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, 1101-1118 [2012-31242]

Download as PDF Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176 and 178 [Docket No. PHMSA–2009–0126 (HM–215K)] RIN 2137–AE83 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 Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. AGENCY: wreier-aviles on DSK7SPTVN1PROD with FOR FURTHER INFORMATION CONTACT: This document responds to administrative appeals generated as a result of certain amendments adopted in an international harmonization final rule published on January 19, 2011. The January 19, 2011 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 final rule, PHMSA amends 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 and passenger notification of hazardous materials restrictions by operators. Further, this final rule adopts 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, that revised shipper responsibilities related to packaging design variation, manufacturer notification, and recordkeeping requirements for certain packaging types. DATES: Effective: January 1, 2013. SUMMARY: VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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 https:// www.regulations.gov. Docket: You may view the public docket through the Internet at https:// www.regulations.gov or in person at U.S. Department of Transportation, Docket Operations (M–30), 1200 New Jersey Avenue SE., Ground Floor, Room W12–140, Washington, DC 20590–0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. ADDRESSES: Michael Stevens or Vincent Babich, Standards and Rulemaking Division, telephone (202) 366–8553, 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 Aappeals and Public Comments Submitted in Response to HM–215K Rulemaking Actions 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 QuantityMarking 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 Orders 12866 and 13563 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT 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 PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 1101 I. Background PHMSA published a final rule under Docket PHMSA–2009–0126 (HM–215K) on January 19, 2011 [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 the seamless transportation of hazardous materials internationally, to, from, and within the United States. In this final rule, PHMSA is adopting 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 and to public comments submitted in response to corresponding amendments proposed in a notice of proposed rulemaking (NPRM) published on May 25, 2012 [77 FR 31274], also under this docket (PHMSA–2009–0126). Additionally, this document 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 and notification to passengers on hazardous materials restrictions an operator must provide at the point of ticket purchase and flight check-in. Further, PHMSA is adopting 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 [75 FR 5376] under Docket PHMSA–06–25736 (HM–231) that revised shipper responsibilities related to packaging design variation and manufacturer notification recordkeeping requirements for certain packaging types. E:\FR\FM\07JAR2.SGM 07JAR2 1102 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations wreier-aviles on DSK7SPTVN1PROD with II. Administrative Appeals and Public Comments Submitted in Response to HM–215K Rulemaking Actions This final rule addresses administrative appeals submitted in response to the January 19, 2011 final rule and public comments submitted in response to the May 25, 2012 NPRM from the following companies and organizations: Administrative appeals submitted in response to the January 19, 2011 final rule: 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). Public comments submitted in response to the May 25, 2012 NPRM: Amadeus IT Group, S.A. (Amadeus). Air Line Pilots Association International (ALPA). Airlines for America (A4A). Alaska Airlines (Alaska). American Coatings Association (ACA). American Veterinary Distributors Association (AVDA). Association of Hazmat Shippers, Inc. (AHS). Brookstone. Broward Fire Equipment and Service, Inc. (Broward). ChemTel, Inc. (ChemTel). Consumer Healthcare Products Association (CHPA). Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA). Dangerous Goods Advisory Council, Inc. (DGAC). Food Marketing Institute (FMI). Fuel Cell and Hydrogen Energy Association (FCHEA). Healthcare Distribution Management Association (HDMA). HMT Associates, L.L.C. (HMT). Integrated Support Services (ISS). Intel Corporation (Intel). Interactive Travel Services Association (ITSA). International Air Transport Association (IATA). International Vessel Operators Dangerous Goods Association (IVODGA). Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI). Ministry of Commerce, Peoples Republic of China (P.R. China). National Association of Chain Drug Stores (NACDS). National Association of Fire Equipment Distributors (NAFED). Safety Specialists, Inc. (SSI). UPS. Urethane Supply Company (USC). URS Corporation (URS). Utility Solid Waste Activities Group (USWAG). VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 A. Transportation of ORM–D Material A number of administrative appeals concern issues related to our adoption of the international system for the transportation of limited quantity material. Specifically, some appellants are concerned with the eventual phaseout of our domestic system for the transportation of limited quantity material reclassed 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 Department of Transportation (DOT) or United Nations (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. 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, 2011 final rule amended the HMR by phasing out the ORM–D system beginning January 1, 2013, for material transported by aircraft and, beginning 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 itself, 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. It stated we arbitrarily concluded that because there would be no immediate phase-out of the current ORM–D system, there would not PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 be a sizeable impact to companies on the basis that 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. 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. PHMSA held public meetings on this issue in February 2006 and again in 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 (August 24, 2010; 75 FR 52070), 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, E:\FR\FM\07JAR2.SGM 07JAR2 wreier-aviles on DSK7SPTVN1PROD with Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 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. Further, commenters stated that PHMSA should not adopt the international system simply based on the opportunity to align the HMR with international standards. Allowing dual systems indefinitely for offering and transporting 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 the NPRM we proposed to authorize the ORM–D classification and the use of packagings marked ‘‘Consumer commodity, ORM– D’’ until December 31, 2015 for domestic highway, rail, and vessel transportation. Based on the merits of public comment received, we are extending authorization of the ORM–D classification and the use of packagings marked ‘‘Consumer commodity, ORM– D’’ until December 31, 2020 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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 indicated 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 DGAC’s understanding that this requirement refers to the limited quantity marking and not to all markings that may be required by the UN Model Regulations. Its 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 final rule we are accepting DGAC’s appeal and are adopting, as proposed, the revision of § 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 adopted as proposed and is added for clarity to separate limited quantity and ORM overpack marking requirements PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 1103 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 limited quantity marking 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 squareon-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 threeyear 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 twoto three-year transition period for the phase-out of the ORM–D marking, depending on the mode of transportation. In addition, commenters also requested that, for clarification, 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-onpoint 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-onpoint mark containing the ID number to continue until December 31, 2012. Based on the merits of public comment received, we are extending authorization of the ORM–D E:\FR\FM\07JAR2.SGM 07JAR2 1104 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations wreier-aviles on DSK7SPTVN1PROD with classification and the use of packagings marked ‘‘Consumer commodity, ORM– D’’ until December 31, 2020 for domestic highway, rail and vessel transportation. However, in this final rule we are only extending authorization to continue using the square-on-point mark containing the UN identification (ID) number until January 1, 2015, as proposed in the May 25, 2012 NPRM, for other than transportation by aircraft. 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 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, we believed that the prohibition should include spare fuel cell 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 safety 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. In the May 25, 2012 NPRM, we granted the appeal for reconsideration by providing additional opportunity for public comment on the issue. In response, one commenter (ALPA) opposed lifting the prohibition on spare fuel cell cartridges containing Division 2.1 flammable gas for carriage in checked baggage. The remaining commenters (IATA, P.R. China, Intel, DGAC, FCHEA, LSI, and Brookstone) all support lifting the U.S. prohibition and recommend alignment with the ICAO Technical Instructions. Points leading to the Department’s decision are: • Passenger authorizations for hazardous materials are outside the scope of the traditional hazardous materials transportation regulatory system. Many of the critical safety requirements of the HMR that would apply to these items when in VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 transportation as cargo do not apply to passengers, for example, hazard communication, pilot notifications and cargo stowage requirements for hazardous materials. • Passengers are not trained to recognize potential hazards. Although passengers pack, handle, and (in many cases) should communicate the hazardous materials carried onboard to an air carrier, the HMR does not require training for passengers. In most instances, passengers are unlikely to be aware of the safety implications if certain commodities are subject to improper packaging or handling. • Recognition of the limitations of fire suppression and detection systems. We recognize that aircraft fire detection and suppression systems do not prevent fires nor are they designed to completely extinguish fires. • Article Design Management. One example DOT may consider in the future could be similar to is its approach in regulating portable oxygen concentrators (POCs). That is, before any POC design is allowed onboard aircraft, the design must be tested and demonstrate a certain level safety prior to being authorized onboard passengercarrying aircraft. • Cumulative risk of additional passenger authorizations. We believe that when new passenger authorizations are granted consideration must be given to the cumulative risk of the new authorization combined with existing authorizations. Accordingly, we deny Lilliputian’s administrative appeal that requests the HMR be revised to allow spare Division 2.1 fuel cell cartridges 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. Therefore, we PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 are adopting the language proposed in DGAC’s administrative appeal, and revising § 173.167 accordingly. (See the detailed discussion of revisions to § 173.167 in Section V.) 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. In the May 25, 2012 NPRM, we did not propose 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, we stated this exception was not applicable to air transportation. Thus, the amendment is adopted as proposed. F. Materials of Trade Materials of Trade (MOTs) are hazardous materials, other than hazardous waste, that are carried on a motor vehicle: (1) To protect the health and safety of the motor vehicle operator or passengers, such as insect repellant or a fire extinguisher; (2) To support the operation or maintenance of a motor vehicle (including its auxiliary equipment), such as a spare battery or gasoline; or (3) To directly support a principal business of a private motor carrier (including vehicles operated by a rail carrier) that is other than transportation by motor vehicle—for example, landscaping, pest control, painting, plumbing, or welding services. The MOTS exceptions of the HMR generally allow certain hazardous material articles and substances, including ORM–D, to be transported by motor vehicle as part of a business E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations wreier-aviles on DSK7SPTVN1PROD with operation under less regulation without compromising safety. In the May 25, 2012 NPRM, PHMSA proposed to apply the same eligibility to limited quantity packages as it currently does to ORM–D packages as MOTS. PHMSA believes that because small quantities of a limited number of lowrisk materials are eligible in a properly prepared and marked limited quantity package, allowing such packages as MOTS will not compromise transportation safety. One commenter, ChemTel, opposes such authorization on the basis that because the package is not marked with a common name, it somehow compromises safety. On the other hand, USWAG fully supports the concept of limited quantity packages being eligible for transportation as MOTS. PHMSA response. Similar to the applicability of written incident reporting exceptions to limited quantity material, our review of the HMR indicated that we did not amend the MOTS 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 in authorizing limited quantity material to be transported as MOTS in the same manner as always provided for ORM–D. 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 final rule, we are applying the MOTS exceptions to limited quantity packages consistent with the exception provided to ORM–D material. Additionally, we are clarifying that exceptions for limited quantity material also include limited quantity material authorized under § 173.63(b) for certain Division 1.4S explosives, § 173.306 for compressed gases, and § 173.309 for certain fire extinguishers. 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 in either checked or carry-on baggage, or on one’s person. Such provisions form the basis of exceptions for passengers, crewmembers, and air operators provided in § 175.10 of the VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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 final rule, PHMSA is adopting, as proposed, amendments to the HMR that address the potential for unintended activation of all stowed devices on an aircraft and provide for the intentional removal of a lithium ion battery from a device and its stowage in the passenger cabin. As explained in the May 25 NPRM, 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 to carryon baggage only any spare lithium ion batteries used to power portable electronic devices and medical devices. 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). Subsequently, 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 final rule, PHMSA is adopting as proposed similar provisions and revising § 175.10(a)(17) accordingly. 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 PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 1105 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 watthours (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 watthours), no corresponding revision to § 175.10(a)(17) of the HMR is necessary. In this final rule, PHMSA is adopting amendments to the HMR that are consistent with the ICAO DGP/23 Panel recommendations. This final rule also clarifies and corrects some related amendments adopted in the original January 19, 2011 final rule. See the discussion of specific amendments adopted in § 175.10 under the ‘‘V. Section-by-Section Review of Changes’’ section of this rulemaking. IV. Administrative Appeal Submitted in Response to the HM–231 Final Rule In this final rule, 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. E:\FR\FM\07JAR2.SGM 07JAR2 wreier-aviles on DSK7SPTVN1PROD with 1106 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 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 clearly stated 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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 final rule, we are denying DGAC’s appeal to extend the effective date of the rule. However, we are amending § 178.2(c)(1)(ii) of the HMR based on DGAC’s request to revert 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 amending § 173.22(a)(4)(ii) as proposed to require a shipper who sells or transfers a packaging or closes and offers a package for transportation 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. Subsequent downstream offerors of a filled and otherwise properly prepared unaltered package are not required to maintain manufacturer notification (including closure instructions). Additionally, in this final rule, PHMSA is adopting as proposed the clarification 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 PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 compliance and retained in accordance with paragraph (l)’’ of § 178.601. V. Section-by-Section Review of Changes Part 171 Section 171.16 This section prescribes written hazardous material incident reporting requirements. In this final rule, we are adopting as proposed the revision to the paragraph (d) exceptions to reflect the eventual phase-out of the ORM–D system on December 31, 2020 and extending the exception provided for materials classed as ORM–D to hazardous materials authorized for transportation as limited quantity materials under Subparts C through E and Subpart G of Part 173 of the HMR. PHMSA notes that this exception is not applicable to air transportation. See section II.E for a comprehensive discussion of the adopted changes. Part 172 Section 172.102 Section 172.102 prescribes special provisions associated with certain descriptions in the HMT. Special provision 18 is applicable to fire extinguishers. Because the text is now included in § 173.309, this Special provision is redundant and is being removed in this final rule. Section 172.200 Section 172.200 prescribes the applicability of shipping paper requirements for the transportation of hazardous materials. In the January 19, 2011 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 final rule, we are adopting revisions to the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020 in response to the appeal submitted by HDMA. Additionally, we are adopting revisions to paragraph (b)(3) that correct the shipping paper applicability for vessel shipments of ORM–D material that was inadvertently adopted in the January 19, 2011 final rule. Further, we 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 172.315 prescribes the requirements for marking packages which contain limited quantity material. E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations Based on administrative appeals submitted and requests to make the requirements for limited quantity marking more clear, we are adopting as proposed the revisions to § 172.315 that permit the continued use of alternative limited quantity markings (i.e., squareon-point with Identification Number) marking for the same duration as proposed in the May 25, 2012 NPRM, 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 final rule, we are adopting as proposed the revisions to the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020 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 Section 173.6 prescribes exceptions from certain requirements of the HMR for the transportation of hazardous materials defined as materials of trade (MOTS) when transported by motor vehicle. See § 171.8. In this final rule, we are adopting as proposed the revision to paragraph (d) exceptions that reflects the phase-out of the ORM–D system on December 31, 2020 and applying the exception provided ORM– D material to hazardous materials authorized for transportation as a limited quantity under subparts C through E and subpart G of part 173 of the HMR. See section II.F for a comprehensive discussion of these adopted amendments. wreier-aviles on DSK7SPTVN1PROD with Section 173.22 Section 173.22 prescribes shipper responsibilities. In this final rule, PHMSA is responding 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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 final rule, PHMSA is adopting as proposed the revisions to § 173.22(a)(4) by clarifying 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, PHMSA is amending § 173.22(a)(4)(ii) as proposed to require a person who sells or transfers a packaging or closes and offers a package for transportation 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. Subsequent downstream offerors of a filled and otherwise properly prepared unaltered package are not required to maintain manufacturer notification (including closure instructions). See Section III of this preamble for a more comprehensive discussion of these amendments. Section 173.25 Section 173.25 prescribes requirements for the transportation of authorized packages in overpacks used for protection or convenience of handling or to consolidate packages. In this final rule, we are adopting as proposed the revisions to § 173.25(a)(6) by clarifying 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 must be visible as specified in § 173.25(a)(2) and (a)(3). Additionally, we are adopting as proposed the correction of an error in the January 19, 2011 final rule and 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. Section 173.63 Section 173.63 prescribes packaging exceptions for certain Division 1.4S explosive articles authorized for PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 1107 reclassification and transport as ORM– D. Currently, such articles in Division 1.4S may be reclassed as ORM–D and offered for transportation until December 31, 2013. In the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. Section 173.144 Section 173.144 defines ‘‘Other Regulated Materials, ORM–D.’’ In the May 25, 2012 NPRM, PHMSA proposed to extend 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 this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. Sections 173.150, 173.151, 173.152, 173.153, 173.154, and 173.155 Sections 173.150 through 173.155 prescribe 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 the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. This is accomplished by revising 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 the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. E:\FR\FM\07JAR2.SGM 07JAR2 1108 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations Section 173.161 Section 173.161 prescribes packaging requirements for chemical kits and first aid kits containing small amounts of hazardous materials. In the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. Section 173.165 In the January 19, 2011 final rule, a new § 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 the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2020. wreier-aviles on DSK7SPTVN1PROD with Section 173.167 In the January 19, 2011 final rule, a new § 173.167 was added to indicate authorized materials and quantity limits for articles and substances that may be described as ‘‘ID8000, Consumer commodity,’’ and are eligible for transport by aircraft and authorized transportation by all modes. This final rule addresses inconsistencies with the ICAO Technical Instructions brought to our attention in appeals submitted in response to the January 19, 2011 final rule. For example, DGAC pointed out that absorbent material requirements and stack test criteria were not included in the § 173.167 packaging section. Additionally, HMT correctly asserts that Packing Instruction Y963 in the ICAO Technical Instructions only requires that friction-type closures be secured by positive and not secondary means. COSTHA, HMT, and DGAC correctly state that Consumer commodities prepared under the requirements of § 173.167 should not be subject to Subpart B of Part 173. For other than applicable § 173.27(f)(2) provisions, PHMSA agrees. Further, DGAC and HMT suggest the HMR be revised to be consistent with the ICAO Technical Instructions by using the words ‘‘glass,’’ VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 ‘‘earthenware,’’ and ‘‘brittle plastic’’ instead of use of the undefined term ‘‘fragile’’ as proposed in § 173.167(a)(3) and (a)(5). We agree and are replacing the word ‘‘fragile’’ with the terms used in ICAO Technical Instructions. Section 173.230 Section 173.230 prescribes the requirements for fuel cells offered for transportation by all modes. As published in the January 19, 2011 final rule, in paragraph (g) of this section, 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 the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class, for other than air transportation, from December 31, 2013, to December 31, 2020. Section 173.306 Section 173.306 prescribes requirements for limited quantity of compressed gases. In the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class in paragraph (i)(2) from December 31, 2013 to December 31, 2015. In this final rule, we are extending the effective date for expiration of the authorization to reclassify materials to the ORM–D hazard class, for other than air transportation, from December 31, 2013, to December 31, 2020. Section 173.309 Section 173.309 prescribes requirements for fire extinguishers. In this final rule, we are adopting revisions to the entire section for clarity. First, we are relocating the limited quantity requirements and exceptions from paragraph (b) as proposed to new paragraph (d) as we typically indicate regulation first in most sections followed by any exceptions to that regulation. Second, we are relocating regulatory text from § 172.102(c)(1) Special provision 18 to revised paragraph (a) which prescribes the conditions when specification cylinders may be described, offered, and transported in commerce as fire PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 extinguishers. Third, in the May 25 NPRM, we solicited public comment on whether we should consider allowing UN specification cylinders as fire extinguishers in § 173.309. Because we did not receive any comments related to this issue in support or opposition, we are not adopting revisions to this section related to UN pressure vessels at this time. Lastly, we are revising new paragraph (d) 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, and Parts 174 and 177 carrier requirements for limited quantity packages of fire extinguishers. In general, commenters were very supportive of the revisions proposed in the May 25, 2012 NPRM (Broward, ISS, and NAFED). However, Broward and NAFED shared concerns related to scenarios where fire extinguishers were transported in private carriage without an outer packaging. This scenario typically occurs when the articles are being transported to and from a service facility for recharging, hydrostatic testing, and maintenance. In their comments, they request PHMSA allow the practice if the articles are properly secured in the vehicle and are marked and labeled as required by the HMR. PHMSA response. The scenario the commenters describe would be eligible for the Materials of Trade (MOTS) exceptions under § 173.6. Provided each fire extinguisher did not exceed 100 kg (220 lbs) and the aggregate gross weight of all fire extinguishers on the vehicle did not exceed 200 kg (440 lbs), users may use the MOTS exceptions to transport the fire extinguishers unpackaged as prescribed in § 173.6(b)(5). Additionally, the fire extinguishers are required to be marked and labeled in accordance with the HMR as prescribed in § 173.6(c)(3). Users may also transport a combination of MOTS-eligible articles and substances and other hazardous materials on the same motor vehicle, provided the MOTS limits themselves are not exceeded. Lastly, in its comments ISS offered formatting suggestions to aid the reader and to clearly distinguish the limited quantity exceptions in § 173.309(d) intended for all fire extinguishers from those fully regulated provisions for fire extinguishers in § 173.309(a), (b), and (c). PHMSA appreciates the recommendations and, in this final rule, revises the section accordingly. E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations wreier-aviles on DSK7SPTVN1PROD with Part 175 Section 175.10 Lithium ion battery-powered mobility aids. 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). In the final rule, 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. Furthermore, it is the operator’s responsibility 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. Accordingly, revisions to certain amendments adopted in § 175.10(a)(17) of the final rule are 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 as 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 1109 • 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. Lithium battery-powered medical devices. URS commented in response to the May 25, 2012 NPRM regarding such articles also excepted from regulatory requirements under Part 8 of the ICAO Technical Instructions. Because amendments regarding such articles were not proposed in the May 25, 2012 NPRM, PHMSA cannot align with the ICAO Technical Instructions in this final rule. discussed during the August 16, 2012 public meeting on this issue. Section 175.25 Part 178 Section 175.25 prescribes the notification that operators must provide to passengers regarding restrictions on the types of hazardous material they may or may not carry aboard an aircraft on their person or in checked or carryon baggage. The January 19, 2011 final rule revised provisions in § 175.25 applicable to notification and acknowledgement of the types of hazardous materials that a passenger may or may not carry aboard an aircraft by updating the ticketing and flight check-in provisions of the HMR based on current technologies used to perform such functions. Subsequent to issuance of the final rule, the PHMSA and FAA received several administrative appeals, and, at the August 16, 2012 public meeting, received written and oral comments requesting additional time for affected entities to implement the new provisions in a more effective and cooperative manner. PHMSA and FAA agree that a delay in the compliance date of the revised § 175.25 is warranted, particularly if a delay supports the implementation of more effective methods for increasing passenger awareness of, and compliance with, the HMR. Therefore, PHMSA and FAA provide this notification of extending the compliance date until January 1, 2015. Additionally, we acknowledge that notification of interested parties is necessary if we wish to gain widespread support of the collaborative approach to implementing effective and value-added solutions as Section 178.2 Section 178.2 prescribes HMR applicability and responsibility required of packaging manufacturers. In this final rule, 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) to the original one year from date of issuance. Therefore, in this final rule, we are adopting as proposed, PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 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 did not revise 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. We are providing that clarification in this final rule. In addition, PHMSA is adopting as proposed the removal of a heading for each exception criterion in paragraph (i). These headings are not necessary and have resulted in confusion among the regulated community as some of the headings were perceived to be inconsistent with the IMDG Code. E:\FR\FM\07JAR2.SGM 07JAR2 1110 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations amendments to the HMR based on DGAC’s request to revert to the original recordkeeping retention duration for manufacturer notification to one year. Section 178.601 This section prescribes the general requirements for the testing of non-bulk packagings and packages. Paragraph (c)(4)(v) was revised in a final rule published on October 5, 2012 [77 FR 60935] under Docket PHMSA 2012– 0080 (HM–244E) entitled ‘‘Hazardous Materials: Minor Editorial Corrections and Clarifications (RRR). In the final rule, we explained that the term ‘‘different packaging’’ is defined in paragraph (c)(4) and that because paragraph (c)(4)(v) of the definition excluded packagings which differ only in a lesser design height from the category of a ‘‘different packaging,’’ for purposes of clarification, we were revising the paragraph to link the exclusion to the authorized packaging variations that allow a packaging to be manufactured at a lesser design height. We provided the link by adding a reference to the variations in paragraph (g)(3) for single packagings, and to (g)(4) for combination packagings. While our intent was to afford clarification by providing a readerfriendly link to reference the variations in paragraph (g)(3) for single packagings and to paragraph (g)(4) for combination packagings, we received appeals from the Dangerous Goods Advisory Council (DGAC). The appellant stated that by incorporating such a revision, PHMSA, among other subtle differences such as a reduction in the size of marking requirements, placed additional restrictions on packagings that differ only in a lesser design height. The appellant further stated that such revisions constitute a substantive change which requires an opportunity for public notice and comment in accordance with the Administrative Procedure Act. Based on the response we received and upon further review, we are granting this appeal by revising this paragraph to its language prior to the publication of HM–244E, and will consider revisiting the issue at a later time. VI. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule 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 final rule responds to the administrative appeal of certain amendments adopted in final rule PHMSA–2009–0126 (HM–215K) published on January 19, 2011 (76 FR 3308). Additionally, it responds to the administrative appeal 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 final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This final rule is not considered a significant rule under the Regulatory Policies and 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 final rule 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 final rule 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 adopted in this rulemaking reduce compliance costs of the regulated community, and 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 of the amendments adopted: SUMMARY OF COSTS AND BENEFITS Costs Benefits Domestic transportation of ORM–D material. wreier-aviles on DSK7SPTVN1PROD with Issue addressed by amendments to HMR Extending the effective date of eliminating the ORM–D system will result in minor shortterm costs on shippers and carriers who will have to recognize and comply with two marking systems over a longer transition period. Use of the Square-onPoint and ID Number Limited Quantity Marking. Extending 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 period. Extending 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. Extending 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 requirements. VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 E:\FR\FM\07JAR2.SGM Net benefit 07JAR2 $7.3 million over the first two years. Positive. 1111 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations SUMMARY OF COSTS AND BENEFITS—Continued Issue addressed by amendments to HMR Costs Benefits Consumer Commodity Transport by Aircraft. No costs are anticipated as the proposal provides clarification and guidance for existing requirements adopted in the January 19, 2011 Final Rule. No costs are anticipated ................................. Clarifications will reduce compliance costs that result from confusion and misinterpretation of the regulatory requirements. Positive. Increased exceptions for written reporting requirements will reduce the regulatory burden on shippers/carriers of limited quantity materials. Increased materials of trade exceptions will reduce the regulatory burden on shippers/ carriers of limited quantity materials. Reduced costs that shippers will incur as a result of having to retain records for only 90 days as opposed to 730 days. Positive. Incident Reporting for Limited Quantity Material. Materials of Trade Exceptions. No costs are anticipated ................................. Recordkeeping Requirements for Manufacturer Notification *. Costs are expected to be negligible ............... Net benefit Positive. $3.3 million per year. * Administrative appeals submitted in response to the HM–231 Final Rule. wreier-aviles on DSK7SPTVN1PROD with C. Executive Order 13132 This final rule 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). The amendments adopted in this final rule preempt State, local and Indian tribe requirements and do not impose regulation having 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. VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 This final rule addresses all the covered subject items above and preempts State, local, and Indian tribe requirements not meeting the ‘‘substantively the same’’ standard. This final rule 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 April 8, 2013. D. Executive Order 13175 This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (‘‘Consultation and Coordination with Indian Tribal Governments’’). Because this final rule does not have tribal implications, 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 PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 placed it in the docket for this rulemaking. This final rule has been developed in accordance with Executive Order 13272 (‘‘Proper Consideration of Small Entities in Agency Rulemaking’’) and DOT’s procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure 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 final rule identifies a revised information collection request that PHMSA will submit to OMB for approval based on the requirements adopted in this final rule. PHMSA has developed burden estimates to reflect the changes adopted in this final rule, and estimates the information collection and recordkeeping burden as adopted in this final rule to be as follows: • This final rule reduces the OMB Control Number 2137–0572 information collection burden by $1,654,384 annually. PHMSA has submitted 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 E:\FR\FM\07JAR2.SGM 07JAR2 1112 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations Agenda in April and October of each year. The RIN contained in the heading of this document can be used to crossreference this action with the Unified Agenda. H. Unfunded Mandates Reform Act This final rule 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 initial 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. Further, we do not see any additional environmental impacts associated with the amendments proposed in the May 25, 2012 NPRM and adopted unchanged in this final rule regarding the administrative appeals submitted to PHMSA in response to the January 19 final rule. Lastly, we did not receive any public comment related to the potential environmental impact of the proposals made in the May 25, 2012 NPRM. wreier-aviles on DSK7SPTVN1PROD with 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 19477) or you may visit https:// 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 final rule 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 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Reporting and recordkeeping requirements. 49 CFR Part 172 Education, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 175 Air carriers, Hazardous materials transportation, Incorporation by reference, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 176 Hazardous materials transportation, Incorporation by reference, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements. PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 49 CFR Part 178 Hazardous materials transportation, Incorporation by reference, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements. In consideration of the foregoing, PHMSA is amending 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) is revised to read as follows: ■ § 171.16 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. § 172.102 [Amended] 4. In § 172.102, in paragraph (c)(1), Special provision 18 is removed. ■ 5. In § 172.200, paragraph (b)(3) is revised to read as follows: ■ E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations § 172.200 Applicability. * * * * * (b) * * * (3) A limited quantity package unless the material is offered for transportation by aircraft or vessel and, until December 31, 2020, a package of ORM–D material authorized by this subchapter on October 1, 2010, when offered for transportation by highway, rail or vessel. * * * * * ■ 6. In § 172.315, paragraph (d) is revised to read as follows: § 172.315 * * * * (d) Transitional exceptions (1) Alternative markings. Except for transportation by aircraft and until December 31, 2014, 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., squareon-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, 2020, 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(a)(1) is not required to be marked with the limited quantity ‘‘Y’’ marking required by paragraph (b) of this section. ■ 7. In § 172.316, paragraph (a)(2) is revised to read as follows: § 172.316 Packagings containing materials classed as ORM–D. (a) * * * (2) Until December 31, 2020, 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 8. 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. 9. In § 173.6, paragraph (a)(6) is added to read as follows: wreier-aviles on DSK7SPTVN1PROD with ■ Materials of trade exceptions. * * * * * (a) * * * (6) A limited quantity package prepared in accordance with §§ 173.27, VerDate Mar<15>2010 15:18 Jan 04, 2013 10. In § 173.22, paragraph (a)(4) is revised to read as follows: ■ § 173.22 Limited quantities. * § 173.6 173.63(b), 173.150, 173.151(b) and (c), 173.152, 173.153, 173.154, 173.155, 173.161, 173.165, 173.167, 173.306(i), and 173.309(b) 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. * * * * * Jkt 229001 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 package 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 package 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 package. A copy of the manufacturer’s notification, including closure instructions (see § 178.2(c) of this subchapter), unless permanently embossed or printed on the package 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 for transportation in commerce. Subsequent offerors of a filed and otherwise properly prepared unaltered package are not required to maintain manufacturer notification (including closure instructions). (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). * * * * * PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 1113 11. In § 173.25, paragraph (a)(6) is revised and paragraph (a)(7) is added to read as follows: ■ § 173.25 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 the required marking of § 173.4a of this part unless visible. * * * * * ■ 12. In § 173.63, paragraph (b)(1)(ii) is revised to read as follows: § 173.63 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, 2020, 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. * * * * * ■ 13. Section 173.144 is revised to read as follows: § 173.144 Other Regulated Material (ORM)—Definitions. Until December 31, 2020 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 E:\FR\FM\07JAR2.SGM 07JAR2 1114 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations provided in Column (8A) of the § 172.101 Hazardous Materials Table. ■ 14. In § 173.150, paragraph (c) is revised to read as follows: § 173.150 Exceptions for Class 3 (flammable and combustible liquids). * * * * * (c) Consumer commodities. Until December 31, 2020, 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. * * * * * ■ 15. In § 173.151, paragraphs (b) and (c) are revised to read as follows: § 173.151 Exceptions for Class 4. wreier-aviles on DSK7SPTVN1PROD with * * * * * (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 passengercarrying 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: VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 (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, 2020, 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. * * * * * 16. In § 173.152, paragraph (c) is revised to read as follows: ■ § 173.152 Exceptions for Division 5.1 (oxidizers) and Division 5.2 (organic peroxides). * * * * * (c) Consumer commodities. Until December 31, 2020, 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. 17. In § 173.153, paragraph (c) is revised to read as follows: ■ § 173.153 Exceptions for Division 6.1 (poisonous material). * * * * * (c) Consumer commodities. Until December 31, 2020, 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. 18. In § 173.154, paragraph (c) is revised to read as follows: ■ PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 § 173.154 Exceptions for Class 8 (corrosive material). * * * * * (c) Consumer commodities. Until December 31, 2020, 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. In § 173.155, paragraph (c) is revised to read as follows: § 173.155 Exceptions for Class 9 (miscellaneous hazardous materials). * * * * * (c) Consumer commodities. Until December 31, 2020, 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. ■ 20. Section 173.156 is revised to read as follows: § 173.156 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, 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, 2020, 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; E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations (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, 2020, 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, 2020, § 172.316 of this subchapter. ■ 21. In § 173.161, paragraph (d)(2) is revised to read as follows: § 173.161 Chemical kits and first aid kits. wreier-aviles on DSK7SPTVN1PROD with * * * * * (d) * * * (2) Consumer commodities. Until December 31, 2020, 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. In § 173.165, paragraph (c) is revised to read as follows: VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 § 173.165 Polyester resin kits. * * * * * (c) Consumer commodities. Until December 31, 2020, 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. ■ 23. Section 173.167 is revised to read as follows: § 173.167 Consumer commodities. (a) Effective January 1, 2013, a ‘‘consumer commodity’’ (see § 171.8 of this subchapter) when offered for 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 are excepted from labeling and shipping papers when transported by highway or rail. Except for § 173.27(f)(2), packages prepared under the requirements of this section are not subject to Subpart B of this part. Additionally, packages prepared under the requirements of this section may be offered for transportation and transported by all modes. As applicable, 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 nonrefillable 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. Liquids must not completely fill an inner packaging at 55 °C; (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 positive means. The body and closure of any packaging must be constructed so as to be able to PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 1115 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. Glass or earthenware inner packagings 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 the glass or earthenware 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) Drop test capability. Breakable inner packagings (e.g., glass, earthenware, or brittle plastic) must be packaged to prevent failure under conditions normally incident to transport. Packages of consumer commodities as prepared for transport must be capable of withstanding a 1.2 m drop on solid concrete in the position most likely to cause damage. (5) 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: (1) 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; and (2) 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. E:\FR\FM\07JAR2.SGM 07JAR2 1116 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 24. In § 173.230, paragraph (h) is revised to read as follows: ■ § 173.230 Fuel cell cartridges containing hazardous material. * * * * * (h) Consumer commodities. Until December 31, 2020, 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) of this section, 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 by aircraft, and are eligible for the exceptions provided in § 173.156 of this part. * * * * * ■ 25. In § 173.306, paragraph (i)(2) is revised to read as follows: § 173.306 Limited quantities of compressed gases. * * * * * (i) * * * (2) Consumer commodities. Until December 31, 2020, 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. * * * * * ■ 26. Section 173.309 is revised to read as follows: wreier-aviles on DSK7SPTVN1PROD with § 173.309 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, noncorrosive, and commercially free from corroding components; (2) Each fire extinguisher must be charged with a nonflammable, nonpoisonous, 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 VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 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; and (4) Each fire extinguisher must be protected externally by suitable corrosion-resisting coating. (5) Specification 3E and 4BA cylinders must be packed in strong nonbulk outer packagings. The outside of the combination packaging must be marked with an indication that the inner packagings conform to the prescribed specifications. (b) 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: (1) Extinguishing agents must be nonflammable, non-poisonous, and noncorrosive as defined in this subchapter; (2) The liquid portion of the gas plus any additional liquid or solid may not completely fill the packaging at 55 °C (130 °F); (3) 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); (4) 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; and (5) 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. (c) Non-specification cylinders are authorized as fire extinguishers subject to the following conditions: (1) Extinguishing agents must be nonflammable, non-poisonous, and noncorrosive as defined in this subchapter; (2) 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 PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 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; (3) 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; (4) 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; (5) 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; and (6) 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. (d) Limited quantities: Fire extinguishers otherwise conforming to paragraph (a), (b), or (c) of this section and are 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 (d). 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) Extinguishing agents must be nonflammable, non-poisonous, and non- E:\FR\FM\07JAR2.SGM 07JAR2 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations corrosive as defined in this subchapter; and (2) Packages must be marked as specified for limited quantities in § 172.315 of this subchapter. PART 175—CARRIAGE BY AIRCRAFT 27. 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. 28. In § 175.10, paragraph (a)(17) is revised to read as follows: ■ wreier-aviles on DSK7SPTVN1PROD with § 175.10 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 batterypowered 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); VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 (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. * * * * * ■ 29. In § 175.25, paragraphs (b) and (c)(1) are revised to read as follows: § 175.25 Notification at air passenger facilities of hazardous materials restrictions. * * * * * (b) Ticket purchase. An aircraft operator must ensure that information on the types of hazardous materials specified in paragraph (a) of this section a passenger is permitted and forbidden to transport aboard an aircraft is provided at the point of ticket purchase. During the purchase process, regardless if the process is completed remotely (e.g., via the Internet or phone) or when completed at the airport, with or without assistance from another person (e.g., automated check-in facility), the aircraft operator must ensure that information on the types of hazardous materials a passenger is forbidden to transport aboard an aircraft is provided to passengers. Information may be in text or in pictorial form and, effective January 1, 2015, must be such that the final ticket purchase cannot be completed until the passenger or a person acting on the passenger’s behalf has indicated that it understands the restrictions on hazardous materials in baggage. (c) * * * (1) Effective January 1, 2015, when the flight check-in process is conducted remotely (e.g., via the Internet or phone) or when completed at the airport, without assistance from another person (e.g., automated check-in kiosk), the aircraft operator must ensure that information on the types of hazardous materials a passenger is forbidden to transport aboard an aircraft is provided to passengers. Information may be in text or in pictorial form and should be such that the check in process cannot be completed until the passenger or a person acting on the passenger’s behalf has indicated that it understands the restrictions on hazardous materials in baggage. * * * * * PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 1117 PART 176—CARRIAGE BY VESSEL 30. The authority citation for part 176 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. 31. In § 176.905, paragraph (i) is revised to read as follows: ■ § 176.905 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; (3) The vehicle or mechanical equipment is electrically powered solely by wet electric storage batteries (including nonspillable batteries) or sodium batteries; or (4) 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 32. The authority citation for part 178 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. E:\FR\FM\07JAR2.SGM 07JAR2 1118 Federal Register / Vol. 78, No. 4 / Monday, January 7, 2013 / Rules and Regulations 33. In § 178.2, paragraph (c)(1)(ii) is revised to read as follows: ■ § 178.2 § 178.601 ■ Applicability and responsibility. * * * * (c) * * * (1) * * * (ii) Retain copies of each written notification for at least one year from date of issuance; and * * * * * wreier-aviles on DSK7SPTVN1PROD with * VerDate Mar<15>2010 15:18 Jan 04, 2013 Jkt 229001 34. In § 178.601, paragraph (c)(4)(v) is revised to read as follows: General requirements. * * * * * (c) * * * (4) * * * (v) Packagings which differ from the design type only in their lesser design height; or * * * * * PO 00000 Frm 00132 Fmt 4701 Sfmt 9990 Issued in Washington, DC, on December 20, 2012 under authority delegated in 49 CFR part 1. Cynthia Quarterman, Administrator. [FR Doc. 2012–31242 Filed 12–31–12; 4:15 pm] BILLING CODE 4910–60–P E:\FR\FM\07JAR2.SGM 07JAR2

Agencies

[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Rules and Regulations]
[Pages 1101-1118]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31242]

[[Page 1101]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 175, 176 and 178

[Docket No. PHMSA-2009-0126 (HM-215K)]
RIN 2137-AE83

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

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Final rule.

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SUMMARY: This document responds to administrative appeals generated as
a result of certain amendments adopted in an international
harmonization final rule published on January 19, 2011. The January 19,
2011 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 final rule,
PHMSA amends 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 and passenger notification of hazardous materials
restrictions by operators. Further, this final rule adopts 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, that
revised shipper responsibilities related to packaging design variation,
manufacturer notification, and recordkeeping requirements for certain
packaging types.

DATES: Effective: January 1, 2013.

ADDRESSES: 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 https://www.regulations.gov.
Docket: You may view the public docket through the Internet at
https://www.regulations.gov or in person at U.S. Department of
Transportation, Docket Operations (M-30), 1200 New Jersey Avenue SE.,
Ground Floor, Room W12-140, Washington, DC 20590-0001 between 9 a.m.
and 5 p.m. Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Stevens or Vincent Babich,
Standards and Rulemaking Division, telephone (202) 366-8553, 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 Aappeals and Public Comments Submitted in
Response to HM-215K Rulemaking Actions
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
QuantityMarking
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 Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
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

PHMSA published a final rule under Docket PHMSA-2009-0126 (HM-215K)
on January 19, 2011 [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 the seamless transportation of
hazardous materials internationally, to, from, and within the United
States. In this final rule, PHMSA is adopting 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 and to public comments submitted in response to corresponding
amendments proposed in a notice of proposed rulemaking (NPRM) published
on May 25, 2012 [77 FR 31274], also under this docket (PHMSA-2009-
0126). Additionally, this document 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 and notification to passengers on hazardous materials
restrictions an operator must provide at the point of ticket purchase
and flight check-in. Further, PHMSA is adopting 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 [75 FR 5376] under
Docket PHMSA-06-25736 (HM-231) that revised shipper responsibilities
related to packaging design variation and manufacturer notification
recordkeeping requirements for certain packaging types.

[[Page 1102]]

II. Administrative Appeals and Public Comments Submitted in Response to
HM-215K Rulemaking Actions

This final rule addresses administrative appeals submitted in
response to the January 19, 2011 final rule and public comments
submitted in response to the May 25, 2012 NPRM from the following
companies and organizations:

Administrative appeals submitted in response to the January 19,
2011 final rule:
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).
Public comments submitted in response to the May 25, 2012 NPRM:
Amadeus IT Group, S.A. (Amadeus).
Air Line Pilots Association International (ALPA).
Airlines for America (A4A).
Alaska Airlines (Alaska).
American Coatings Association (ACA).
American Veterinary Distributors Association (AVDA).
Association of Hazmat Shippers, Inc. (AHS).
Brookstone.
Broward Fire Equipment and Service, Inc. (Broward).
ChemTel, Inc. (ChemTel).
Consumer Healthcare Products Association (CHPA).
Council on Safe Transportation of Hazardous Articles, Inc.
(COSTHA).
Dangerous Goods Advisory Council, Inc. (DGAC).
Food Marketing Institute (FMI).
Fuel Cell and Hydrogen Energy Association (FCHEA).
Healthcare Distribution Management Association (HDMA).
HMT Associates, L.L.C. (HMT).
Integrated Support Services (ISS).
Intel Corporation (Intel).
Interactive Travel Services Association (ITSA).
International Air Transport Association (IATA).
International Vessel Operators Dangerous Goods Association
(IVODGA).
Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI).
Ministry of Commerce, Peoples Republic of China (P.R. China).
National Association of Chain Drug Stores (NACDS).
National Association of Fire Equipment Distributors (NAFED).
Safety Specialists, Inc. (SSI).
UPS.
Urethane Supply Company (USC).
URS Corporation (URS).
Utility Solid Waste Activities Group (USWAG).

A. Transportation of ORM-D Material

A number of administrative appeals concern issues related to our
adoption of the international system for the 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 reclassed 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 Department of
Transportation (DOT) or United Nations (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.
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 Sec. 171.8 for the
definition of ``consumer commodity.'' The January 19, 2011 final rule
amended the HMR by phasing out the ORM-D system beginning January 1,
2013, for material transported by aircraft and, beginning 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 itself, 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. It 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 that 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.
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. PHMSA
held public meetings on this issue in February 2006 and again in 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 (August 24, 2010; 75
FR 52070), 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,

[[Page 1103]]

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. Further, commenters stated that PHMSA should not adopt the
international system simply based on the opportunity to align the HMR
with international standards.
Allowing dual systems indefinitely for offering and transporting
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 the NPRM we proposed to authorize the ORM-D
classification and the use of packagings marked ``Consumer commodity,
ORM-D'' until December 31, 2015 for domestic highway, rail, and vessel
transportation.
Based on the merits of public comment received, we are extending
authorization of the ORM-D classification and the use of packagings
marked ``Consumer commodity, ORM-D'' until December 31, 2020 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 Sec. 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 indicated 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 DGAC's understanding that this requirement refers to the limited
quantity marking and not to all markings that may be required by the UN
Model Regulations. Its 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 Sec. 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 Sec. 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
final rule we are accepting DGAC's appeal and are adopting, as
proposed, the revision of Sec. 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 Sec. 173.25(a)(7) is adopted as proposed
and is 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, Sec. 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 limited quantity marking 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. In
addition, commenters also requested that, for clarification, any
transition periods be included in Sec. 171.14 (transitional
provisions) and Sec. 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 Sec. 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.
Based on the merits of public comment received, we are extending
authorization of the ORM-D

[[Page 1104]]

classification and the use of packagings marked ``Consumer commodity,
ORM-D'' until December 31, 2020 for domestic highway, rail and vessel
transportation. However, in this final rule we are only extending
authorization to continue using the square-on-point mark containing the
UN identification (ID) number until January 1, 2015, as proposed in the
May 25, 2012 NPRM, for other than transportation by aircraft.

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
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, we believed that the prohibition should
include spare fuel cell 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 safety
risks posed are of concern. In their administrative appeals, FCHEA and
LSI requested that PHMSA revise Sec. 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.
In the May 25, 2012 NPRM, we granted the appeal for reconsideration
by providing additional opportunity for public comment on the issue. In
response, one commenter (ALPA) opposed lifting the prohibition on spare
fuel cell cartridges containing Division 2.1 flammable gas for carriage
in checked baggage. The remaining commenters (IATA, P.R. China, Intel,
DGAC, FCHEA, LSI, and Brookstone) all support lifting the U.S.
prohibition and recommend alignment with the ICAO Technical
Instructions. Points leading to the Department's decision are:
Passenger authorizations for hazardous materials are
outside the scope of the traditional hazardous materials transportation
regulatory system. Many of the critical safety requirements of the HMR
that would apply to these items when in transportation as cargo do not
apply to passengers, for example, hazard communication, pilot
notifications and cargo stowage requirements for hazardous materials.
Passengers are not trained to recognize potential hazards.
Although passengers pack, handle, and (in many cases) should
communicate the hazardous materials carried onboard to an air carrier,
the HMR does not require training for passengers. In most instances,
passengers are unlikely to be aware of the safety implications if
certain commodities are subject to improper packaging or handling.
Recognition of the limitations of fire suppression and
detection systems. We recognize that aircraft fire detection and
suppression systems do not prevent fires nor are they designed to
completely extinguish fires.
Article Design Management. One example DOT may consider in
the future could be similar to is its approach in regulating portable
oxygen concentrators (POCs). That is, before any POC design is allowed
onboard aircraft, the design must be tested and demonstrate a certain
level safety prior to being authorized onboard passenger-carrying
aircraft.
Cumulative risk of additional passenger authorizations. We
believe that when new passenger authorizations are granted
consideration must be given to the cumulative risk of the new
authorization combined with existing authorizations.
Accordingly, we deny Lilliputian's administrative appeal that
requests the HMR be revised to allow spare Division 2.1 fuel cell
cartridges 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 Sec. 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 Sec. 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. Therefore, we are adopting the language
proposed in DGAC's administrative appeal, and revising Sec. 173.167
accordingly. (See the detailed discussion of revisions to Sec. 173.167
in Section V.)

E. Incident Reporting for Limited Quantity Material

The detailed hazardous materials incident reporting requirements of
the HMR allow for exceptions from these requirements. Specifically,
Sec. 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. In the May 25, 2012
NPRM, we did not propose 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, we stated this exception was not
applicable to air transportation. Thus, the amendment is adopted as
proposed.

F. Materials of Trade

Materials of Trade (MOTs) are hazardous materials, other than
hazardous waste, that are carried on a motor vehicle: (1) To protect
the health and safety of the motor vehicle operator or passengers, such
as insect repellant or a fire extinguisher; (2) To support the
operation or maintenance of a motor vehicle (including its auxiliary
equipment), such as a spare battery or gasoline; or (3) To directly
support a principal business of a private motor carrier (including
vehicles operated by a rail carrier) that is other than transportation
by motor vehicle--for example, landscaping, pest control, painting,
plumbing, or welding services. The MOTS exceptions of the HMR generally
allow certain hazardous material articles and substances, including
ORM-D, to be transported by motor vehicle as part of a business

[[Page 1105]]

operation under less regulation without compromising safety.
In the May 25, 2012 NPRM, PHMSA proposed to apply the same
eligibility to limited quantity packages as it currently does to ORM-D
packages as MOTS. PHMSA believes that because small quantities of a
limited number of low-risk materials are eligible in a properly
prepared and marked limited quantity package, allowing such packages as
MOTS will not compromise transportation safety. One commenter, ChemTel,
opposes such authorization on the basis that because the package is not
marked with a common name, it somehow compromises safety. On the other
hand, USWAG fully supports the concept of limited quantity packages
being eligible for transportation as MOTS.
PHMSA response.
Similar to the applicability of written incident reporting
exceptions to limited quantity material, our review of the HMR
indicated that we did not amend the MOTS 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 in authorizing
limited quantity material to be transported as MOTS in the same manner
as always provided for ORM-D. 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 Sec. 171.8 for the definition of ``consumer commodity.''
In this final rule, we are applying the MOTS exceptions to limited
quantity packages consistent with the exception provided to ORM-D
material. Additionally, we are clarifying that exceptions for limited
quantity material also include limited quantity material authorized
under Sec. 173.63(b) for certain Division 1.4S explosives, Sec.
173.306 for compressed gases, and Sec. 173.309 for certain fire
extinguishers.

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 in either checked or carry-on baggage, or on one's person.
Such provisions form the basis of exceptions for passengers,
crewmembers, and air operators provided in Sec. 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 final rule, PHMSA is adopting, as
proposed, amendments to the HMR that address the potential for
unintended activation of all stowed devices on an aircraft and provide
for the intentional removal of a lithium ion battery from a device and
its stowage in the passenger cabin. As explained in the May 25 NPRM,
PHMSA intends to address remaining Part 8 and Sec. 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 to carry-on baggage only any spare lithium ion batteries used to
power portable electronic devices and medical devices. 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). Subsequently, 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 final rule, PHMSA is
adopting as proposed similar provisions and revising Sec.
175.10(a)(17) accordingly.
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 Sec. 175.10(a)(17) of the HMR is necessary.
In this final rule, PHMSA is adopting amendments to the HMR that
are consistent with the ICAO DGP/23 Panel recommendations. This final
rule also clarifies and corrects some related amendments adopted in the
original January 19, 2011 final rule. See the discussion of specific
amendments adopted in Sec. 175.10 under the ``V. Section-by-Section
Review of Changes'' section of this rulemaking.

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

In this final rule, 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 Sec. 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 Sec. 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.

[[Page 1106]]

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 clearly stated 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 final rule, we are denying DGAC's appeal to
extend the effective date of the rule. However, we are amending Sec.
178.2(c)(1)(ii) of the HMR based on DGAC's request to revert 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 amending Sec. 173.22(a)(4)(ii) as proposed to
require a shipper who sells or transfers a packaging or closes and
offers a package for transportation 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.
Subsequent downstream offerors of a filled and otherwise properly
prepared unaltered package are not required to maintain manufacturer
notification (including closure instructions).
Additionally, in this final rule, PHMSA is adopting as proposed the
clarification 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 Sec. 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 Sec. 178.601(g)(1) in the
September 30, 2010 final rule as DGAC asserts; we did correct
punctuation in Sec. Sec. 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 Sec. 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 Sec.
178.601.

V. Section-by-Section Review of Changes

Part 171

Section 171.16
This section prescribes written hazardous material incident
reporting requirements. In this final rule, we are adopting as proposed
the revision to the paragraph (d) exceptions to reflect the eventual
phase-out of the ORM-D system on December 31, 2020 and extending the
exception provided for materials classed as ORM-D to hazardous
materials authorized for transportation as limited quantity materials
under Subparts C through E and Subpart G of Part 173 of the HMR. PHMSA
notes that this exception is not applicable to air transportation. See
section II.E for a comprehensive discussion of the adopted changes.

Part 172

Section 172.102
Section 172.102 prescribes special provisions associated with
certain descriptions in the HMT. Special provision 18 is applicable to
fire extinguishers. Because the text is now included in Sec. 173.309,
this Special provision is redundant and is being removed in this final
rule.
Section 172.200
Section 172.200 prescribes the applicability of shipping paper
requirements for the transportation of hazardous materials. In the
January 19, 2011 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 final rule, we are adopting
revisions to the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class from December 31, 2013
to December 31, 2020 in response to the appeal submitted by HDMA.
Additionally, we are adopting revisions to paragraph (b)(3) that
correct the shipping paper applicability for vessel shipments of ORM-D
material that was inadvertently adopted in the January 19, 2011 final
rule. Further, we 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 172.315 prescribes the requirements for marking packages
which contain limited quantity material.

[[Page 1107]]

Based on administrative appeals submitted and requests to make the
requirements for limited quantity marking more clear, we are adopting
as proposed the revisions to Sec. 172.315 that permit the continued
use of alternative limited quantity markings (i.e., square-on-point
with Identification Number) marking for the same duration as proposed
in the May 25, 2012 NPRM, 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 final rule, we are adopting as proposed the revisions to the
effective date for expiration of the authorization to reclassify
materials to the ORM-D hazard class from December 31, 2013 to December
31, 2020 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
Section 173.6 prescribes exceptions from certain requirements of
the HMR for the transportation of hazardous materials defined as
materials of trade (MOTS) when transported by motor vehicle. See Sec.
171.8. In this final rule, we are adopting as proposed the revision to
paragraph (d) exceptions that reflects the phase-out of the ORM-D
system on December 31, 2020 and applying the exception provided ORM-D
material to hazardous materials authorized for transportation as a
limited quantity under subparts C through E and subpart G of part 173
of the HMR. See section II.F for a comprehensive discussion of these
adopted amendments.
Section 173.22
Section 173.22 prescribes shipper responsibilities. In this final
rule, PHMSA is responding 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 Sec.
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 final rule, PHMSA is adopting as proposed the revisions to
Sec. 173.22(a)(4) by clarifying 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 Sec. 173.22(a)(4)
(shipper responsibilities) if such information is permanently embossed
or printed on the packaging. Additionally, PHMSA is amending Sec.
173.22(a)(4)(ii) as proposed to require a person who sells or transfers
a packaging or closes and offers a package for transportation 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. Subsequent downstream offerors of a filled
and otherwise properly prepared unaltered package are not required to
maintain manufacturer notification (including closure instructions).
See Section III of this preamble for a more comprehensive discussion of
these amendments.
Section 173.25
Section 173.25 prescribes requirements for the transportation of
authorized packages in overpacks used for protection or convenience of
handling or to consolidate packages. In this final rule, we are
adopting as proposed the revisions to Sec. 173.25(a)(6) by clarifying
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
must be visible as specified in Sec. 173.25(a)(2) and (a)(3).
Additionally, we are adopting as proposed the correction of an error in
the January 19, 2011 final rule and 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.
Section 173.63
Section 173.63 prescribes packaging exceptions for certain Division
1.4S explosive articles authorized for reclassification and transport
as ORM-D. Currently, such articles in Division 1.4S may be reclassed as
ORM-D and offered for transportation until December 31, 2013. In the
May 25, 2012 NPRM, PHMSA proposed to extend the effective date for
expiration of the authorization to reclassify materials to the ORM-D
hazard class from December 31, 2013 to December 31, 2015. In this final
rule, we are extending the effective date for expiration of the
authorization to reclassify materials to the ORM-D hazard class from
December 31, 2013 to December 31, 2020.
Section 173.144
Section 173.144 defines ``Other Regulated Materials, ORM-D.'' In
the May 25, 2012 NPRM, PHMSA proposed to extend 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 this final rule, we are
extending the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class from December 31, 2013
to December 31, 2020.
Sections 173.150, 173.151, 173.152, 173.153, 173.154, and 173.155
Sections 173.150 through 173.155 prescribe 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 the May 25, 2012 NPRM, PHMSA
proposed to extend the effective date for expiration of the
authorization to reclassify materials to the ORM-D hazard class from
December 31, 2013 to December 31, 2015. In this final rule, we are
extending the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class from December 31, 2013
to December 31, 2020. This is accomplished by revising 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 the May 25, 2012 NPRM, PHMSA proposed
to extend the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class from December 31, 2013
to December 31, 2015. In this final rule, we are extending the
effective date for expiration of the authorization to reclassify
materials to the ORM-D hazard class from December 31, 2013 to December
31, 2020.

[[Page 1108]]

Section 173.161
Section 173.161 prescribes packaging requirements for chemical kits
and first aid kits containing small amounts of hazardous materials. In
the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for
expiration of the authorization to reclassify materials to the ORM-D
hazard class from December 31, 2013 to December 31, 2015. In this final
rule, we are extending the effective date for expiration of the
authorization to reclassify materials to the ORM-D hazard class from
December 31, 2013 to December 31, 2020.
Section 173.165
In the January 19, 2011 final rule, a new Sec. 173.165 was added
to prescribe packaging and other requirements for ``Polyester resin
kits, UN3269'' formerly contained in Sec. 172.102, special provision
40, and Sec. 173.152(b)(4) of the HMR. In the May 25, 2012 NPRM, PHMSA
proposed to extend the effective date for expiration of the
authorization to reclassify materials to the ORM-D hazard class from
December 31, 2013 to December 31, 2015. In this final rule, we are
extending the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class from December 31, 2013
to December 31, 2020.
Section 173.167
In the January 19, 2011 final rule, a new Sec. 173.167 was added
to indicate authorized materials and quantity limits for articles and
substances that may be described as ``ID8000, Consumer commodity,'' and
are eligible for transport by aircraft and authorized transportation by
all modes. This final rule addresses inconsistencies with the ICAO
Technical Instructions brought to our attention in appeals submitted in
response to the January 19, 2011 final rule. For example, DGAC pointed
out that absorbent material requirements and stack test criteria were
not included in the Sec. 173.167 packaging section. Additionally, HMT
correctly asserts that Packing Instruction Y963 in the ICAO Technical
Instructions only requires that friction-type closures be secured by
positive and not secondary means. COSTHA, HMT, and DGAC correctly state
that Consumer commodities prepared under the requirements of Sec.
173.167 should not be subject to Subpart B of Part 173. For other than
applicable Sec. 173.27(f)(2) provisions, PHMSA agrees. Further, DGAC
and HMT suggest the HMR be revised to be consistent with the ICAO
Technical Instructions by using the words ``glass,'' ``earthenware,''
and ``brittle plastic'' instead of use of the undefined term
``fragile'' as proposed in Sec. 173.167(a)(3) and (a)(5). We agree and
are replacing the word ``fragile'' with the terms used in ICAO
Technical Instructions.
Section 173.230
Section 173.230 prescribes the requirements for fuel cells offered
for transportation by all modes. As published in the January 19, 2011
final rule, in paragraph (g) of this section, 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 the May 25, 2012 NPRM, PHMSA
proposed to extend the effective date for expiration of the
authorization to reclassify materials to the ORM-D hazard class from
December 31, 2013 to December 31, 2015. In this final rule, we are
extending the effective date for expiration of the authorization to
reclassify materials to the ORM-D hazard class, for other than air
transportation, from December 31, 2013, to December 31, 2020.
Section 173.306
Section 173.306 prescribes requirements for limited quantity of
compressed gases. In the May 25, 2012 NPRM, PHMSA proposed to extend
the effective date for expiration of the authorization to reclassify
materials to the ORM-D hazard class in paragraph (i)(2) from December
31, 2013 to December 31, 2015. In this final rule, we are extending the
effective date for expiration of the authorization to reclassify
materials to the ORM-D hazard class, for other than air transportation,
from December 31, 2013, to December 31, 2020.
Section 173.309
Section 173.309 prescribes requirements for fire extinguishers. In
this final rule, we are adopting revisions to the entire section for
clarity. First, we are relocating the limited quantity requirements and
exceptions from paragraph (b) as proposed to new paragraph (d) as we
typically indicate regulation first in most sections followed by any
exceptions to that regulation. Second, we are relocating regulatory
text from Sec. 172.102(c)(1) Special provision 18 to revised paragraph
(a) which prescribes the conditions when specification cylinders may be
described, offered, and transported in commerce as fire extinguishers.
Third, in the May 25 NPRM, we solicited public comment on whether we
should consider allowing UN specification cylinders as fire
extinguishers in Sec. 173.309. Because we did not receive any comments
related to this issue in support or opposition, we are not adopting
revisions to this section related to UN pressure vessels at this time.
Lastly, we are revising new paragraph (d) by excepting a limited
quantity package of fire extinguishers from shipping papers when
transported by highway or rail if marked in accordance with Sec.
172.315. This exception is provided in addition to the existing HMR
exceptions from labeling (unless offered for transportation by
aircraft), placarding, and Parts 174 and 177 carrier requirements for
limited quantity packages of fire extinguishers.
In general, commenters were very supportive of the revisions
proposed in the May 25, 2012 NPRM (Broward, ISS, and NAFED). However,
Broward and NAFED shared concerns related to scenarios where fire
extinguishers were transported in private carriage without an outer
packaging. This scenario typically occurs when the articles are being
transported to and from a service facility for recharging, hydrostatic
testing, and maintenance. In their comments, they request PHMSA allow
the practice if the articles are properly secured in the vehicle and
are marked and labeled as required by the HMR.
PHMSA response. The scenario the commenters describe would be
eligible for the Materials of Trade (MOTS) exceptions under Sec.
173.6. Provided each fire extinguisher did not exceed 100 kg (220 lbs)
and the aggregate gross weight of all fire extinguishers on the vehicle
did not exceed 200 kg (440 lbs), users may use the MOTS exceptions to
transport the fire extinguishers unpackaged as prescribed in Sec.
173.6(b)(5). Additionally, the fire extinguishers are required to be
marked and labeled in accordance with the HMR as prescribed in Sec.
173.6(c)(3). Users may also transport a combination of MOTS-eligible
articles and substances and other hazardous materials on the same motor
vehicle, provided the MOTS limits themselves are not exceeded.
Lastly, in its comments ISS offered formatting suggestions to aid
the reader and to clearly distinguish the limited quantity exceptions
in Sec. 173.309(d) intended for all fire extinguishers from those
fully regulated provisions for fire extinguishers in Sec. 173.309(a),
(b), and (c). PHMSA appreciates the recommendations and, in this final
rule, revises the section accordingly.

[[Page 1109]]

Part 175

Section 175.10
Lithium ion battery-powered mobility aids. 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 Sec. 175.10(a)(15) and (a)(16), and the
provisions provided for the carriage of portable electronic devices
powered by lithium ion batteries in Sec. 175.10(a)(17) (now Sec.
175.10(a)(18)), the final rule merged applicable provisions for the
transportation of lithium ion battery-powered mobility aids into a new
Sec. 175.10(a)(17). In the final rule, 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. Furthermore, it is the operator's responsibility 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. Accordingly, revisions
to certain amendments adopted in Sec. 175.10(a)(17) of the final rule
are 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 as 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.
Lithium battery-powered medical devices. URS commented in response
to the May 25, 2012 NPRM regarding such articles also excepted from
regulatory requirements under Part 8 of the ICAO Technical
Instructions. Because amendments regarding such articles were not
proposed in the May 25, 2012 NPRM, PHMSA cannot align with the ICAO
Technical Instructions in this final rule.
Section 175.25
Section 175.25 prescribes the notification that operators must
provide to passengers regarding restrictions on the types of hazardous
material they may or may not carry aboard an aircraft on their person
or in checked or carry-on baggage. The January 19, 2011 final rule
revised provisions in Sec. 175.25 applicable to notification and
acknowledgement of the types of hazardous materials that a passenger
may or may not carry aboard an aircraft by updating the ticketing and
flight check-in provisions of the HMR based on current technologies
used to perform such functions.
Subsequent to issuance of the final rule, the PHMSA and FAA
received several administrative appeals, and, at the August 16, 2012
public meeting, received written and oral comments requesting
additional time for affected entities to implement the new provisions
in a more effective and cooperative manner.
PHMSA and FAA agree that a delay in the compliance date of the
revised Sec. 175.25 is warranted, particularly if a delay supports the
implementation of more effective methods for increasing passenger
awareness of, and compliance with, the HMR. Therefore, PHMSA and FAA
provide this notification of extending the compliance date until
January 1, 2015. Additionally, we acknowledge that notification of
interested parties is necessary if we wish to gain widespread support
of the collaborative approach to implementing effective and value-added
solutions as discussed during the August 16, 2012 public meeting on
this issue.

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 did not revise 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.
We are providing that clarification in this final rule. In addition,
PHMSA is adopting as proposed the removal of a heading for each
exception criterion in paragraph (i). These headings are not necessary
and have resulted in confusion among the regulated community 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 final rule, 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 Sec. 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 Sec. 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
Sec. 178.2(c)(1)(ii) to the original one year from date of issuance.
Therefore, in this final rule, we are adopting as proposed,

[[Page 1110]]

amendments to the HMR based on DGAC's request to revert to the original
recordkeeping retention duration for manufacturer notification to one
year.
Section 178.601
This section prescribes the general requirements for the testing of
non-bulk packagings and packages. Paragraph (c)(4)(v) was revised in a
final rule published on October 5, 2012 [77 FR 60935] under Docket
PHMSA 2012-0080 (HM-244E) entitled ``Hazardous Materials: Minor
Editorial Corrections and Clarifications (RRR). In the final rule, we
explained that the term ``different packaging'' is defined in paragraph
(c)(4) and that because paragraph (c)(4)(v) of the definition excluded
packagings which differ only in a lesser design height from the
category of a ``different packaging,'' for purposes of clarification,
we were revising the paragraph to link the exclusion to the authorized
packaging variations that allow a packaging to be manufactured at a
lesser design height. We provided the link by adding a reference to the
variations in paragraph (g)(3) for single packagings, and to (g)(4) for
combination packagings.
While our intent was to afford clarification by providing a reader-
friendly link to reference the variations in paragraph (g)(3) for
single packagings and to paragraph (g)(4) for combination packagings,
we received appeals from the Dangerous Goods Advisory Council (DGAC).
The appellant stated that by incorporating such a revision, PHMSA,
among other subtle differences such as a reduction in the size of
marking requirements, placed additional restrictions on packagings that
differ only in a lesser design height. The appellant further stated
that such revisions constitute a substantive change which requires an
opportunity for public notice and comment in accordance with the
Administrative Procedure Act. Based on the response we received and
upon further review, we are granting this appeal by revising this
paragraph to its language prior to the publication of HM-244E, and will
consider revisiting the issue at a later time.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This final rule 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 final rule responds to the administrative appeal of certain
amendments adopted in final rule PHMSA-2009-0126 (HM-215K) published on
January 19, 2011 (76 FR 3308). Additionally, it responds to the
administrative appeal 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 final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. This final rule is not
considered a significant rule under the Regulatory Policies and
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 final rule 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 final rule 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 adopted in this rulemaking reduce
compliance costs of the regulated community, and 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
of the amendments adopted:

Summary of Costs and Benefits
----------------------------------------------------------------------------------------------------------------
Issue addressed by amendments to
HMR Costs Benefits Net benefit
----------------------------------------------------------------------------------------------------------------
Domestic transportation of ORM-D Extending the effective Extending the effective $7.3 million over
material. date of eliminating the date of eliminating the the first two
ORM-D system will result ORM-D system will allow years.
in minor short-term costs companies to deplete
on shippers and carriers stocks of hazard
who will have to communication materials
recognize and comply with and pre-printed packaging
two marking systems over with the ORM-D markings
a longer transition on them. Clarifications
period. will reduce compliance
costs that result from
confusion and
misinterpretation of the
regulatory requirements.
Use of the Square-on-Point and ID Extending the effective Extending the effective Positive.
Number Limited Quantity Marking. date of eliminating the date of eliminating the
revised limited quantity revised limited quantity
marking system will marking system will allow
result in minor short- companies to deplete
term costs on shippers stocks of hazard
and carriers who will communication materials
have to recognize and and pre-printed packaging
comply with two marking with the ORM-D markings
systems over a longer on them. Clarifications
transition period. will reduce compliance
costs that result from
confusion and
misinterpretation of the
regulatory requirements.

[[Page 1111]]

Consumer Commodity Transport by No costs are anticipated Clarifications will reduce Positive.
Aircraft. as the proposal provides compliance costs that
clarification and result from confusion and
guidance for existing misinterpretation of the
requirements adopted in regulatory requirements.
the January 19, 2011
Final Rule.
Incident Reporting for Limited No costs are anticipated.. Increased exceptions for Positive.
Quantity Material. written reporting
requirements will reduce
the regulatory burden on
shippers/carriers of
limited quantity
materials.
Materials of Trade Exceptions..... No costs are anticipated.. Increased materials of Positive.
trade exceptions will
reduce the regulatory
burden on shippers/
carriers of limited
quantity materials.
Recordkeeping Requirements for Costs are expected to be Reduced costs that $3.3 million per
Manufacturer Notification *. negligible. shippers will incur as a year.
result of having to
retain records for only
90 days as opposed to 730
days.
----------------------------------------------------------------------------------------------------------------
* Administrative appeals submitted in response to the HM-231 Final Rule.

C. Executive Order 13132

This final rule 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). The amendments adopted in this
final rule preempt State, local and Indian tribe requirements and do
not impose regulation having 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 final rule addresses all the covered subject items above and
preempts State, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. This final rule 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 April 8,
2013.

D. Executive Order 13175

This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications, 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.
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure 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 final rule identifies a revised information collection request
that PHMSA will submit to OMB for approval based on the requirements
adopted in this final rule. PHMSA has developed burden estimates to
reflect the changes adopted in this final rule, and estimates the
information collection and recordkeeping burden as adopted in this
final rule to be as follows:
This final rule reduces the OMB Control Number 2137-0572
information collection burden by $1,654,384 annually. PHMSA has
submitted 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

[[Page 1112]]

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 final rule 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 initial 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. Further, we
do not see any additional environmental impacts associated with the
amendments proposed in the May 25, 2012 NPRM and adopted unchanged in
this final rule regarding the administrative appeals submitted to PHMSA
in response to the January 19 final rule. Lastly, we did not receive
any public comment related to the potential environmental impact of the
proposals made in the May 25, 2012 NPRM.

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 https://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 final rule 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

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.

49 CFR Part 172

Education, Hazardous materials transportation, Hazardous waste,
Incorporation by reference, Labeling, Markings, Packaging and
containers, Reporting and recordkeeping requirements.

49 CFR Part 173

Hazardous materials transportation, Incorporation by reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements, Uranium.

49 CFR Part 175

Air carriers, Hazardous materials transportation, Incorporation by
reference, Radioactive materials, Reporting and recordkeeping
requirements.

49 CFR Part 176

Hazardous materials transportation, Incorporation by reference,
Maritime carriers, Radioactive materials, Reporting and recordkeeping
requirements.

49 CFR Part 178

Hazardous materials transportation, Incorporation by reference,
Motor vehicle safety, Packaging and containers, Reporting and
recordkeeping requirements.
In consideration of the foregoing, PHMSA is amending Title 49,
Subtitle B, Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
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.

0
2. In Sec. 171.16, paragraph (d)(2) is revised to read as follows:

Sec. 171.16 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 Sec. 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

0
3. The authority citation for part 172 continues to read as follows:

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

Sec. 172.102 [Amended]

0
4. In Sec. 172.102, in paragraph (c)(1), Special provision 18 is
removed.
0
5. In Sec. 172.200, paragraph (b)(3) is revised to read as follows:

[[Page 1113]]

Sec. 172.200 Applicability.

* * * * *
(b) * * *
(3) A limited quantity package unless the material is offered for
transportation by aircraft or vessel and, until December 31, 2020, a
package of ORM-D material authorized by this subchapter on October 1,
2010, when offered for transportation by highway, rail or vessel.
* * * * *

0
6. In Sec. 172.315, paragraph (d) is revised to read as follows:

Sec. 172.315 Limited quantities.

* * * * *
(d) Transitional exceptions (1) Alternative markings. Except for
transportation by aircraft and until December 31, 2014, 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, 2020, a packaging marked in accordance with
Sec. 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 Sec. 172.316(a)(1) is not required to be
marked with the limited quantity ``Y'' marking required by paragraph
(b) of this section.

0
7. In Sec. 172.316, paragraph (a)(2) is revised to read as follows:

Sec. 172.316 Packagings containing materials classed as ORM-D.

(a) * * *
(2) Until December 31, 2020, ORM-D for an ORM-D material that is
packaged in accordance with Sec. Sec. 173.63, 173.150 through 173.156
and 173.306.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

0
8. 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.

0
9. In Sec. 173.6, paragraph (a)(6) is added to read as follows:

Sec. 173.6 Materials of trade exceptions.

* * * * *
(a) * * *
(6) A limited quantity package prepared in accordance with
Sec. Sec. 173.27, 173.63(b), 173.150, 173.151(b) and (c), 173.152,
173.153, 173.154, 173.155, 173.161, 173.165, 173.167, 173.306(i), and
173.309(b) 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.
* * * * *

0
10. In Sec. 173.22, paragraph (a)(4) is revised to read as follows:

Sec. 173.22 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 Sec. 178.2 of this subchapter.
(ii) For other than a bulk package or a cylinder, a person must
retain a copy of the manufacturer's notification, including closure
instructions (see Sec. 178.2(c) of this subchapter). For a bulk
package or a cylinder, a person must retain a copy of the
manufacturer's notification, including closure instructions (see Sec.
178.2(c) of this subchapter), unless permanently embossed or printed on
the package. A copy of the manufacturer's notification, including
closure instructions (see Sec. 178.2(c) of this subchapter), unless
permanently embossed or printed on the package 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 for transportation in commerce. Subsequent offerors of
a filed and otherwise properly prepared unaltered package are not
required to maintain manufacturer notification (including closure
instructions).
(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 Sec.
178.601(g)(1) of this subchapter. Such documentation is to be retained
by the person certifying compliance with Sec. 178.601(g)(1) as
specified in Sec. 178.601(l).
* * * * *

0
11. In Sec. 173.25, paragraph (a)(6) is revised and paragraph (a)(7)
is added to read as follows:

Sec. 173.25 Authorized packagings and overpacks.

(a) * * *
(6) Limited quantities and ORM material. The overpack is marked
with a limited quantity marking prescribed in Sec. 172.315 of this
subchapter or, the ORM marking prescribed in Sec. 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 the required
marking of Sec. 173.4a of this part unless visible.
* * * * *

0
12. In Sec. 173.63, paragraph (b)(1)(ii) is revised to read as
follows:

Sec. 173.63 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, 2020, 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.
* * * * *

0
13. Section 173.144 is revised to read as follows:

Sec. 173.144 Other Regulated Material (ORM)--Definitions.

Until December 31, 2020 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

[[Page 1114]]

provided in Column (8A) of the Sec. 172.101 Hazardous Materials Table.

0
14. In Sec. 173.150, paragraph (c) is revised to read as follows:

Sec. 173.150 Exceptions for Class 3 (flammable and combustible
liquids).

* * * * *
(c) Consumer commodities. Until December 31, 2020, a limited
quantity package containing a ``consumer commodity'' as defined in
Sec. 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.
* * * * *

0
15. In Sec. 173.151, paragraphs (b) and (c) are revised to read as
follows:

Sec. 173.151 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 Sec. 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 Sec. 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, 2020, a limited
quantity package (including Charcoal briquettes (NA1361)) containing a
``consumer commodity'' as defined in Sec. 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.
* * * * *

0
16. In Sec. 173.152, paragraph (c) is revised to read as follows:

Sec. 173.152 Exceptions for Division 5.1 (oxidizers) and Division 5.2
(organic peroxides).

0
17. In Sec. 173.153, paragraph (c) is revised to read as follows:

Sec. 173.153 Exceptions for Division 6.1 (poisonous material).

* * * * *
(c) Consumer commodities. Until December 31, 2020, 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 Sec. 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.

0
18. In Sec. 173.154, paragraph (c) is revised to read as follows:

Sec. 173.154 Exceptions for Class 8 (corrosive material).

0
19. In Sec. 173.155, paragraph (c) is revised to read as follows:

Sec. 173.155 Exceptions for Class 9 (miscellaneous hazardous
materials).

0
20. Section 173.156 is revised to read as follows:

Sec. 173.156 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 Sec. 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 Sec. Sec. 173.150 through 173.155,
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 Sec.
172.315 of this subchapter, or, until December 31, 2020, materials
classed and marked as ORM-D and described as a Consumer commodity, as
defined in Sec. 171.8 of this subchapter, when--
(i) Unitized in cages, carts, boxes or similar overpacks;

[[Page 1115]]

(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 Sec.
172.315 of this subchapter, or, until December 31, 2020, materials
classed and marked as ORM-D and described as a Consumer commodity, as
defined in Sec. 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 Sec. Sec. 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 Sec.
172.315 or, until December 31, 2020, Sec. 172.316 of this subchapter.

0
21. In Sec. 173.161, paragraph (d)(2) is revised to read as follows:

Sec. 173.161 Chemical kits and first aid kits.

* * * * *
(d) * * *
(2) Consumer commodities. Until December 31, 2020, a limited
quantity package containing a ``consumer commodity'' as defined in
Sec. 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.
* * * * *

0
22. In Sec. 173.165, paragraph (c) is revised to read as follows:

Sec. 173.165 Polyester resin kits.

* * * * *
(c) Consumer commodities. Until December 31, 2020, a limited
quantity package containing a ``consumer commodity'' as defined in
Sec. 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.

0
23. Section 173.167 is revised to read as follows:

Sec. 173.167 Consumer commodities.

(a) Effective January 1, 2013, a ``consumer commodity'' (see Sec.
171.8 of this subchapter) when offered for 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 are excepted
from labeling and shipping papers when transported by highway or rail.
Except for Sec. 173.27(f)(2), packages prepared under the requirements
of this section are not subject to Subpart B of this part.
Additionally, packages prepared under the requirements of this section
may be offered for transportation and transported by all modes. As
applicable, the following apply:
(1) Inner and outer packaging quantity limits. (i) Non-toxic
aerosols, as defined in Sec. 171.8 of this subchapter and constructed
in accordance with Sec. 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. Liquids must not completely fill an inner packaging at 55
[deg]C;
(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 positive
means. 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. Glass or
earthenware inner packagings 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 the glass or
earthenware 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) Drop test capability. Breakable inner packagings (e.g., glass,
earthenware, or brittle plastic) must be packaged to prevent failure
under conditions normally incident to transport. Packages of consumer
commodities as prepared for transport must be capable of withstanding a
1.2 m drop on solid concrete in the position most likely to cause
damage.
(5) 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:
(1) Packages prepared under the requirements of this section are to
be marked as a limited quantity in accordance with Sec. 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; and
(2) 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 Sec.
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.

[[Page 1116]]

0
24. In Sec. 173.230, paragraph (h) is revised to read as follows:

Sec. 173.230 Fuel cell cartridges containing hazardous material.

* * * * *
(h) Consumer commodities. Until December 31, 2020, 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 Sec. 171.8 of this subchapter, may be
renamed ``Consumer commodity'' and reclassed as ORM-D. In addition to
the exceptions provided by paragraph (g) of this section, 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 by aircraft, and are eligible for the
exceptions provided in Sec. 173.156 of this part.
* * * * *

0
25. In Sec. 173.306, paragraph (i)(2) is revised to read as follows:

Sec. 173.306 Limited quantities of compressed gases.

* * * * *
(i) * * *
(2) Consumer commodities. Until December 31, 2020, a limited
quantity package containing a ``consumer commodity'' as defined in
Sec. 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.
* * * * *

0
26. Section 173.309 is revised to read as follows:

Sec. 173.309 Fire extinguishers.

(a) Specification 3A, 3AA, 3E, 3AL, 4B, 4BA, 4B240ET or 4BW
(Sec. Sec. 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
[deg]C (minus 52 [deg]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; and
(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) Specification 2P or 2Q (Sec. Sec. 178.33 and 178.33a of this
subchapter) inner non-refillable metal packagings are authorized as
fire extinguishers subject to the following conditions:
(1) Extinguishing agents must be nonflammable, non-poisonous, and
non-corrosive as defined in this subchapter;
(2) The liquid portion of the gas plus any additional liquid or
solid may not completely fill the packaging at 55 [deg]C (130 [deg]F);
(3) Pressure in the packaging must not exceed 1250 kPa (181 psig)
at 55 [deg]C (130 [deg]F). If the pressure exceeds 920 kPa (141 psig)
at 55 [deg]C (130 [deg]F), but does not exceed 1100 kPa (160 psig) at
55 [deg]C (130 [deg]F), a specification DOT 2P inner metal packaging
must be used; if the pressure exceeds 1100 kPa (160 psig) at 55 [deg]C
(130 [deg]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 [deg]C (130 [deg]F);
(4) 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 [deg]C (130 [deg]F) without
evidence of leakage, distortion, or other defect; and
(5) 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.
(c) Non-specification cylinders are authorized as fire
extinguishers subject to the following conditions:
(1) Extinguishing agents must be nonflammable, non-poisonous, and
non-corrosive as defined in this subchapter;
(2) 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 [deg]C
(130[emsp14][deg]F). Fire extinguishers exceeding 900 mL (55 cubic
inches) capacity may not contain any liquefied compressed gas;
(3) 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 [deg]C (70[emsp14][deg]F)
when shipped;
(4) Each fire extinguisher must be tested, without evidence of
failure or damage, to at least three times its charged pressure at 21
[deg]C (70[emsp14][deg]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;
(5) 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; and
(6) 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.
(d) Limited quantities: Fire extinguishers otherwise conforming to
paragraph (a), (b), or (c) of this section and are charged with a
limited quantity of compressed gas to not more than 1660 kPa (241 psig)
at 21 [deg]C (70[emsp14][deg]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 Sec.
173.156 when offered for transportation in accordance with this
paragraph (d). 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) Extinguishing agents must be nonflammable, non-poisonous, and
non-

[[Page 1117]]

corrosive as defined in this subchapter; and
(2) Packages must be marked as specified for limited quantities in
Sec. 172.315 of this subchapter.

PART 175--CARRIAGE BY AIRCRAFT

0
27. 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.

0
28. In Sec. 175.10, paragraph (a)(17) is revised to read as follows:

Sec. 175.10 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 Sec.
171.7 of this subchapter), as specified in Sec. 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.
* * * * *

0
29. In Sec. 175.25, paragraphs (b) and (c)(1) are revised to read as
follows:

Sec. 175.25 Notification at air passenger facilities of hazardous
materials restrictions.

* * * * *
(b) Ticket purchase. An aircraft operator must ensure that
information on the types of hazardous materials specified in paragraph
(a) of this section a passenger is permitted and forbidden to transport
aboard an aircraft is provided at the point of ticket purchase. During
the purchase process, regardless if the process is completed remotely
(e.g., via the Internet or phone) or when completed at the airport,
with or without assistance from another person (e.g., automated check-
in facility), the aircraft operator must ensure that information on the
types of hazardous materials a passenger is forbidden to transport
aboard an aircraft is provided to passengers. Information may be in
text or in pictorial form and, effective January 1, 2015, must be such
that the final ticket purchase cannot be completed until the passenger
or a person acting on the passenger's behalf has indicated that it
understands the restrictions on hazardous materials in baggage.
(c) * * *
(1) Effective January 1, 2015, when the flight check-in process is
conducted remotely (e.g., via the Internet or phone) or when completed
at the airport, without assistance from another person (e.g., automated
check-in kiosk), the aircraft operator must ensure that information on
the types of hazardous materials a passenger is forbidden to transport
aboard an aircraft is provided to passengers. Information may be in
text or in pictorial form and should be such that the check in process
cannot be completed until the passenger or a person acting on the
passenger's behalf has indicated that it understands the restrictions
on hazardous materials in baggage.
* * * * *

PART 176--CARRIAGE BY VESSEL

0
30. The authority citation for part 176 continues to read as follows:

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

0
31. In Sec. 176.905, paragraph (i) is revised to read as follows:

Sec. 176.905 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 [deg]C
(100[emsp14][deg]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 [deg]C
(100[emsp14][deg]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;
(3) The vehicle or mechanical equipment is electrically powered
solely by wet electric storage batteries (including nonspillable
batteries) or sodium batteries; or
(4) 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

0
32. The authority citation for part 178 continues to read as follows:

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

[[Page 1118]]

0
33. In Sec. 178.2, paragraph (c)(1)(ii) is revised to read as follows:

Sec. 178.2 Applicability and responsibility.

* * * * *
(c) * * *
(1) * * *
(ii) Retain copies of each written notification for at least one
year from date of issuance; and
* * * * *

0
34. In Sec. 178.601, paragraph (c)(4)(v) is revised to read as
follows:

Sec. 178.601 General requirements.

* * * * *
(c) * * *
(4) * * *
(v) Packagings which differ from the design type only in their
lesser design height; or
* * * * *

Issued in Washington, DC, on December 20, 2012 under authority
delegated in 49 CFR part 1.
Cynthia Quarterman,
Administrator.
[FR Doc. 2012-31242 Filed 12-31-12; 4:15 pm]
BILLING CODE 4910-60-P

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