rule recognized its concerns in the initial appeal, the regulatory response did not grant its request for the extension of the effective date and, instead, created a recordkeeping requirement of two years that is more difficult to comply with than the original one-year (365-day) requirement in the February 2, 2010 final rule. DGAC claimed there is no need for a shipper to retain a copy of a packaging's manufacturer notification (including closure instructions) for longer than 365 days. DGAC also asked whether the words “supporting documentation” were intentionally omitted from the September 30, 2011 final rule revision to 49 CFR 178.601(g)(1). Further, DGAC requested that PHMSA amend 49 CFR 171.14 to extend the effective date of the February 2, 2010 final rule to October 1, 2011.

PHMSA response.

Although not stated clearly in both final rules, it was our intent that the new manufacturer notification requirements apply to all applicable hazardous materials packagings manufactured on or after October 1, 2010. Packagings manufactured before this date should already conform to HMR performance standards for their design type in effect at the time of manufacture. As we stated in the February 2, 2010 final rule, we revised this regulation to address an increase in hazardous materials releases as a result of improperly closed packagings. In our opinion, review of existing manufacturer notifications for packaging designs that should already be in compliance with the HMR would involve much less effort than DGAC described in its administrative appeal. We also believe sufficient time has elapsed since the February 2, 2010 final rule was published to complete this task and any additional time is not warranted.

Therefore, in this notice, we are denying DGAC's appeal to extend the effective date of the rule. However, we are proposing to amend § 178.2(c)(1)(ii) of the HMR based on DGAC's request to revert back to the original recordkeeping retention duration for manufacturer notification to the 365-day period adopted in the February 2, 2010 final rule. Additionally, PHMSA is proposing to amend § 173.22(a)(4)(ii) by requiring a shipper to retain manufacturer notification (including closure instructions) for a period of 90 days once a package is offered to the initial carrier for transportation in commerce.

In this NPRM, PHMSA is proposing to clarify that only bulk packagings and cylinders manufactured in accordance with Part 178 of the HMR are excepted from the manufacturer notification (including closure instructions) retention requirements specified in § 173.22(a)(4) if such information is permanently embossed or printed on the packaging. This exception was only provided with such packagings in mind and was originally adopted as a result of public comment.

For clarification, we did not revise § 178.601(g)(1) in the September 30, 2010 final rule as DGAC asserts; we did correct punctuation in §§ 178.601(g)(8)(xiii)(C) and (g)(8)(xiii)(D), which do not include references to supporting documentation. Moreover, we note that the requirement for supporting documentation adopted in the February 2, 2010 final rule remains in § 178.601(g)(1) with the statement that the method used to determine whether the inner packaging, including closure, of a Variation 1 packaging maintains an equivalent level of performance to the originally tested packaging design must be “documented in writing by the person certifying compliance and retained in accordance with paragraph (l)” of § 178.601. Therefore, no further revision of this paragraph is needed or is proposed in this notice.

V. Section-by-Section Review of Changes

Part 171

Section 171.16

This section prescribes written hazardous material incident report requirements. In this notice, we are proposing to revise the paragraph (d) exceptions to reflect the eventual phase-out of the ORM-D system on December 31, 2015 and to extend the exception provided for material classed as ORM-D to hazardous materials authorized for transportation as limited quantity material under Subparts C through E and Subpart G of Part 173 of the HMR. This exception is not applicable to air transportation. See section II.E for a comprehensive discussion of the proposed changes.

Part 172

Section 172.200

Section 172.200 prescribes the applicability of shipping paper requirements for the transportation of hazardous materials. In the January 19 final rule, paragraph (b)(3) was revised to remove the exceptions for ORM-D material in conformance with revisions made to the limited quantity requirements. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA. Additionally, we propose to revise paragraph (b)(3) to correct the shipping paper applicability for a vessel shipment of ORM-D material that was inadvertently adopted in the January 19, 2011 final rule. Additionally, we want to emphasize that limited quantity shipments offered for transportation by air or vessel are required to be accompanied by shipping papers as adopted in the January 19, 2011 final rule.

Section 172.315

Section 173.315 prescribes the requirements for marking packages containing limited quantity material. Based on administrative appeals submitted and requests to make the requirements for limited quantity marking clearer, we propose to revise § 172.315 to allow the continued use of alternative limited quantity markings (i.e., square-on-point with Identification Number) marking for the same duration offered for continued use of the ORM-D marking, that is, until December 31, 2015. The expiration date for the square-on-point with Identification Number marking remains December 31, 2012 for air transportation.

Section 172.316

Section 172.316 prescribes marking requirements for packages containing materials classed as ORM-D and ORM-D-AIR. As adopted in the January 19 final rule, the marking prescribed in this section will no longer be authorized for limited quantities effective January 1, 2014. In this document, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA. The expiration date for the ORM-D-AIR hazard class marking remains December 31, 2012 for air transportation.

Part 173

Section 173.6

This section prescribes exceptions from certain requirements of the HMR for the transportation of hazardous materials defined as material of trade when transported by motor vehicle. See § 171.8. In this notice, we are proposing to revise the paragraph (d) exceptions to reflect the phase-out of the ORM-D system on December 31, 2015 and extend the exception provided ORM-D material to hazardous materials authorized for transportation as limited quantity material under Subparts C through E and Subpart G of Part 173 of the HMR. See section II.F for a comprehensive discussion of these proposed changes.

Section 173.22

Section 173.22 prescribes shipper responsibilities. In this document, PHMSA responds to an administrative appeal submitted in response to a final rule published February 2, 2010 (HM-231; 75 FR 5376) that adopted miscellaneous amendments to packaging provisions in the HMR. The final rule revised recordkeeping requirements in § 173.22 for shipper retention of manufacturer notification (including closure instructions). The amendments adopted required shippers to maintain a packaging's manufacturer notification (including closure instructions) for 365 days subsequent to offering the package for transportation.

In this notice, PHMSA is proposing to revise § 173.22(a)(4) to clarify that only bulk packagings and cylinders manufactured in accordance with Part 178 of the HMR are excepted from the manufacturer notification (including closure instructions) retention requirements specified in § 173.22(a)(4) (shipper responsibilities) if such information is permanently embossed or printed on the packaging. Additionally, we are proposing to revise the same paragraph to require that, if applicable, a shipper only be required to retain the packaging design's manufacturer notification (including closure instructions) for 90 days once offered to the initial carrier for transportation. See Section III of this preamble for a more comprehensive discussion.

Section 173.25

This section prescribes requirements for the transportation of authorized packages in overpacks used for protection or convenience of handling or to consolidate packages. In this document, we are proposing to revise § 173.25(a)(6) to clarify that all markings on each package containing a limited quantity or ORM-D material in an overpack are not required to be visible, but rather, that markings representative of each hazardous material in the overpack are visible as specified in § 173.25(a)(2) and (a)(3). Additionally, we are proposing to correct an error made in the January 19, 2011 final rule by revising paragraphs (a)(6) and the new (a)(7) applicable to overpacked packages of limited quantities, ORM-D, and excepted quantity materials to reaffirm that an overpack is only required to be marked with the word “OVERPACK” if specification markings, when required, are not visible.

Because these amendments were not proposed in the original NPRM, nor were they adopted in the January 19, 2011 final rule, we believe notice and comment are appropriate. We are therefore granting the administrative appeals and soliciting public comment until July 24, 2012 for the purpose of gathering information to help determine if § 173.25(a)(6) and (a)(7) should be revised to clarify that all markings on each package containing a limited quantity, ORM-D, or excepted quantity material in an overpack, are not required to be visible; rather, all markings representative of each hazardous material in the overpack are to be visible and whether the required use of the “OVERPACK” mark should be expanded in accordance with the various international standards.

Section 173.63

Section 173.63 specifies packaging exceptions for certain Division 1.4S explosive articles authorized for reclassification and transport as ORM-D material. Such articles in Division 1.4S may continue to be reclassed as ORM-D and offered for transportation until December 31, 2013. Thus, in this notice we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA.

Section 173.144

Section 173.144 defines “Other Regulated Materials, ORM-D.” In this notice, we are proposing to revise the effective date for expiration of the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA.

Sections 173.150, 173.151, 173.152, 173.153, 173.154, 173.155 and 173.306

Sections 173.150 through 173.155 prescribe the exceptions for certain Class 3, 8 and 9 and Division 2.1, 2.2, 4.1, 4.2, 5.1, 5.2, 6.1 hazardous materials under the HMR. In response to HDMA's administrative appeal, in this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in each of these sections' consumer commodity paragraphs, where applicable.

Section 173.156

Section 173.156 prescribes exceptions for the Other Regulated Materials, ORM-D hazard class. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to HDMA's administrative appeal.

Section 173.161

Section 173.161 prescribes packaging requirements for chemical kits and first aid kits containing small amounts of hazardous materials. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to HDMA's administrative appeal.

Section 173.165

In the January 19 final rule, a new section 173.165 was added to prescribe packaging and other requirements for “Polyester resin kits, UN3269” formerly contained in § 172.102, special provision 40 and § 173.152(b)(4) of the HMR. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to HDMA's administrative appeal.

Section 173.167

In the January 19 final rule, a new section 173.167 was added to indicate authorized materials and quantity limits for articles and substances that may be described as “ID8000, Consumer commodity,” eligible for transport by aircraft and authorized transportation by all modes. This notice addresses inconsistencies with the ICAO Technical Instructions brought to our attention in appeals submitted in response to the final rule. Appellants are correct in their assessment of the inconsistencies that exist between the consumer commodity provisions adopted in the HMR and the ICAO Technical Instructions. We are granting their administrative appeals and soliciting public comment for the limited purpose of gathering any information to help determine if we should revise the § 173.167 amendments adopted in the final rule consistent with Packing Instruction Y963 of the ICAO Technical Instructions.

Section 173.230

Section 173.230 prescribes the requirements for fuel cells offered for transportation by all modes. In paragraph (g) of the final rule, PHMSA adopted limited quantity provisions for such articles by aircraft consistent with the ICAO Technical Instructions. In paragraph (h), PHMSA also adopted a prohibition of reclassification to “Consumer commodity, ORM-D-AIR” for transportation by aircraft. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class for other than air transportation from December 31, 2013 to December 31, 2015 in response to HDMA's administrative appeal.

Section 173.306

Section 173.306 prescribes requirements for limited quantity of compressed gases. In paragraph (i)(2), we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to HDMA's administrative appeal.

Section 173.309

Section 173.309 prescribes requirements for fire extinguishers. In this NPRM, we are proposing to revise the entire section for clarity. First, we are proposing to move the limited quantity requirements and exceptions from paragraph (a) to paragraph (b) as we typically indicate regulation first in most sections followed by any exceptions to that regulation. Second, we are proposing to add regulatory text from § 172.102(c)(1) Special provision 18 to revised paragraph (a) that prescribes the conditions when specification cylinders may be described, offered and transported in commerce as fire extinguishers. Further, we solicit public comment on whether we should consider allowing UN specification cylinders as fire extinguishers in § 173.309. Lastly, we are proposing to revise paragraph (b) by excepting a limited quantity package of fire extinguishers from shipping papers when transported by highway or rail if marked in accordance with § 172.315. This exception is provided in addition to the existing HMR exceptions from labeling (unless offered for transportation by aircraft), placarding, Part 174 and Part 177 for limited quantity packages of fire extinguishers.

Part 175

Section 175.10

In the January 19, 2011 final rule, we amended the HMR to align with international standards by designating paragraphs (a)(17) and (a)(18) as paragraphs (a)(18) and (a)(19) and by adding a new paragraph (a)(17) that authorized a mobility aid such as a wheelchair, powered by a lithium ion battery, to be transported aboard a passenger-carrying aircraft.

For consistency with the wheelchair or other battery-powered mobility aid provisions in § 175.10(a)(15) and (a)(16), and the provisions provided for the carriage of portable electronic devices powered by lithium ion batteries in § 175.10(a)(17) (now § 175.10(a)(18)), the final rule merged applicable provisions for the transportation of lithium ion battery-powered mobility aids into a new § 175.10(a)(17). We stated that removal of the battery may be necessary based on results of the required visual inspection or if the mobility aid was to be offered to the operator as checked baggage. It was not our intent to require an operator or passenger to remove a properly secured lithium ion battery from a mobility aid that was not specifically designed to allow its batteries to be removed. Further, it is the responsibility of the operator to determine if the wheelchair or other mobility aid is designed to have its battery removed by the user. Information provided by the user or visual inspection may be used in this process. Therefore, a revision of certain amendments adopted in § 175.10(a)(17) of the final rule is required and are as follows:

  • A mobility aid such as a wheelchair, powered by a lithium ion battery, must be transported as checked baggage aboard an aircraft. This requirement is consistent with the 14 CFR Part 382 provisions under the Air Carrier Access Act (ACAA);
  • Provided the wheelchair or other mobility aid is not specifically designed to allow its lithium ion battery to be removed, battery removal is not required;
  • If the battery is to remain installed, a wheelchair or other mobility aid may be loaded and stowed in any orientation determined by the operator necessary to prevent unintentional activation of the mobility aid or short circuiting of the battery and is equally protected as the upright orientation would provide;
  • The wheelchair or other mobility aid must be protected from damage by the movement of baggage, mail, service items, or other cargo; and
  • As adopted in the January 19, 2011 final rule, a lithium ion battery specifically designed to be removed from a mobility aid (e.g., collapsible) by the user and any spare batteries must be transported in carry-on baggage in accordance with paragraph (vii). The carry-on battery must not exceed 25 grams aggregate equivalent lithium content and a maximum of one spare battery not exceeding 25 grams aggregate equivalent lithium content or two spares not exceeding 13.5 grams aggregate equivalent lithium content each may be carried on.

Part 176

Section 176.905

Section 176.905 prescribes specific requirements for motor vehicles or mechanical equipment powered by internal combustion engines that are offered for transportation and transported by vessel. In the January 19, 2011 final rule, PHMSA should have revised the paragraph (i) introductory text to clarify that if any of the exceptions criteria were met, the articles were excepted from the requirements of the HMR. Additionally, PHMSA is proposing in this notice to remove the heading for each exception criterion in paragraph (i) for clarity. They are not necessary and have resulted in confusion among our stakeholders as some of the headings were perceived to be inconsistent with the IMDG Code.

Part 178

Section 178.2

Section 178.2 prescribes HMR applicability and responsibility required of packaging manufacturers. In this notice, PHMSA responds to an administrative appeal submitted in response to a final rule published February 2, 2010 (HM-231; 75 FR 5376) that adopted miscellaneous amendments to packaging provisions in the HMR. The final rule revised recordkeeping requirements in § 173.22 for shipper retention of manufacturer notification (including closure instructions). The amendments adopted required shippers to maintain a packaging manufacturer's notification (including closure instructions) for 365 days subsequent to offering the package for transportation. The final rule also revised § 178.2(c) to strengthen manufacturer notification requirements and to allow manufacturers greater flexibility in how they provide the notification. The final rule was effective on October 1, 2010.

In response to a misunderstanding of an administrative appeal, PHMSA revised the recordkeeping requirement from 365 days to a two-year period for combination packagings and a one-year period for single packagings consistent with a typical packaging design's periodic retest frequency. Subsequently, DGAC submitted another administrative appeal requesting PHMSA revise the notification retention requirements in § 178.2(c)(1)(ii) back to the original one year from date of issuance. Thus, in this notice we are proposing to amend the HMR based on DGAC's request to revert back to the original recordkeeping retention duration for manufacturer notification to one year.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This NPRM is published under the following statutory authorities:

1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This NPRM responds to administrative appeals of certain amendments adopted in final rule PHMSA-2009-0126 (HM-215K) published on January 19, 2011 (76 FR 3308). Additionally, it responds to administrative appeals of certain amendments adopted in a final rule PHMSA-2006-25736 (HM-231) published on February 2, 2010 (75 FR 5376).

2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities.

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.

This notice applies to offerors and carriers of hazardous materials, such as chemical manufacturers, chemical users and suppliers, packaging manufacturers, distributors, radiopharmaceutical companies, and training companies. Benefits resulting from the adoption of the amendments in this notice include enhanced transportation safety resulting from the consistency of domestic and international hazard communications and continued access to foreign markets by U.S. manufacturers of hazardous materials. A regulatory evaluation is available for review in the public docket for this rulemaking.

In most instances, the amendments in this rulemaking reduce compliance costs of the regulated population, and it is likely that these changes are possible without reducing public safety. Although we were not able to quantify all of the costs and benefits for most of the amendments, the net benefits of those we were able to quantify are approximately $3.5 million per year. The following table summarizes the costs and benefits for the different amendments being proposed:

Summary of Costs and Benefits

Issue addressed by amendments to HMRCostsBenefitsNet benefit
Domestic transportation of ORM-D materialExtending the effective date of eliminating the ORM-D system will result in minor short-term costs on shippers and carriers who will have to recognize and comply with two marking systems over a longer transition periodExtending the effective date of eliminating the ORM-D system will allow companies to deplete stocks of hazard communication materials and pre-printed packaging with the ORM-D markings on them. Clarifications will reduce compliance costs that result from confusion and misinterpretation of the regulatory requirements$7.3 million over 2 years.
Use of the Square-on-Point and ID Number Limited Quantity MarkingExtending the effective date of eliminating the revised limited quantity marking system will result in minor short-term costs on shippers and carriers who will have to recognize and comply with two marking systems over a longer transition periodExtending the effective date of eliminating the revised limited quantity marking system will allow companies to deplete stocks of hazard communication materials and pre-printed packaging with the ORM-D markings on them. Clarifications will reduce compliance costs that result from confusion and misinterpretation of the regulatory requirementsPositive.
Fuel Cell Cartridges Transported in Passenger Checked BaggageCosts are expected to be negligibleThe proposal is expected to reduce security costs for locating and removing fuel cells from passenger checked baggage, as well as reduce passenger confusion and the cost to consumers of replacing confiscated fuel cell cartridges$155,766 per year.
Consumer Commodity Transport by AircraftNo costs are anticipated as the proposal provides clarification and guidance for existing requirements adopted in the January 19, 2011 Final RuleClarifications will reduce compliance costs that result from confusion and misinterpretation of the regulatory requirementsPositive.
Incident Reporting for Limited Quantity MaterialNo costs are anticipatedIncreased exceptions for written reporting requirements will reduce the regulatory burden on shippers/carriers of limited quantity materialsPositive.
Materials of Trade ExceptionsNo costs are anticipatedIncreased materials of trade exceptions will reduce the regulatory burden on shippers/carriers of limited quantity materialsPositive.
Recordkeeping Requirements for Manufacturer Notification*Costs are expected to be negligibleReduced costs that shippers will incur as a result of having to retain records for only 90 days as opposed to 730 days$3.3 million per year.
* Administrative appeals submitted in response to the HM-231 Final Rule.

C. Executive Order 13132

This notice has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), and the President's memorandum on “Preemption” published in the Federal Register on May 22, 2009 (74 FR 24693). If adopted in a final rule, it would preempt 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 material 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 for certain subjects. The subjects are:

(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; and

(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 notice addresses all the covered subject items above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This notice is necessary to incorporate revisions to the HMR based on administrative appeals submitted in response to the January 19, 2011 final rule, effective January 1, 2011. Federal hazardous materials transportation law provides at section 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 is [DATE 90 DAYS FROM PUBLICATION DATE OF FINAL RULE IN THE Federal Register].

D. Executive Order 13175

This notice was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this notice does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, 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 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. We have completed an assessment and placed it in the docket for this rulemaking. Commenters are invited to address the costs and benefits of the amendments proposed in this notice and the potential impacts, positive or negative, on small businesses.

This notice 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 that potential impacts of proposed rules on small entities are properly considered.

F. 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 notice identifies a revised information collection request that PHMSA will submit to OMB for approval based on the requirements proposed in this notice. PHMSA has developed burden estimates to reflect proposed changes in this notice, and estimates the information collection and recordkeeping burden as proposed in this notice to be as follows:

  • This notice reduces the OMB Control Number 2137-0572 information collection burden by $1,654,384 annually.

PHMSA will submit the revised information collection and recordkeeping requirements to OMB for approval.

G. Regulatory 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 contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

H. Unfunded Mandates Reform Act

This notice does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

I. Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. In the January 19, 2011 final rule, we developed an assessment to determine the effects of these revisions on the environment and whether a more comprehensive environmental impact statement may be required. Our findings concluded that there are no significant environmental impacts associated with the final rule. Consistency in the regulations for the transportation of hazardous materials aids in shippers' understanding of what is required and permits shippers to more easily comply with safety regulations and avoid the potential for environmental damage or contamination. For interested parties, an environmental assessment was included with the January 19, 2011 final rule available in the public docket. Additionally, we do not see any significant environmental impacts associated with the amendments proposed in this notice regarding the administrative appeals submitted in response to the January 19 final rule. We welcome comment on this initial determination.

J. Privacy Act

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, 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 (65 FR 19477) or you may visit http://www.dot.gov/privacy.html.

K. International Trade Analysis

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of this notice to ensure that it does not exclude imports that meet this objective. Accordingly, this rulemaking is consistent with PHMSA's obligations under the Trade Agreement Act, as amended.

List of Subjects

In consideration of the foregoing, PHMSA is proposing to amend Title 49, Subtitle B, Chapter I as follows:

PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

1. The authority citation for part 171 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 section 31001.

2. In § 171.16, paragraph (d)(2)(i) is revised to read as follows:

Detailed hazardous materials incident reports.
* * * * *

(d) * * *

(2) An unintentional release of a hazardous material when:

(i) The material is—

(A) A limited quantity material packaged under authorized exceptions in the § 172.101 Hazardous Materials Table of this subchapter excluding Class 7 (radioactive) material; or

(B) A Packing Group III material in Class or Division 3, 4, 5, 6.1, 8, or 9;

(ii) The material is released from a package having a capacity of less than 20 liters (5.2 gallons) for liquids or less than 30 kg (66 pounds) for solids;

(iii) The total amount of material released is less than 20 liters (5.2 gallons) for liquids or less than 30 kg (66 pounds) for solids; and

(iv) The material is not—

(A) Offered for transportation or transported by aircraft;

(B) A hazardous waste; or

(C) An undeclared hazardous material;

* * * * *

PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS, AND SECURITY PLANS

3. The authority citation for part 172 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.53.

4. In § 172.200, paragraph (b)(3) is revised to read as follows:

Applicability.
* * * * *

(b) * * *

(3) A limited quantity package unless the material is offered for transportation by aircraft or vessel and, until December 31, 2015, a package of ORM-D material authorized by this subchapter on October 1, 2010, when offered for transportation by highway, rail or vessel.

* * * * *

5. In § 172.315, paragraph (d) is revised to read as follows:

Limited quantities.
* * * * *

(d) Transitional exceptions. (1) Alternative markings. Except for transportation by aircraft and until December 31, 2015, a package containing a limited quantity may continue to be marked in accordance with the requirements of this section in effect on October 1, 2010 (i.e., square-on-point with identification number only) as an alternative to the marking required by paragraph (a) of this section.

(2) ORM-D marked packaging. Except for transportation by aircraft and until December 31, 2015, a packaging marked in accordance with § 172.316 of this part is not required to be marked with the limited quantity marking required by paragraph (a) of this section. For transportation by aircraft and until December 31, 2012, a packaging marked in accordance with § 172.316 is not required to be marked with the limited quantity “Y” marking required by paragraph (b) of this section.

6. In § 172.316, paragraph (a)(2) is revised to read as follows:

Packagings containing materials classed as ORM-D.

(a) * * *

(1) * * *

(2) Until December 31, 2015, ORM-D for an ORM-D material that is packaged in accordance with §§ 173.63, 173.150 through 173.156 and 173.306.

* * * * *

PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS

7. 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.

8. In § 173.6, paragraph (a)(6) is added to read as follows:

Materials of trade exceptions.
* * * * *

(a) * * *

(6) A limited quantity package prepared in accordance with §§ 173.27, 173.63, 173.150, 173.151(b) and (c), 173.152, 173.153, 173.154, 173.155, 173.161, 173.165, 173.167 and 173.306(i) of this subchapter. Division 4.3 substances must be prepared in accordance with paragraph (a)(3) of this section. Class 7 (radioactive) substances, instruments and articles are not authorized under the provisions of this section.

* * * * *

9. In § 173.22, paragraph (a)(4) is revised to read as follows:

Shipper's responsibility.

(a) * * *

(4)(i) For a DOT Specification or UN standard packaging subject to the requirements of part 178 of this subchapter, a person must perform all functions necessary to bring the package into compliance with parts 173 and 178 of this subchapter, as identified by the packaging manufacturer or subsequent distributor (for example, applying closures consistent with the manufacturer's closure instructions) in accordance with § 178.2 of this subchapter.

(ii) For other than a bulk packaging or a cylinder, a person must retain a copy of the manufacturer's notification, including closure instructions (see § 178.2(c) of this subchapter). For a bulk packaging or a cylinder, a person must retain a copy of the manufacturer's notification, including closure instructions (see § 178.2(c) of this subchapter), unless permanently embossed or printed on the packaging. A copy of the manufacturer's notification, including closure instructions (see § 178.2(c) of this subchapter), unless permanently embossed or printed on the packaging when applicable, must be made available for inspection by a representative of the Department upon request for at least 90 days once the package is offered to the initial carrier.

(iii) When applicable, a person must retain a copy of any supporting documentation used to determine an equivalent level of performance under the selective testing variation in § 178.601(g)(1) of this subchapter. Such documentation is to be retained by the person certifying compliance with § 178.601(g)(1) as specified in § 178.601(l).

10. In § 173.25, paragraph (a)(6) is revised and new paragraph (a)(7) is added to read as follows:

Authorized packagings and overpacks.

(a) * * *

(6) Limited quantities and ORM material. The overpack is marked with a limited quantity marking prescribed in § 172.315 of this subchapter or, the ORM marking prescribed in § 172.316 of this subchapter, unless a limited quantity or ORM marking representative of the hazardous material in the overpack is visible.

(7) Excepted quantities. The overpack is marked with all required marking of § 173.4a of this part unless visible.

* * * * *

11. In § 173.63, paragraph (b)(1)(ii) is revised to read as follows:

Packaging exceptions.
* * * * *

(b) * * *

(1) * * *

(ii) Until December 31, 2012, a package containing such articles may be marked with the proper shipping name “Cartridges, small arms” or “Cartridges, power device (used to project fastening devices)” and reclassed as “ORM-D-AIR” material if it contains properly packaged articles as authorized by this subchapter on October 1, 2010. Additionally, for transportation by aircraft, Cartridge, power devices must be successfully tested under the UN Test Series 6(d) criteria for reclassification as ORM-D-AIR material effective July 1, 2011. Until December 31, 2015, a package containing such articles may be marked with the proper shipping name “Cartridges, small arms” or “Cartridges, power device (used to project fastening devices)” and reclassed as “ORM-D” material if it contains properly packaged articles as authorized by this subchapter on October 1, 2010.

* * * * *

12. Section 173.144 is revised to read as follows:

Other Regulated Material (ORM)—Definitions.

Until December 31, 2015 and for the purposes of this subchapter, “ORM-D material” means a material such as a consumer commodity, cartridges, small arms or cartridges, power devices which, although otherwise subject to the regulations of this subchapter, presents a limited hazard during transportation due to its form, quantity and packaging. The article or substance must be a material for which exceptions are provided in Column (8A) of the § 172.101 Hazardous Materials Table.

13. In § 173.150, paragraph (c) is revised to read as follows:

Exceptions for Class 3 (flammable and combustible liquids).
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

* * * * *

14. In § 173.151, paragraphs (b) and (c) are revised to read as follows:

Exceptions for Class 4.
* * * * *

(b) Limited quantities of Division 4.1. Limited quantities of flammable solids (Division 4.1) in Packing Groups II and III and, where authorized by this section, charcoal briquettes (Division 4.2) in Packing Group III, are excepted from labeling requirements unless the material is offered for transportation or transported by aircraft, and are excepted from the specification packaging requirements of this subchapter when packaged in combination packagings according to this paragraph. If authorized for transportation by aircraft, the package must also conform to applicable requirements of § 173.27 of this part (e.g., authorized materials, inner packaging quantity limits and closure securement) and only hazardous material authorized aboard passenger-carrying aircraft may be transported as a limited quantity. A limited quantity package that conforms to the provisions of this section is not subject to the shipping paper requirements of subpart C of part 172 of this subchapter, unless the material meets the definition of a hazardous substance, hazardous waste, marine pollutant, or is offered for transportation and transported by aircraft or vessel, and is eligible for the exceptions provided in § 173.156 of this part. In addition, shipments of limited quantities are not subject to subpart F (Placarding) of part 172 of this subchapter. Each package must conform to the packaging requirements of subpart B of this part and may not exceed 30 kg (66 pounds) gross weight. Except for transportation by aircraft, the following combination packagings are authorized:

(1) For flammable solids in Packing Group II, inner packagings not over 1.0 kg (2.2 pounds) net capacity each, packed in a strong outer packaging.

(2) For flammable solids in Packing Group III, inner packagings not over 5.0 kg (11 pounds) net capacity each, packed in a strong outer packaging.

(c) Consumer commodities. Until December 31, 2015, a limited quantity package (including Charcoal briquettes (NA1361)) containing a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010. For transportation by aircraft, the maximum net mass for Charcoal briquettes (NA1361) is 25 kg per package.

* * * * *

15. In § 173.152, paragraph (c) is revised to read as follows:

Exceptions for Division 5.1 (oxidizers) and Division 5.2 (organic peroxides).
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

16. In § 173.153, paragraph (c) is revised to read as follows:

Exceptions for Division 6.1 (poisonous material).
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package of poisonous material in Packing Group III or a drug or medicine in Packing Group II or III that is also a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

17. In § 173.154, paragraph (c) is revised to read as follows:

Exceptions for Class 8 (corrosive material).
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

* * * * *

18. In § 173.155, paragraph (c) is revised to read as follows:

Exceptions for Class 9 (miscellaneous hazardous materials).
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

19. Section 173.156 is revised to read as follows:

Exceptions for limited quantity and ORM.

(a) Exceptions for hazardous materials shipments in the following paragraphs are permitted only if this section is referenced for the specific hazardous material in the § 172.101 Table or in a packaging section in this part.

(b) Packagings for limited quantity and ORM-D are specified according to hazard class in §§ 173.150 through 173.155 and in 173.306 and 173.309(b). In addition to exceptions provided for limited quantity and ORM-D materials elsewhere in this part, the following are provided:

(1) Strong outer packagings as specified in this part, marking requirements specified in subpart D of part 172 of this subchapter, and the 30 kg (66 pounds) gross weight limitation are not required for packages of limited quantity materials marked in accordance with § 172.315 of this subchapter, or, until December 31, 2015, materials classed and marked as ORM-D and described as a Consumer commodity, as defined in § 171.8 of this subchapter, when—

(i) Unitized in cages, carts, boxes or similar overpacks;

(ii) Offered for transportation or transported by:

(A) Rail;

(B) Private or contract motor carrier; or

(C) Common carrier in a vehicle under exclusive use for such service; and

(iii) Transported to or from a manufacturer, a distribution center, or a retail outlet, or transported to a disposal facility from one offeror.

(2) The 30 kg (66 pounds) gross weight limitation does not apply to packages of limited quantity materials marked in accordance with § 172.315 of this subchapter, or, until December 31, 2015, materials classed and marked as ORM-D and described as a Consumer commodity, as defined in § 171.8 of this subchapter, when offered for transportation or transported by highway or rail between a manufacturer, a distribution center, and a retail outlet provided—

(i) Inner packagings conform to the quantity limits for inner packagings specified in §§ 173.150(b), 173.152(b), 173.154(b), 173.155(b), 173.306(a) and (b), and 173.309(b), as appropriate;

(ii) The inner packagings are packed into corrugated fiberboard trays to prevent them from moving freely;

(iii) The trays are placed in a fiberboard box which is banded and secured to a wooden pallet by metal, fabric, or plastic straps, to form a single palletized unit;

(iv) The package conforms to the general packaging requirements of subpart B of this part;

(v) The maximum net quantity of hazardous material permitted on one palletized unit is 250 kg (550 pounds); and

(vi) The package is properly marked in accordance with § 172.315 or, until December 31, 2015, § 172.316 of this subchapter.

20. In section 173.161, paragraph (d)(2) is revised to read as follows:

Chemical kits and first aid kits.
* * * * *

(d) * * *

(2) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

* * * * *

21. In section 173.165, paragraph (c) is revised to read as follows:

Polyester resin kits.
* * * * *

(c) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

22. Section 173.167 is revised to read as follows:

Consumer commodities.

(a) Effective January 1, 2013, a “consumer commodity” (see § 171.8 of this subchapter) when authorized transportation by aircraft may only include articles or substances of Class 2 (non-toxic aerosols only), Class 3 (Packing Group II and III only), Division 6.1 (Packing Group III only), UN3077, UN3082, UN3175, UN3334, and UN3335, provided such materials do not have a subsidiary risk and are authorized aboard a passenger-carrying aircraft. Consumer commodities are excepted from the specification outer packaging requirements of this subchapter. Packages prepared under the requirements of this section may be offered for transportation and transported by all modes. Additionally, the following apply:

(1) Inner and outer packaging quantity limits. (i) Non-toxic aerosols, as defined in § 171.8 of this subchapter and constructed in accordance with § 173.306 of this part, in non-refillable, non-metal containers not exceeding 120 mL (4 fluid ounces) each, or in non-refillable metal containers not exceeding 820 mL (28 ounces) each, except that flammable aerosols may not exceed 500 mL (16.9 ounces) each;

(ii) Liquids, in inner packagings not exceeding 500 mL (16.9 ounces) each;

(iii) Solids, in inner packagings not exceeding 500 g (1.0 pounds) each; or

(iv) Any combination thereof not to exceed 30 kg (66 pounds) gross weight as prepared for shipment.

(2) Closures. Friction-type closures must be secured by secondary means. Examples of such methods include: adhesive tape, friction sleeves, welding or soldering, positive locking wires, locking rings, induction heats seals, and child-resistant closures. The body and closure of any packaging must be constructed so as to be able to adequately resist the effects of temperature and vibration occurring in conditions normally incident to air transportation. The closure device must be so designed that it is unlikely that it can be incorrectly or incompletely closed.

(3) Absorbent material. Inner packagings must be tightly packaged in strong outer packagings. Absorbent and cushioning material must not react dangerously with the contents of inner packagings. Fragile receptacles containing liquids of Class 3 or Division 6.1, sufficient absorbent material must be provided to absorb the entire contents of the largest inner packaging contained in the outer packaging. Absorbent material is not required if such fragile inner packagings are sufficiently protected as packaged for transport that it is unlikely a failure would occur and, if a failure did occur, that it would be unlikely that the contents would leak from the outer packaging.

(4) Pressure differential capability. Except for UN3082, inner packagings intended to contain liquids must be capable of meeting the pressure differential requirements (75 kPa) prescribed in § 173.27(c) of this part. The capability of a packaging to withstand an internal pressure without leakage that produces the specified pressure differential should be determined by successfully testing design samples or prototypes.

(5) Drop test capability. Fragile inner packagings must be packaged to prevent failure under conditions normally incident to transport. Packages of consumer commodities must be capable of withstanding a 1.2 m drop on solid concrete in the position most likely to cause damage.

(6) Stack test capability. Packages of consumer commodities must be capable of withstanding, without failure or leakage of any inner packaging and without any significant reduction in effectiveness, a force applied to the top surface for a duration of 24 hours equivalent to the total weight of identical packages if stacked to a height of 3.0 m (including the test sample).

(b) When offered for transportation by aircraft, packages prepared under the requirements of this section are to be marked as a limited quantity in accordance with § 172.315(b)(1) and labeled as a Class 9 article or substance, as appropriate, in accordance with subpart E of part 172 of this subchapter.

23. In § 173.230, paragraph (h) is revised to read as follows:

Fuel cell cartridges containing hazardous material.
* * * * *

(h) Consumer commodities. Until December 31, 2015, for other than transportation by aircraft, a limited quantity that conforms to the provisions of paragraph (g) of this section and is also a “consumer commodity” as defined in § 171.8 of this subchapter, may be renamed “Consumer commodity” and reclassed as ORM-D. In addition to the exceptions provided by paragraph (g), shipments of ORM-D materials are not subject to the shipping paper requirements of subpart C of part 172 of this subchapter, unless the materials meet the definition of a hazardous substance, hazardous waste, marine pollutant, or are offered for transportation aircraft, and are eligible for the exceptions provided in § 173.156 of this part.

24. In § 173.306, paragraph (i)(2) is revised to read as follows:

Limited quantities of compressed gases.
* * * * *

(i) * * *

(2) Consumer commodities. Until December 31, 2015, a limited quantity package containing a “consumer commodity” as defined in § 171.8 of this subchapter may be renamed “Consumer commodity” and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR material and offered for transportation and transported in accordance with the applicable provisions of this subchapter in effect on October 1, 2010.

* * * * *

25. Section 173.309 is revised to read as follows:

Fire extinguishers.

(a) Specification 3A, 3AA, 3E, 3AL, 4B, 4BA, 4B240ET or 4BW (§§ 178.36, 178.37, 178.42, 178.46, 178.50, 178.51, 178.55 and 178.61 of this subchapter) cylinders are authorized for manufacture and use as fire extinguishers under the following conditions:

(1) Extinguishing agents must be nonflammable, non-poisonous, non-corrosive, and commercially free from corroding components.

(2) Each fire extinguisher must be charged with a nonflammable, non-poisonous, dry gas that has a dew-point at or below minus 46.7 °C (minus 52 °F) at 101 kPa (1 atmosphere) and is free of corroding components, to not more than the service pressure of the cylinder.

(3) A fire extinguisher may not contain more than 30% carbon dioxide by volume or any other corrosive extinguishing agent.

(4) Each fire extinguisher must be protected externally by suitable corrosion-resisting coating.

(5) Specification 3E and 4BA cylinders must be packed in strong non-bulk outer packagings. The outside of the combination packaging must be marked with an indication that the inner packagings conform to the prescribed specifications.

(b) Limited quantities. Fire extinguishers charged with a limited quantity of compressed gas to not more than 1660 kPa (241 psig) at 21 °C (70 °F) are excepted from shipping papers (except when offered for transportation by aircraft or vessel), labeling (except when offered for transportation by aircraft), placarding, the specification packaging requirements of this subchapter, and are eligible for the exceptions provided in § 173.156 when offered for transportation in accordance with this paragraph (b). Packages must be marked as specified for limited quantities in § 172.315 of this subchapter. Limited quantity shipments conforming to this paragraph are not subject to parts 174 and 177 of this subchapter when transported by highway or rail. In addition, limited quantity packages of fire extinguishers are subject to the following conditions, as applicable:

(1) Each fire extinguisher must have contents which are nonflammable, non-poisonous, and noncorrosive as defined in this subchapter;

(2) Each non-specification fire extinguisher must be packaged as an inner packaging within a combination outer packaging. Examples of acceptable outer packagings for non-specification fire extinguishers include large cartons, racks, cages or other suitable enclosures;

(3) Non-specification cylinders are authorized as fire extinguishers subject to the following conditions:

(i) The internal volume of each cylinder may not exceed 18 L (1,100 cubic inches). For fire extinguishers not exceeding 900 mL (55 cubic inches) capacity, the liquid portion of the gas plus any additional liquid or solid must not completely fill the container at 55 °C (130 °F). Fire extinguishers exceeding 900 mL (55 cubic inches) capacity may not contain any liquefied compressed gas;

(ii) Each fire extinguisher manufactured on and after January 1, 1976, must be designed and fabricated with a burst pressure of not less than six times its charged pressure at 21 °C (70 °F) when shipped;

(iii) Each fire extinguisher must be tested, without evidence of failure or damage, to at least three times its charged pressure at 21 °C (70 °F) but not less than 825 kPa (120 psig) before initial shipment, and must be marked to indicate the year of the test (within 90 days of the actual date of the original test) and with the words “MEETS DOT REQUIREMENTS.” This marking is considered a certification that the fire extinguisher is manufactured in accordance with the requirements of this section. The words “This extinguisher meets all requirements of 49 CFR 173.306” may be displayed on fire extinguishers manufactured prior to January 1, 1976; and

(iv) For any subsequent shipment, each fire extinguisher must be in compliance with the retest requirements of the Occupational Safety and Health Administration Regulations of the Department of Labor, 29 CFR 1910.157;

(4) Specification 2P or 2Q (§§ 178.33 and 178.33a of this subchapter) inner non-refillable metal packagings are authorized as fire extinguishers subject to the following conditions:

(i) The liquid portion of the gas plus any additional liquid or solid may not completely fill the packaging at 55 °C (130 °F);

(ii) Pressure in the packaging must not exceed 1250 kPa (181 psig) at 55 °C (130 °F). If the pressure exceeds 920 kPa (141 psig) at 55 °C (130 °F), but does not exceed 1100 kPa (160 psig) at 55 °C (130 °F), a specification DOT 2P inner metal packaging must be used; if the pressure exceeds 1100 kPa (160 psig) at 55 °C (130 °F), a specification DOT 2Q inner metal packaging must be used. The metal packaging must be capable of withstanding, without bursting, a pressure of one and one-half times the equilibrium pressure of the contents at 55 °C (130 °F); and

(iii) Each completed inner packaging filled for shipment must have been heated until the pressure in the container is equivalent to the equilibrium pressure of the contents at 55 °C (130 °F) without evidence of leakage, distortion, or other defect.

(iv) Specification 2P and 2Q cylinders must be packed in strong non-bulk outer packagings. The outside of the combination packaging must be marked with an indication that the inner packagings conform to the prescribed specifications.

PART 175—CARRIAGE BY AIRCRAFT

26. The authority citation for part 175 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.45 and 1.53.

27. In § 175.10, paragraph (a)(17) is revised to read as follows:

Exceptions for passengers, crewmembers, and air operators.

(a) * * *

(17) A wheelchair or other mobility aid equipped with a lithium ion battery, when carried as checked baggage, provided—

(i) The lithium ion battery must be of a type that successfully passed each test in the UN Manual of Tests and Criteria (IBR; see § 171.7 of this subchapter), as specified in § 173.185 of this subchapter, unless approved by the Associate Administrator;

(ii) The operator must verify that:

(A) Visual inspection of the wheelchair or other mobility aid reveals no obvious defects;

(B) Battery terminals are protected from short circuits (e.g., enclosed within a battery housing);

(C) The battery must be securely attached to the mobility aid; and

(D) Electrical circuits are isolated;

(iii) The wheelchair or other mobility aid must be loaded and stowed in such a manner to prevent its unintentional activation and its battery must be protected from short circuiting;

(iv) The wheelchair or other mobility aid must be protected from damage by the movement of baggage, mail, service items, or other cargo;

(v) Where a lithium ion battery-powered wheelchair or other mobility aid is specifically designed to allow its battery to be removed by the user (e.g., collapsible):

(A) The battery must be removed from the wheelchair or other mobility aid according to instructions provided by the wheelchair or other mobility aid owner or its manufacturer;

(B) The battery must be carried in carry-on baggage only;

(C) Battery terminals must be protected from short circuits (by placement in original retail packaging or otherwise insulating the terminal e.g. by taping over exposed terminals or placing each battery in a separate plastic bag or protective pouch);

(D) The battery must not exceed 25 grams aggregate equivalent lithium content; and

(E) A maximum of one spare battery not exceeding 25 grams aggregate equivalent lithium content or two spares not exceeding 13.5 grams aggregate equivalent lithium content each may be carried;

(vi) The pilot-in-command is advised either orally or in writing, prior to departure, as to the location of the lithium ion battery or batteries aboard the aircraft.

* * * * *

PART 176—CARRIAGE BY VESSEL

28. The authority citation for part 176 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

29. In § 176.905, paragraph (i) is revised to read as follows:

Stowage of motor vehicles or mechanical equipment.
* * * * *

(i) Exceptions—A vehicle or mechanical equipment is excepted from the requirements of this subchapter if any of the following are met:

(1) The vehicle or mechanical equipment has an internal combustion engine using liquid fuel that has a flashpoint less than 38°C (100°F), the fuel tank is empty, and the engine is run until it stalls for lack of fuel;

(2) The vehicle or mechanical equipment has an internal combustion engine using liquid fuel that has a flashpoint of 38°C (100°F) or higher, the fuel tank contains 418 L (110 gallons) of fuel or less, and there are no fuel leaks in any portion of the fuel system;

(3) The vehicle or mechanical equipment is stowed in a hold or compartment designated by the administration of the country in which the vessel is registered as specially designed and approved for vehicles and mechanical equipment and there are no signs of leakage from the battery, engine, fuel cell, compressed gas cylinder or accumulator, or fuel tank, as appropriate. For vehicles with batteries connected and fuel tanks containing gasoline transported by U.S. vessels, see 46 CFR 70.10-1 and 90.10-38;

(4) The vehicle or mechanical equipment is electrically powered solely by wet electric storage batteries (including nonspillable batteries) or sodium batteries; or

(5) The vehicle or mechanical equipment is equipped with liquefied petroleum gas or other compressed gas fuel tanks, the tanks are completely emptied of liquefied or compressed gas and the positive pressure in the tank does not exceed 2 bar (29 psig), the line from the fuel tank to the regulator and the regulator itself is drained of all traces of liquefied or compressed gas, and the fuel shut-off valve is closed.

* * * * *

PART 178—SPECIFICATIONS FOR PACKAGINGS

30. The authority citation for part 178 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

31. In § 178.2, paragraph (c)(1)(ii) is revised to read as follows:

Applicability and responsibility.
* * * * *

(c) * * *

(1) * * *

(ii) Retain copies of each written notification for at least one year from date of issuance; and

* * * * *

Issued in Washington, DC, on May 18, 2012 under authority delegated in 49 CFR part 106.

William Schoonover,

Deputy Associate Administrator, Field Operations, Pipeline and Hazardous Materials Safety Administration.

[FR Doc. 2012-12523 Filed 5-24-12; 8:45 am]

BILLING CODE 4910-60-P