Federal Register, Volume 77 Issue 102 (Friday, May 25, 2012)

[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Proposed Rules]
[Pages 31274-31289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12523]

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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: This document responds to administrative appeals and solicits
public comment on proposals generated as a result of certain amendments
adopted in an international harmonization final rule published in the
Federal Register. The final rule amended the Hazardous Materials
Regulations (HMR) by revising, removing or adding proper shipping
names, the hazard class of a material, packing group assignments,
special provisions, packaging authorizations, packaging sections, air
transport quantity limitations, and vessel stowage requirements. The
amendments were

[[Page 31275]]

necessary to align the HMR with recent revisions to international
standards for the transport of hazardous materials by all modes. In
this notice, PHMSA proposes to amend the HMR as a result of
administrative appeals submitted in response to various amendments
adopted in the January 19, 2011 final rule. This document also
addresses recent actions taken by the International Civil Aviation
Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain
lithium ion battery-powered mobility aids (e.g., wheelchairs, travel
scooters) offered by passengers for air transport. Further, this notice
proposes amendments to the HMR as a result of two administrative
appeals submitted by an appellant in response to a final rule published
in the Federal Register, that revised shipper responsibilities related
to packaging design variation, manufacturer notification, and
recordkeeping requirements for certain packaging types.

DATES: Comments must be received by July 24, 2012.

ADDRESSES: You may submit comments by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of Transportation,
Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE., Washington, DC 20590-0001.
Hand Delivery: To U.S. Department of Transportation, Dockets
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through
Friday, except Federal holidays.
Instructions: Include the agency name and docket number PHMSA-2009-
0126 (HM-215K) or RIN 2137-AE83 for this rulemaking at the beginning of
your comment. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal information
provided. If sent by mail, comments must be submitted in duplicate.
Persons wishing to receive confirmation of receipt of their comments
must include a self-addressed stamped postcard.
Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477), or you
may visit http://www.regulations.gov.
Docket: You may view the public docket through the Internet at
http://www.regulations.gov or in person at the Docket Operations office
at the above address (See ADDRESSES).

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

SUPPLEMENTARY INFORMATION:

I. Background
II. Administrative Appeals Submitted in Response to the HM-215K
Final Rule
A. Transportation of ORM-D Material
1. Phase-Out of the ORM-D System
2. Overpacks Containing Limited Quantity or ORM-D Material
B. Use of the Square-On-Point and ID Number Limited Quantity
Marking
C. Fuel Cell Cartridges Transported in Passenger Checked Baggage
D. Consumer Commodity Transported by Aircraft
E. Incident Reporting for Limited Quantity Material
F. Materials of Trade Exceptions
III. Recent Changes to Part 8 of the ICAO Technical Instructions
IV. Administrative Appeals Submitted in Response to the HM-231 Final
Rule
V. Section-by-Section Review of Changes
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for the Rulemaking
B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
K. International Trade Analysis

I. Background

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

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

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

American Coatings Association (ACA).
Association of Hazmat Shippers, Inc. (AHS)
Dangerous Goods Advisory Council, Inc. (DGAC).
Fuel Cell and Hydrogen Energy Association (FCHEA).
Healthcare Distribution Management Association (HDMA).
Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI)
PPG Industries (PPG).

The administrative appeals are discussed in detail as follows:

A. Transportation of ORM-D Material

A number of administrative appeals concern issues related to our
adoption of the international system for transportation of limited
quantity

[[Page 31276]]

material. Specifically, some appellants are concerned with the eventual
phase-out of our domestic system for the transportation of limited
quantity material otherwise known as other regulated material (ORM-D)
(i.e., the ORM-D system). Under certain conditions, the HMR and
international standards allow lesser quantities of relatively low risk
hazardous materials (i.e., limited quantity material) to be afforded
relief from some of the requirements generally applicable to hazardous
materials transported by all modes. For example, a limited quantity
material is not generally required to be packaged in a DOT or UN
standard packaging. Most regulatory amendments resulting from adoption
of the international system and the eventual phase-out of the ORM-D
system involve revisions to hazard communication requirements, material
quantity limitations and the types of material authorized. In this
notice, we note that the AHS petition (P-1542) and PHMSA initiative to
adopt limited quantity requirements for Types B through F self-reactive
liquids and solids (non-temperature controlled) will be addressed in a
separate NPRM under Docket No. PHMSA-2011-0142 (HM-219).
1. Phase-Out of the ORM-D System
PHMSA revised the HMR to phase out its system of reclassing and
transporting limited quantity material as ORM-D. Under this system, a
limited quantity of hazardous material that also meets the definition
of a ``consumer commodity'' may be reclassed as ORM-D and is eligible
for additional exceptions from regulation. See Sec. 171.8 for the
definition of ``consumer commodity.'' The January 19 final rule amended
the HMR by phasing out the ORM-D system beginning January 1, 2013, for
material transported by aircraft and, January 1, 2014, for material
transported by all other modes of transportation (e.g., motor vehicle).
ACA and HDMA appealed our decision to phase out the ORM-D system
arguing that we did so ``without any debate or consideration of [1] the
type of materials that use this exception; [2] the costs incurred by
the regulated community; and [3] the safety benefits.'' ACA claimed
that many companies and organizations, including themselves, asked for
a separate rulemaking to address these issues. ACA is also concerned
that although we provided a summary of comments against the phase-out
in the preamble to the final rule, PHMSA did not discuss arguments
raised in the comments. They stated we arbitrarily concluded that
because there would be no immediate phase-out of the current ORM-D
system, there would not be a sizeable impact to companies on the basis
they would have sufficient time to adjust to the eventual phase-out.
ACA asked us to reconsider the decision to not move forward in a
separate rulemaking and to fully consider the effects of phasing out
the ORM-D system. Additionally, HDMA requested that PHMSA allow for up
to a 10-year phase-out based on the longevity of its packaging systems
(i.e., totes) currently in use. According to HDMA, such totes are
permanently marked with the ``Consumer commodity, ORM-D'' marking on
them.
PHMSA response.
The HMR have long-recognized the relatively low risk posed by the
transportation of certain hazardous materials such as limited
quantities or consumer commodities. Considerable efforts have been made
internationally to harmonize multi-modal standards with regard to the
transport of limited quantities, including consumer commodities. We
held public meetings on this issue in February 2006 and March 2008 to
discuss potential impacts on domestic stakeholders. Additionally, this
issue was discussed during our pre-UN public meetings held in 2006 and
2007. There was considerable domestic interest in pursuing further
harmonization internationally due to the potential for substantial
savings in transportation costs and improved transportation efficiency.
In the advance notice of proposed rulemaking (ANPRM) (October 21, 2009;
74 FR 53982) and NPRM we invited comments on this issue with regard to
aligning the HMR with the UN Model Regulations for the domestic and
international transport of limited quantities and consumer commodities.
Of particular concern were any negative impacts on the domestic
transportation of consumer commodities reclassed as ORM-D materials.
While some changes adopted in the UN Model Regulations were similar to
those currently in the HMR regarding limited quantities and consumer
commodities (e.g., inner packaging limits and non-specification outer
packagings allowed), some changes were not (e.g., marking, labeling,
package gross mass). We stated that depending on the comments received
and our own evaluation, we may determine that the significance of any
amendments on the issue may warrant a separate rulemaking action. In
the January 19, 2011 final rule, we concluded a separate rulemaking was
not in the best interest of the hazardous material transportation
community particularly when it involves international transportation.
Further, creating a single global system for packaging, hazard
communication, and transportation of limited quantity material would
facilitate the domestic and international flow of hazardous material
trade and any further delay in the phase-out would not be useful.
Little or no quantification of any negative impact, including costs to
domestic shippers and carriers alike, was provided in response to the
ANPRM or NPRM. However, the Healthcare Distribution Management
Association (HDMA) did provide some cost data related to its unique
practice of reusing totes permanently embossed with the ORM-D marking.
Some commenters also argued against any phase-out based on the
historically safe transportation of limited quantity material under the
ORM-D system. Commenters further stated that PHMSA should not adopt the
international system simply based on the opportunity to align the HMR
with international standards.
Allowing dual systems for communicating packages of limited
quantity material would likely cause confusion and place unreasonable
burdens on carriers and some shippers to train their hazmat employees
to recognize and comply with both systems. We believe adopting a single
global system for the transportation of limited quantity material will
greatly improve safety and efficiency by decreasing the aforementioned
potential for delays and confusion during transportation and by
removing the burden of providing training in dual systems used to
communicate the transportation of limited quantity material. However,
we recognize the need to provide sufficient time for domestic shippers
and carriers to adjust to the revised system and are sympathetic to the
concerns expressed by ACA, HDMA and others regarding this need.
Therefore, in this notice we are proposing only to authorize the
continued use of packagings marked ``Consumer commodity, ORM-D'' until
December 31, 2015 for domestic highway, rail and vessel transportation.
2. Overpacks Containing Limited Quantity or ORM-D Material
In the January 19, 2011 final rule, PHMSA revised the regulation
for overpacks (as defined in 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 that it implies
all markings on each packaging in the overpack must be visible. DGAC
noted that this is not consistent with the

[[Page 31277]]

UN Model Regulations which states the overpack ``shall be marked with
the word ``OVERPACK'' and the marking required by this Chapter unless
the markings representative of all dangerous goods in the overpack are
visible.'' See 3.4.11 of the 16th Revised Edition of the UN Model
Regulations. It is their understanding this refers to the limited
quantity marking and not to all markings that may be required by the UN
Model Regulations. Their understanding is that use of the term
``representative'' communicates a requirement that only one limited
quantity package marking needs to be visible to represent all limited
quantity packaging. DGAC requested that PHMSA revise the overpack
requirements in 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
NPRM we are accepting DGAC's appeal and are proposing to revise 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 proposed to be added for clarity to separate limited
quantity and ORM overpack marking requirements from excepted quantity
overpack marking requirements.

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

Formerly, 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 containing the UN identification (ID) number of the
limited quantity substance or article. In the January 19, 2011 final
rule, we provided a one-year transition period to authorize continued
use of this marking before the revisions to the limited quantity
markings become effective. ACA, DGAC, and PPG all stated the one-year
transition period does not allow sufficient time to deplete stock(s) of
packagings pre-printed with the square-on-point mark containing the ID
number and requested an extension of three- to five-years.
Specifically, ACA requested a three- to five-year timeframe while DGAC
and PPG ask for a three-year timeframe. ACA, DGAC, and PPG maintained
that without a longer transition period, shippers will be forced to
remark packaging at their cost and there is no impact to safety by
allowing continued use of the existing marking. Appellants also pointed
out this alternative limited quantity marking communicates more
information than the newly adopted markings or the original ORM-D
markings. They stated that PHMSA already provides for a two- to three-
year transition period for the phase-out of the ORM-D marking,
depending on the mode of transportation. They also requested, for
clarification, that any transition periods be included in 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.
In response to administrative appeals filed by ACA, HDMA and DGAC,
in this NPRM we are proposing that for other than air transportation,
continued use of the square-on-point mark containing the ID number
would be authorized until December 31, 2015. PHMSA is also soliciting
public comment on whether for other than air transportation, a
previously authorized limited quantity package marking (i.e., proper
shipping name only) should be reauthorized for a similar transition
period.

C. Fuel Cell Cartridges Transported in Passenger Checked Baggage

In the January 19, 2011 final rule, we revised the 49 CFR 175.10
passenger exceptions to allow passengers and crew members to place
certain spare fuel cell cartridges containing a flammable liquid (Class
3) or corrosive material (Class 8) in checked baggage. We limited the
scope of fuel cell cartridge chemistries allowed in checked baggage by
excluding fuel cell cartridges containing Divisions 2.1 (flammable gas)
and 4.3 (dangerous when wet) material. Although this is inconsistent
with the ICAO Technical Instructions, in that ICAO only restricts spare
fuel cell cartridges containing Division 4.3 material from checked
baggage, we believed that the prohibition should include spare
cartridges containing Division 2.1 materials. Flammable gases are
generally prohibited from transportation on passenger-carrying aircraft
as cargo. When combined with the uncertainty of the effect of baggage
handling on the durability of these products when stowed in a
passenger's checked baggage, the risks posed are of concern. In their
administrative appeals, FCHEA and LSI requested that PHMSA revise 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.
We are granting the appeal for reconsideration of the issue by
providing additional opportunity for comment. We are soliciting public
comment until July 24, 2012 for the limited purpose of gathering
information to help us determine whether or not to allow fuel cell
cartridges containing Division 2.1 flammable gas to be carried aboard a
passenger-carrying aircraft in checked baggage.

D. Consumer Commodity By Air

In the January 19, 2011 final rule, PHMSA adopted requirements for
certain consumer commodities intended for transportation by aircraft in
new 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.

[[Page 31278]]

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

E. Incident Reporting for Limited Quantity Material

The detailed hazardous materials incident reporting requirements of
the HMR allow for exceptions from these requirements, specifically,
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. We are not, however,
proposing to extend the exception from incident reporting to limited
quantity Class 7 (radioactive) material, instruments, and articles due
to the unique nature of the hazard and because this type of material
was never authorized to be reclassed and transported as ORM-D.
Additionally, this exception is not applicable to air transportation.

F. Materials of Trade

The materials of trade (MOTS) exceptions of the HMR allow certain
hazardous material articles and substances, including ORM-D, to be
transported by motor vehicle as part of a business operation under less
regulation.
PHMSA response.
Similar to the applicability of written incident reporting
exceptions to limited quantity material, our review of the HMR revealed
that we did not amend the materials of trade exceptions under the
January 19, 2011 final rule to reflect the eventual phase-out of the
ORM-D system. Similar to the revisions to the written incident
reporting requirements, we believe there is no impact to safety by
extending the exception for ORM-D to limited quantity material. Most
materials reclassed as ORM-D are limited quantity material themselves;
an ORM-D is a limited quantity material that also meets the definition
of a ``consumer commodity.'' See Sec. 171.8 for the definition of
consumer commodity.
In this notice, we are proposing to extend the MOTS exceptions to
limited quantity packages consistent with the exception provided to
ORM-D material. We are not, however, proposing to extend the exception
to limited quantities of Division 4.3 (dangerous when wet) liquid
material or Class 7 (radioactive) material, instruments or articles due
to the unique nature of these hazards and because these materials were
never authorized to be reclassed and transported as ORM-D.
Additionally, we propose to clarify that exceptions for limited
quantity material also include limited quantity material authorized
under Sec. 173.63 for certain Division 1.4S explosives and Sec.
173.306 for compressed gases.

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

At the 23rd Meeting of the ICAO Dangerous Goods Panel (DGP), held
October 11-21, 2011, the DGP recommended amending Part 8 of the ICAO
Technical Instructions applicable to passengers and crew members and
the hazardous materials (dangerous goods) they may introduce aboard an
aircraft either in checked or carry-on baggage or on one's person. Such
provisions form the basis of similar provisions provided in 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
NPRM, PHMSA is proposing to amend the HMR by addressing the potential
for unintended activation of all stowed devices on an aircraft and
providing for the intentional removal of a lithium ion battery from a
device and its stowage in the passenger cabin. PHMSA intends to address
remaining Part 8 and 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 any spare lithium ion batteries used to power portable electronic
devices and medical devices to carry-on baggage only. At its 23rd
Meeting, the DGP was informed of lithium ion batteries developed for
wheelchairs and other mobility aids which did not exceed 160 watt-hours
(13.5 grams aggregate equivalent lithium content). Therefore, the DGP
adopted a proposal introduced by the International Air Transport
Association (IATA) to include spare lithium ion batteries for battery-
powered wheelchairs and other mobility aids in Part 8 consistent with
the provisions for spare lithium ion batteries used to power portable
electronic devices and medical devices. In this NPRM, PHMSA is
proposing similar provisions by revising Sec. 175.10(a)(17) of the
HMR.
The DGP was also informed of new mobility aid designs which require
the lithium ion battery to be removed from the device to permit
efficient and effective stowage and transport of the mobility aid in
the cargo compartment of the aircraft. The DGP agreed it would be safer
to require that the removed lithium ion battery be carried in the
passenger cabin rather than being stowed as checked baggage with the
mobility aid. Subsequently, at the same meeting, the DGP was informed
of mobility aid designs equipped with lithium ion batteries, which
required removal for stowage (e.g., collapsible), that exceed the 160
watt-hour limit (13.5 grams aggregate equivalent lithium content). The
DGP Panel therefore adopted an upper limit of 300 watt-hours (25 grams
aggregate equivalent lithium content) for batteries which must be
removed and carried aboard in the passenger cabin. The DGP Panel
agreed, that when applicable, the battery must be removed by the user.
Because the HMR currently places an upper limit on such batteries to 25
grams aggregate equivalent lithium content (300 watt-hours), no
corresponding revision to Sec. 175.10(a)(17) of the HMR is necessary.
Therefore, in this NPRM, PHMSA proposes to amend the HMR for
consistency with the ICAO DGP/23 Panel recommendations. This NPRM also
proposes to clarify and correct some related amendments adopted in the
original January 19, 2011 final rule. See the Section-by-Section
discussion of specific amendments being proposed in Sec. 175.10 in
Section V. of this preamble.

[[Page 31279]]

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

In this notice, PHMSA responds to an administrative appeal
submitted in response to a final rule published February 2, 2010 (HM-
231; 75 FR 5376) that adopted miscellaneous amendments to packaging
provisions in the HMR. The final rule revised recordkeeping
requirements in 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.
We did not grant the DGAC administrative appeal in our September
30, 2010 final rule (75 FR 60333) that responded to a petition for
rulemaking and several other administrative appeals. Specifically, we
did not grant DGAC's request for a two-year extension of the effective
date; however, we did agree that aligning the review and preparation of
a packaging's manufacturer notification with its periodic retest
merited consideration because it would facilitate the packaging
manufacturer's and distributor's compliance with new packaging
manufacturer notification requirements adopted in the rule. Thus, in
the September 30, 2010 final rule, we revised the recordkeeping
requirement from 365 days to a two-year period for combination
packagings and a one-year period for single packagings consistent with
a typical packaging design's periodic retest frequency.
DGAC submitted a follow-up administrative appeal objecting to our
revision in the September 30, 2010 final rule to the recordkeeping
requirement for manufacturer notification and requested that PHMSA
return the recordkeeping duration to the 365 days adopted under the
February 2, 2010 final rule. DGAC stated that while the preamble
discussion in the September 30, 2010 final rule recognized its concerns
in the initial appeal, the regulatory response did not grant its
request for the extension of the effective date and, instead, created a
recordkeeping requirement of two years that is more difficult to comply
with than the original one-year (365-day) requirement in the February
2, 2010 final rule. DGAC claimed there is no need for a shipper to
retain a copy of a packaging's manufacturer notification (including
closure instructions) for longer than 365 days. DGAC also asked whether
the words ``supporting documentation'' were intentionally omitted from
the September 30, 2011 final rule revision to 49 CFR 178.601(g)(1).
Further, DGAC requested that PHMSA amend 49 CFR 171.14 to extend the
effective date of the February 2, 2010 final rule to October 1, 2011.
PHMSA response.
Although not stated clearly in both final rules, it was our intent
that the new manufacturer notification requirements apply to all
applicable hazardous materials packagings manufactured on or after
October 1, 2010. Packagings manufactured before this date should
already conform to HMR performance standards for their design type in
effect at the time of manufacture. As we stated in the February 2, 2010
final rule, we revised this regulation to address an increase in
hazardous materials releases as a result of improperly closed
packagings. In our opinion, review of existing manufacturer
notifications for packaging designs that should already be in
compliance with the HMR would involve much less effort than DGAC
described in its administrative appeal. We also believe sufficient time
has elapsed since the February 2, 2010 final rule was published to
complete this task and any additional time is not warranted.
Therefore, in this notice, we are denying DGAC's appeal to extend
the effective date of the rule. However, we are proposing to amend
Sec. 178.2(c)(1)(ii) of the HMR based on DGAC's request to revert back
to the original recordkeeping retention duration for manufacturer
notification to the 365-day period adopted in the February 2, 2010
final rule. Additionally, PHMSA is proposing to amend Sec.
173.22(a)(4)(ii) by requiring a shipper to retain manufacturer
notification (including closure instructions) for a period of 90 days
once a package is offered to the initial carrier for transportation in
commerce.
In this NPRM, PHMSA is proposing to clarify that only bulk
packagings and cylinders manufactured in accordance with Part 178 of
the HMR are excepted from the manufacturer notification (including
closure instructions) retention requirements specified in 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. Therefore, no further revision of this paragraph is needed or
is proposed in this notice.

V. Section-by-Section Review of Changes

Part 171

Section 171.16
This section prescribes written hazardous material incident report
requirements. In this notice, we are proposing to revise the paragraph
(d) exceptions to reflect the eventual phase-out of the ORM-D system on
December 31, 2015 and to extend the exception provided for material
classed as ORM-D to hazardous materials authorized for transportation
as limited quantity material under Subparts C through E and Subpart G
of Part 173 of the HMR. This exception is not applicable to air
transportation. See section II.E for a comprehensive discussion of the
proposed changes.

Part 172

Section 172.200
Section 172.200 prescribes the applicability of shipping paper
requirements for the transportation of hazardous materials. In the
January 19 final rule, paragraph (b)(3) was revised to remove the
exceptions for ORM-D material in conformance with revisions

[[Page 31280]]

made to the limited quantity requirements. In this notice, we are
proposing to revise the effective date for expiration of the
authorization to reclassify to the ORM-D hazard class from December 31,
2013 to December 31, 2015 in response to the appeal submitted by HDMA.
Additionally, we propose to revise paragraph (b)(3) to correct the
shipping paper applicability for a vessel shipment of ORM-D material
that was inadvertently adopted in the January 19, 2011 final rule.
Additionally, we want to emphasize that limited quantity shipments
offered for transportation by air or vessel are required to be
accompanied by shipping papers as adopted in the January 19, 2011 final
rule.
Section 172.315
Section 173.315 prescribes the requirements for marking packages
containing limited quantity material. Based on administrative appeals
submitted and requests to make the requirements for limited quantity
marking clearer, we propose to revise Sec. 172.315 to allow the
continued use of alternative limited quantity markings (i.e., square-
on-point with Identification Number) marking for the same duration
offered for continued use of the ORM-D marking, that is, until December
31, 2015. The expiration date for the square-on-point with
Identification Number marking remains December 31, 2012 for air
transportation.
Section 172.316
Section 172.316 prescribes marking requirements for packages
containing materials classed as ORM-D and ORM-D-AIR. As adopted in the
January 19 final rule, the marking prescribed in this section will no
longer be authorized for limited quantities effective January 1, 2014.
In this document, we are proposing to revise the effective date for
expiration of the authorization to reclassify to the ORM-D hazard class
from December 31, 2013 to December 31, 2015 in response to the appeal
submitted by HDMA. The expiration date for the ORM-D-AIR hazard class
marking remains December 31, 2012 for air transportation.

Part 173

Section 173.6
This section prescribes exceptions from certain requirements of the
HMR for the transportation of hazardous materials defined as material
of trade when transported by motor vehicle. See Sec. 171.8. In this
notice, we are proposing to revise the paragraph (d) exceptions to
reflect the phase-out of the ORM-D system on December 31, 2015 and
extend the exception provided ORM-D material to hazardous materials
authorized for transportation as limited quantity material under
Subparts C through E and Subpart G of Part 173 of the HMR. See section
II.F for a comprehensive discussion of these proposed changes.
Section 173.22
Section 173.22 prescribes shipper responsibilities. In this
document, PHMSA responds to an administrative appeal submitted in
response to a final rule published February 2, 2010 (HM-231; 75 FR
5376) that adopted miscellaneous amendments to packaging provisions in
the HMR. The final rule revised recordkeeping requirements in 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 notice, PHMSA is proposing to revise Sec. 173.22(a)(4) to
clarify that only bulk packagings and cylinders manufactured in
accordance with Part 178 of the HMR are excepted from the manufacturer
notification (including closure instructions) retention requirements
specified in Sec. 173.22(a)(4) (shipper responsibilities) if such
information is permanently embossed or printed on the packaging.
Additionally, we are proposing to revise the same paragraph to require
that, if applicable, a shipper only be required to retain the packaging
design's manufacturer notification (including closure instructions) for
90 days once offered to the initial carrier for transportation. See
Section III of this preamble for a more comprehensive discussion.
Section 173.25
This section prescribes requirements for the transportation of
authorized packages in overpacks used for protection or convenience of
handling or to consolidate packages. In this document, we are proposing
to revise Sec. 173.25(a)(6) to clarify that all markings on each
package containing a limited quantity or ORM-D material in an overpack
are not required to be visible, but rather, that markings
representative of each hazardous material in the overpack are visible
as specified in Sec. 173.25(a)(2) and (a)(3). Additionally, we are
proposing to correct an error made in the January 19, 2011 final rule
by revising paragraphs (a)(6) and the new (a)(7) applicable to
overpacked packages of limited quantities, ORM-D, and excepted quantity
materials to reaffirm that an overpack is only required to be marked
with the word ``OVERPACK'' if specification markings, when required,
are not visible.
Because these amendments were not proposed in the original NPRM,
nor were they adopted in the January 19, 2011 final rule, we believe
notice and comment are appropriate. We are therefore granting the
administrative appeals and soliciting public comment until July 24,
2012 for the purpose of gathering information to help determine if
Sec. 173.25(a)(6) and (a)(7) should be revised to clarify that all
markings on each package containing a limited quantity, ORM-D, or
excepted quantity material in an overpack, are not required to be
visible; rather, all markings representative of each hazardous material
in the overpack are to be visible and whether the required use of the
``OVERPACK'' mark should be expanded in accordance with the various
international standards.
Section 173.63
Section 173.63 specifies packaging exceptions for certain Division
1.4S explosive articles authorized for reclassification and transport
as ORM-D material. Such articles in Division 1.4S may continue to be
reclassed as ORM-D and offered for transportation until December 31,
2013. Thus, in this notice we are proposing to revise the effective
date for expiration of the authorization to reclassify to the ORM-D
hazard class from December 31, 2013 to December 31, 2015 in response to
the appeal submitted by HDMA.
Section 173.144
Section 173.144 defines ``Other Regulated Materials, ORM-D.'' In
this notice, we are proposing to revise the effective date for
expiration of the ORM-D hazard class from December 31, 2013 to December
31, 2015 in response to the appeal submitted by HDMA.
Sections 173.150, 173.151, 173.152, 173.153, 173.154, 173.155 and
173.306
Sections 173.150 through 173.155 prescribe the exceptions for
certain Class 3, 8 and 9 and Division 2.1, 2.2, 4.1, 4.2, 5.1, 5.2, 6.1
hazardous materials under the HMR. In response to HDMA's administrative
appeal, in this notice, we are proposing to revise the effective date
for expiration of the authorization to reclassify to the ORM-D hazard
class from December 31, 2013 to December 31, 2015 in each of these
sections' consumer commodity paragraphs, where applicable.

[[Page 31281]]

Section 173.156
Section 173.156 prescribes exceptions for the Other Regulated
Materials, ORM-D hazard class. In this notice, we are proposing to
revise the effective date for expiration of the authorization to
reclassify to the ORM-D hazard class from December 31, 2013 to December
31, 2015 in response to HDMA's administrative appeal.
Section 173.161
Section 173.161 prescribes packaging requirements for chemical kits
and first aid kits containing small amounts of hazardous materials. In
this notice, we are proposing to revise the effective date for
expiration of the authorization to reclassify to the ORM-D hazard class
from December 31, 2013 to December 31, 2015 in response to HDMA's
administrative appeal.
Section 173.165
In the January 19 final rule, a new section 173.165 was added to
prescribe packaging and other requirements for ``Polyester resin kits,
UN3269'' formerly contained in Sec. 172.102, special provision 40 and
Sec. 173.152(b)(4) of the HMR. In this notice, we are proposing to
revise the effective date for expiration of the authorization to
reclassify to the ORM-D hazard class from December 31, 2013 to December
31, 2015 in response to HDMA's administrative appeal.
Section 173.167
In the January 19 final rule, a new section 173.167 was added to
indicate authorized materials and quantity limits for articles and
substances that may be described as ``ID8000, Consumer commodity,''
eligible for transport by aircraft and authorized transportation by all
modes. This notice addresses inconsistencies with the ICAO Technical
Instructions brought to our attention in appeals submitted in response
to the final rule. Appellants are correct in their assessment of the
inconsistencies that exist between the consumer commodity provisions
adopted in the HMR and the ICAO Technical Instructions. We are granting
their administrative appeals and soliciting public comment for the
limited purpose of gathering any information to help determine if we
should revise the Sec. 173.167 amendments adopted in the final rule
consistent with Packing Instruction Y963 of the ICAO Technical
Instructions.
Section 173.230
Section 173.230 prescribes the requirements for fuel cells offered
for transportation by all modes. In paragraph (g) of the final rule,
PHMSA adopted limited quantity provisions for such articles by aircraft
consistent with the ICAO Technical Instructions. In paragraph (h),
PHMSA also adopted a prohibition of reclassification to ``Consumer
commodity, ORM-D-AIR'' for transportation by aircraft. In this notice,
we are proposing to revise the effective date for expiration of the
authorization to reclassify to the ORM-D hazard class for other than
air transportation from December 31, 2013 to December 31, 2015 in
response to HDMA's administrative appeal.
Section 173.306
Section 173.306 prescribes requirements for limited quantity of
compressed gases. In paragraph (i)(2), we are proposing to revise the
effective date for expiration of the authorization to reclassify to the
ORM-D hazard class from December 31, 2013 to December 31, 2015 in
response to HDMA's administrative appeal.
Section 173.309
Section 173.309 prescribes requirements for fire extinguishers. In
this NPRM, we are proposing to revise the entire section for clarity.
First, we are proposing to move the limited quantity requirements and
exceptions from paragraph (a) to paragraph (b) as we typically indicate
regulation first in most sections followed by any exceptions to that
regulation. Second, we are proposing to add regulatory text from Sec.
172.102(c)(1) Special provision 18 to revised paragraph (a) that
prescribes the conditions when specification cylinders may be
described, offered and transported in commerce as fire extinguishers.
Further, we solicit public comment on whether we should consider
allowing UN specification cylinders as fire extinguishers in Sec.
173.309. Lastly, we are proposing to revise paragraph (b) by excepting
a limited quantity package of fire extinguishers from shipping papers
when transported by highway or rail if marked in accordance with Sec.
172.315. This exception is provided in addition to the existing HMR
exceptions from labeling (unless offered for transportation by
aircraft), placarding, Part 174 and Part 177 for limited quantity
packages of fire extinguishers.

Part 175

Section 175.10
In the January 19, 2011 final rule, we amended the HMR to align
with international standards by designating paragraphs (a)(17) and
(a)(18) as paragraphs (a)(18) and (a)(19) and by adding a new paragraph
(a)(17) that authorized a mobility aid such as a wheelchair, powered by
a lithium ion battery, to be transported aboard a passenger-carrying
aircraft.
For consistency with the wheelchair or other battery-powered
mobility aid provisions in 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). We stated that removal of the battery may be
necessary based on results of the required visual inspection or if the
mobility aid was to be offered to the operator as checked baggage. It
was not our intent to require an operator or passenger to remove a
properly secured lithium ion battery from a mobility aid that was not
specifically designed to allow its batteries to be removed. Further, it
is the responsibility of the operator to determine if the wheelchair or
other mobility aid is designed to have its battery removed by the user.
Information provided by the user or visual inspection may be used in
this process. Therefore, a revision of certain amendments adopted in
Sec. 175.10(a)(17) of the final rule is required and are as follows:
A mobility aid such as a wheelchair, powered by a lithium
ion battery, must be transported as checked baggage aboard an aircraft.
This requirement is consistent with the 14 CFR Part 382 provisions
under the Air Carrier Access Act (ACAA);
Provided the wheelchair or other mobility aid is not
specifically designed to allow its lithium ion battery to be removed,
battery removal is not required;
If the battery is to remain installed, a wheelchair or
other mobility aid may be loaded and stowed in any orientation
determined by the operator necessary to prevent unintentional
activation of the mobility aid or short circuiting of the battery and
is equally protected as the upright orientation would provide;
The wheelchair or other mobility aid must be protected
from damage by the movement of baggage, mail, service items, or other
cargo; and
As adopted in the January 19, 2011 final rule, a lithium
ion battery specifically designed to be removed from a mobility aid
(e.g., collapsible) by the user and any spare batteries must be
transported in carry-on baggage in accordance with paragraph (vii). The
carry-on battery must not exceed 25 grams aggregate equivalent lithium
content and a maximum of one spare

[[Page 31282]]

battery not exceeding 25 grams aggregate equivalent lithium content or
two spares not exceeding 13.5 grams aggregate equivalent lithium
content each may be carried on.

Part 176

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

Part 178

Section 178.2
Section 178.2 prescribes HMR applicability and responsibility
required of packaging manufacturers. In this notice, PHMSA responds to
an administrative appeal submitted in response to a final rule
published February 2, 2010 (HM-231; 75 FR 5376) that adopted
miscellaneous amendments to packaging provisions in the HMR. The final
rule revised recordkeeping requirements in 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) back to the original one year from date of
issuance. Thus, in this notice we are proposing to amend the HMR based
on DGAC's request to revert back to the original recordkeeping
retention duration for manufacturer notification to one year.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This NPRM is published under the following statutory authorities:
1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to
prescribe regulations for the safe transportation, including security,
of hazardous material in intrastate, interstate, and foreign commerce.
This NPRM responds to administrative appeals of certain amendments
adopted in final rule PHMSA-2009-0126 (HM-215K) published on January
19, 2011 (76 FR 3308). Additionally, it responds to administrative
appeals of certain amendments adopted in a final rule PHMSA-2006-25736
(HM-231) published on February 2, 2010 (75 FR 5376).
2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to
ensure that, to the extent practicable, regulations governing the
transportation of hazardous materials in commerce are consistent with
standards adopted by international authorities.

B. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures

This notice is not considered a significant regulatory action under
section 3(f) of Executive Order 12866 and, therefore, was not reviewed
by the Office of Management and Budget. This notice is not considered a
significant rule under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). Additionally, E.O. 13563
supplements and reaffirms E.O. 12866, stressing that, to the extent
permitted by law, an agency rulemaking action must be based on benefits
that justify its costs, impose the least burden, consider cumulative
burdens, maximize benefits, use performance objectives, and assess
available alternatives.
This notice applies to offerors and carriers of hazardous
materials, such as chemical manufacturers, chemical users and
suppliers, packaging manufacturers, distributors, radiopharmaceutical
companies, and training companies. Benefits resulting from the adoption
of the amendments in this notice include enhanced transportation safety
resulting from the consistency of domestic and international hazard
communications and continued access to foreign markets by U.S.
manufacturers of hazardous materials. A regulatory evaluation is
available for review in the public docket for this rulemaking.
In most instances, the amendments in this rulemaking reduce
compliance costs of the regulated population, and it is likely that
these changes are possible without reducing public safety. Although we
were not able to quantify all of the costs and benefits for most of the
amendments, the net benefits of those we were able to quantify are
approximately $3.5 million per year. The following table summarizes the
costs and benefits for the different amendments being proposed:

Summary of Costs and Benefits
----------------------------------------------------------------------------------------------------------------
Issue addressed by amendments to
HMR Costs Benefits Net benefit
----------------------------------------------------------------------------------------------------------------
Domestic transportation of ORM-D Extending the Extending the $7.3 million over 2 years.
material. effective date of effective date of
eliminating the ORM-D eliminating the ORM-D
system will result in system will allow
minor short-term companies to deplete
costs on shippers and stocks of hazard
carriers who will communication
have to recognize and materials and pre-
comply with two printed packaging
marking systems over with the ORM-D
a longer transition markings on them.
period. Clarifications will
reduce compliance
costs that result
from confusion and
misinterpretation of
the regulatory
requirements.

[[Page 31283]]

Use of the Square-on-Point and ID Extending the Extending the Positive.
Number Limited Quantity Marking. effective date of effective date of
eliminating the eliminating the
revised limited revised limited
quantity marking quantity marking
system will result in system will allow
minor short-term companies to deplete
costs on shippers and stocks of hazard
carriers who will communication
have to recognize and materials and pre-
comply with two printed packaging
marking systems over with the ORM-D
a longer transition markings on them.
period. Clarifications will
reduce compliance
costs that result
from confusion and
misinterpretation of
the regulatory
requirements.
Fuel Cell Cartridges Transported in Costs are expected to The proposal is $155,766 per year.
Passenger Checked Baggage. be negligible. expected to reduce
security costs for
locating and removing
fuel cells from
passenger checked
baggage, as well as
reduce passenger
confusion and the
cost to consumers of
replacing confiscated
fuel cell cartridges.
Consumer Commodity Transport by No costs are Clarifications will Positive.
Aircraft. anticipated as the reduce compliance
proposal provides costs that result
clarification and from confusion and
guidance for existing misinterpretation of
requirements adopted the regulatory
in the January 19, requirements.
2011 Final Rule.
Incident Reporting for Limited No costs are Increased exceptions Positive.
Quantity Material. anticipated. for written reporting
requirements will
reduce the regulatory
burden on shippers/
carriers of limited
quantity materials.
Materials of Trade Exceptions...... No costs are Increased materials of Positive.
anticipated. trade exceptions will
reduce the regulatory
burden on shippers/
carriers of limited
quantity materials.
Recordkeeping Requirements for Costs are expected to Reduced costs that $3.3 million per year.
Manufacturer Notification*. be negligible. shippers will incur
as a 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 notice has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''), and the
President's memorandum on ``Preemption'' published in the Federal
Register on May 22, 2009 (74 FR 24693). If adopted in a final rule, it
would preempt State, local, and Indian tribe requirements but does not
propose any regulation that has substantial direct effects on the
States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
The Federal hazardous material transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements for certain
subjects. The subjects are:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This notice addresses all the covered subject items above and
preempts State, local, and Indian tribe requirements not meeting the
``substantively the same'' standard. This notice is necessary to
incorporate revisions to the HMR based on administrative appeals
submitted in response to the January 19, 2011 final rule, effective
January 1, 2011. Federal hazardous materials transportation law
provides at section 5125(b)(2) that, if DOT issues a regulation
concerning any of the covered subjects, DOT must determine and publish
in the Federal Register the effective date of Federal preemption. The
effective date may not be earlier than the 90th day following the date
of issuance of the final rule and not later than two years after the
date of issuance. The effective date of Federal preemption is [DATE 90
DAYS FROM PUBLICATION DATE OF FINAL RULE IN THE Federal Register].

D. Executive Order 13175

This notice was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this notice
does not have tribal implications, does not impose substantial direct
compliance costs, and is required by statute, the funding and
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant impact on a substantial number of small entities. We have
completed an assessment and placed it in the docket for this
rulemaking. Commenters are invited to address the costs and benefits of
the amendments proposed in this notice and the potential impacts,
positive or negative, on small businesses.
This notice has been developed in accordance with Executive Order
13272

[[Page 31284]]

(``Proper Consideration of Small Entities in Agency Rulemaking'') and
DOT's procedures and policies to promote compliance with the Regulatory
Flexibility Act to ensure that potential impacts of proposed rules on
small entities are properly considered.

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. Section 1320.8(d), Title 5,
Code of Federal Regulations requires that PHMSA provide interested
members of the public and affected agencies an opportunity to comment
on information and recordkeeping requests.
This notice identifies a revised information collection request
that PHMSA will submit to OMB for approval based on the requirements
proposed in this notice. PHMSA has developed burden estimates to
reflect proposed changes in this notice, and estimates the information
collection and recordkeeping burden as proposed in this notice to be as
follows:
This notice reduces the OMB Control Number 2137-0572
information collection burden by $1,654,384 annually.
PHMSA will submit the revised information collection and
recordkeeping requirements to OMB for approval.

G. Regulatory Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.

H. Unfunded Mandates Reform Act

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

I. Environmental Assessment

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

J. Privacy Act

Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit http://www.dot.gov/privacy.html.

K. International Trade Analysis

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

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, 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 proposing to amend
Title 49, Subtitle B, Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

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

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

Sec. 171.16 Detailed hazardous materials incident reports.

* * * * *
(d) * * *

[[Page 31285]]

(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

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

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

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

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, 2015, a
package of ORM-D material authorized by this subchapter on October 1,
2010, when offered for transportation by highway, rail or vessel.
* * * * *
5. In 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, 2015, a package
containing a limited quantity may continue to be marked in accordance
with the requirements of this section in effect on October 1, 2010
(i.e., square-on-point with identification number only) as an
alternative to the marking required by paragraph (a) of this section.
(2) ORM-D marked packaging. Except for transportation by aircraft
and until December 31, 2015, a packaging marked in accordance with
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 is not required to be marked
with the limited quantity ``Y'' marking required by paragraph (b) of
this section.
6. In Sec. 172.316, paragraph (a)(2) is revised to read as
follows:

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

(a) * * *
(1) * * *
(2) Until December 31, 2015, ORM-D for an ORM-D material that is
packaged in accordance with Sec. Sec. 173.63, 173.150 through 173.156
and 173.306.
* * * * *

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

7. The authority citation for part 173 continues to read as
follows:

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

8. In 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, 173.150, 173.151(b) and (c), 173.152,
173.153, 173.154, 173.155, 173.161, 173.165, 173.167 and 173.306(i) of
this subchapter. Division 4.3 substances must be prepared in accordance
with paragraph (a)(3) of this section. Class 7 (radioactive)
substances, instruments and articles are not authorized under the
provisions of this section.
* * * * *
9. In 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 packaging 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
packaging 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 packaging. 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 packaging when applicable, must
be made available for inspection by a representative of the Department
upon request for at least 90 days once the package is offered to the
initial carrier.
(iii) When applicable, a person must retain a copy of any
supporting documentation used to determine an equivalent level of
performance under the selective testing variation in 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).
10. In Sec. 173.25, paragraph (a)(6) is revised and new 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 all required
marking of Sec. 173.4a of this part unless visible.
* * * * *
11. 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.

[[Page 31286]]

Additionally, for transportation by aircraft, Cartridge, power devices
must be successfully tested under the UN Test Series 6(d) criteria for
reclassification as ORM-D-AIR material effective July 1, 2011. Until
December 31, 2015, a package containing such articles may be marked
with the proper shipping name ``Cartridges, small arms'' or
``Cartridges, power device (used to project fastening devices)'' and
reclassed as ``ORM-D'' material if it contains properly packaged
articles as authorized by this subchapter on October 1, 2010.
* * * * *
12. Section 173.144 is revised to read as follows:

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

Until December 31, 2015 and for the purposes of this subchapter,
``ORM-D material'' means a material such as a consumer commodity,
cartridges, small arms or cartridges, power devices which, although
otherwise subject to the regulations of this subchapter, presents a
limited hazard during transportation due to its form, quantity and
packaging. The article or substance must be a material for which
exceptions are provided in Column (8A) of the Sec. 172.101 Hazardous
Materials Table.
13. 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, 2015, 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.
* * * * *
14. 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, 2015, 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.
* * * * *
15. 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).

* * * * *
(c) Consumer commodities. Until December 31, 2015, 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.
16. 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, 2015, a limited
quantity package of poisonous material in Packing Group III or a drug
or medicine in Packing Group II or III that is also a ``consumer
commodity'' as defined in 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.
17. In Sec. 173.154, paragraph (c) is revised to read as follows:

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

* * * * *
(c) Consumer commodities. Until December 31, 2015, 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.
* * * * *
18. In Sec. 173.155, paragraph (c) is revised to read as follows:

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

Sec. 173.156 Exceptions for limited quantity and ORM.

(a) Exceptions for hazardous materials shipments in the following
paragraphs

[[Page 31287]]

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 and in
173.306 and 173.309(b). In addition to exceptions provided for limited
quantity and ORM-D materials elsewhere in this part, the following are
provided:
(1) Strong outer packagings as specified in this part, marking
requirements specified in subpart D of part 172 of this subchapter, and
the 30 kg (66 pounds) gross weight limitation are not required for
packages of limited quantity materials marked in accordance with Sec.
172.315 of this subchapter, or, until December 31, 2015, materials
classed and marked as ORM-D and described as a Consumer commodity, as
defined in Sec. 171.8 of this subchapter, when--
(i) Unitized in cages, carts, boxes or similar overpacks;
(ii) Offered for transportation or transported by:
(A) Rail;
(B) Private or contract motor carrier; or
(C) Common carrier in a vehicle under exclusive use for such
service; and
(iii) Transported to or from a manufacturer, a distribution center,
or a retail outlet, or transported to a disposal facility from one
offeror.
(2) The 30 kg (66 pounds) gross weight limitation does not apply to
packages of limited quantity materials marked in accordance with Sec.
172.315 of this subchapter, or, until December 31, 2015, materials
classed and marked as ORM-D and described as a Consumer commodity, as
defined in 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, 2015, Sec. 172.316 of this subchapter.
20. In section 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, 2015, 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.
* * * * *
21. In section 173.165, paragraph (c) is revised to read as
follows:

Sec. 173.165 Polyester resin kits.

* * * * *
(c) Consumer commodities. Until December 31, 2015, 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.
22. 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 authorized transportation by aircraft
may only include articles or substances of Class 2 (non-toxic aerosols
only), Class 3 (Packing Group II and III only), Division 6.1 (Packing
Group III only), UN3077, UN3082, UN3175, UN3334, and UN3335, provided
such materials do not have a subsidiary risk and are authorized aboard
a passenger-carrying aircraft. Consumer commodities are excepted from
the specification outer packaging requirements of this subchapter.
Packages prepared under the requirements of this section may be offered
for transportation and transported by all modes. Additionally, the
following apply:
(1) Inner and outer packaging quantity limits. (i) Non-toxic
aerosols, as defined in 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;
(iii) Solids, in inner packagings not exceeding 500 g (1.0 pounds)
each; or
(iv) Any combination thereof not to exceed 30 kg (66 pounds) gross
weight as prepared for shipment.
(2) Closures. Friction-type closures must be secured by secondary
means. Examples of such methods include: adhesive tape, friction
sleeves, welding or soldering, positive locking wires, locking rings,
induction heats seals, and child-resistant closures. The body and
closure of any packaging must be constructed so as to be able to
adequately resist the effects of temperature and vibration occurring in
conditions normally incident to air transportation. The closure device
must be so designed that it is unlikely that it can be incorrectly or
incompletely closed.
(3) Absorbent material. Inner packagings must be tightly packaged
in strong outer packagings. Absorbent and cushioning material must not
react dangerously with the contents of inner packagings. Fragile
receptacles containing liquids of Class 3 or Division 6.1, sufficient
absorbent material must be provided to absorb the entire contents of
the largest inner packaging contained in the outer packaging. Absorbent
material is not required if such fragile inner packagings are
sufficiently protected as packaged for transport that it is unlikely a
failure would occur and, if a failure did occur, that it would be
unlikely that the contents would leak from the outer packaging.
(4) Pressure differential capability. Except for UN3082, inner
packagings intended to contain liquids must be capable of meeting the
pressure differential requirements (75 kPa) prescribed in 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.
(5) Drop test capability. Fragile inner packagings must be packaged
to prevent failure under conditions normally incident to transport.
Packages of consumer commodities must be capable of withstanding a 1.2
m drop on solid

[[Page 31288]]

concrete in the position most likely to cause damage.
(6) Stack test capability. Packages of consumer commodities must be
capable of withstanding, without failure or leakage of any inner
packaging and without any significant reduction in effectiveness, a
force applied to the top surface for a duration of 24 hours equivalent
to the total weight of identical packages if stacked to a height of 3.0
m (including the test sample).
(b) When offered for transportation by aircraft, packages prepared
under the requirements of this section are to be marked as a limited
quantity in accordance with 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.
23. 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, 2015, for other than
transportation by aircraft, a limited quantity that conforms to the
provisions of paragraph (g) of this section and is also a ``consumer
commodity'' as defined in 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), shipments of ORM-D materials
are not subject to the shipping paper requirements of subpart C of part
172 of this subchapter, unless the materials meet the definition of a
hazardous substance, hazardous waste, marine pollutant, or are offered
for transportation aircraft, and are eligible for the exceptions
provided in Sec. 173.156 of this part.
24. 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, 2015, 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.
* * * * *
25. 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.
(4) Each fire extinguisher must be protected externally by suitable
corrosion-resisting coating.
(5) Specification 3E and 4BA cylinders must be packed in strong
non-bulk outer packagings. The outside of the combination packaging
must be marked with an indication that the inner packagings conform to
the prescribed specifications.
(b) Limited quantities. Fire extinguishers charged with a limited
quantity of compressed gas to not more than 1660 kPa (241 psig) at 21
[deg]C (70 [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 (b). Packages must be
marked as specified for limited quantities in Sec. 172.315 of this
subchapter. Limited quantity shipments conforming to this paragraph are
not subject to parts 174 and 177 of this subchapter when transported by
highway or rail. In addition, limited quantity packages of fire
extinguishers are subject to the following conditions, as applicable:
(1) Each fire extinguisher must have contents which are
nonflammable, non-poisonous, and noncorrosive as defined in this
subchapter;
(2) Each non-specification fire extinguisher must be packaged as an
inner packaging within a combination outer packaging. Examples of
acceptable outer packagings for non-specification fire extinguishers
include large cartons, racks, cages or other suitable enclosures;
(3) Non-specification cylinders are authorized as fire
extinguishers subject to the following conditions:
(i) The internal volume of each cylinder may not exceed 18 L (1,100
cubic inches). For fire extinguishers not exceeding 900 mL (55 cubic
inches) capacity, the liquid portion of the gas plus any additional
liquid or solid must not completely fill the container at 55 [deg]C
(130 [deg]F). Fire extinguishers exceeding 900 mL (55 cubic inches)
capacity may not contain any liquefied compressed gas;
(ii) Each fire extinguisher manufactured on and after January 1,
1976, must be designed and fabricated with a burst pressure of not less
than six times its charged pressure at 21 [deg]C (70 [deg]F) when
shipped;
(iii) Each fire extinguisher must be tested, without evidence of
failure or damage, to at least three times its charged pressure at 21
[deg]C (70 [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; and
(iv) For any subsequent shipment, each fire extinguisher must be in
compliance with the retest requirements of the Occupational Safety and
Health Administration Regulations of the Department of Labor, 29 CFR
1910.157;
(4) Specification 2P or 2Q (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:
(i) 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);
(ii) 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); and

[[Page 31289]]

(iii) Each completed inner packaging filled for shipment must have
been heated until the pressure in the container is equivalent to the
equilibrium pressure of the contents at 55 [deg]C (130 [deg]F) without
evidence of leakage, distortion, or other defect.
(iv) Specification 2P and 2Q cylinders must be packed in strong
non-bulk outer packagings. The outside of the combination packaging
must be marked with an indication that the inner packagings conform to
the prescribed specifications.

PART 175--CARRIAGE BY AIRCRAFT

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

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

27. In 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.
* * * * *

PART 176--CARRIAGE BY VESSEL

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

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

29. In 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[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[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;
(4) The vehicle or mechanical equipment is electrically powered
solely by wet electric storage batteries (including nonspillable
batteries) or sodium batteries; or
(5) The vehicle or mechanical equipment is equipped with liquefied
petroleum gas or other compressed gas fuel tanks, the tanks are
completely emptied of liquefied or compressed gas and the positive
pressure in the tank does not exceed 2 bar (29 psig), the line from the
fuel tank to the regulator and the regulator itself is drained of all
traces of liquefied or compressed gas, and the fuel shut-off valve is
closed.
* * * * *

PART 178--SPECIFICATIONS FOR PACKAGINGS

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

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

31. In 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
* * * * *

Issued in Washington, DC, on May 18, 2012 under authority
delegated in 49 CFR part 106.
William Schoonover,
Deputy Associate Administrator, Field Operations, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2012-12523 Filed 5-24-12; 8:45 am]
BILLING CODE 4910-60-P