AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

PHMSA is issuing this final rule to amend the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the HMR with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations. Additionally, PHMSA is adopting several amendments to the HMR that would allow for increased alignment with the Transport Canada, Transportation of Dangerous Goods Regulations.

DATES:

Effective date: This rule is effective May 11, 2020, except for instruction 17, which is effective January 2, 2023.

Voluntary compliance date: January 1, 2019.

Delayed compliance date: May 10, 2021.

Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of May 11, 2020.

FOR FURTHER INFORMATION CONTACT:

Steven Webb, International Program or Aaron Wiener, International Program, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, East Building, 2nd Floor, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

III. Incorporation by Reference Discussion Under 1 CFR part 51

IV. NPRM Comment Discussion

V. Section-by-Section Review

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Final Rule

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

C. Executive Order 13771

D. Executive Order 13132

E. Executive Order 13175

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

G. Paperwork Reduction Act

H. Regulation Identifier Number (RIN)

I. Unfunded Mandates Reform Act of 1995

J. Environment Assessment

K. Privacy Act

L. International Trade Analysis and Executive Order 13609

M. National Technology Transfer and Advancement Act

List of Subjects

I. Executive Summary

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. This rulemaking project is part of PHMSA's ongoing biennial process to harmonize the HMR with international regulations and standards.

As part of this biennial process, PHMSA is amending the HMR to incorporate changes from the 20th Revised Edition of the UN Model Regulations, Amendment 39-18 of the International Maritime Dangerous Goods (IMDG) Code, and the 2019-2020 International Civil Aviation Organization (ICAO) Technical Instructions, which became effective January 1, 2019.^[1] Notable amendments to the HMR in this final rule include the following:

• Incorporation by Reference: PHMSA incorporates by reference the newest versions of various international hazardous materials (hazmat) standards, including: The 2019-2020 Edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions); Amendment 39-18 to the International Maritime Dangerous Goods Code (IMDG Code); the 20th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations); Amendment 1 to the 6th Revised Edition of the UN Manual of Tests and Criteria; and the 7th Revised Edition of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). Additionally, we are updating our incorporation by reference of the Transport Canada, Transportation of Dangerous Goods (TDG) Regulations to include: SOR/2016-95, published June 1, 2016; SOR/2017-137, published July 12, 2017; and SOR/2017-253, published December 13, 2017. Finally, PHMSA is adopting various updated International Organization for Standardization (ISO) standards.
• Hazardous Materials Table: PHMSA amends the Hazardous Materials Table (HMT; § 172.101) consistent with recent changes in the Dangerous Goods List of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. Specifically, PHMSA is making amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and passenger and cargo aircraft maximum quantity limits.
• Articles Containing Dangerous Goods: PHMSA adds a classification system for articles containing hazardous materials that do not already have a proper shipping name. This addresses situations in which hazardous materials or hazardous materials residues are present in articles, and authorizes a safe method to transport articles that may be too large to fit into typical packages.
• Lithium Battery Test Summary: PHMSA adds requirements regarding lithium battery test summaries. The HMR requires lithium battery manufacturers to subject lithium batteries and cells to appropriate UN design tests to ensure they are classified correctly for transport, and to develop records of successful test completion, called a test report. The test summary includes a standardized set of elements that provide traceability and accountability, thereby ensuring that lithium cell and battery designs offered for transport contain specific information on the required UN tests. The test summary must be made available to subsequent distributors.
• Baggage Equipped with Lithium Batteries: PHMSA is amending the aircraft passenger provisions for carriage of baggage equipped with lithium batteries intended to power features such as location tracking, battery charging, digital weighing, or motors (sometimes referred to as “smart luggage”). Specifically, baggage equipped with a lithium battery or batteries will be required to be carried in the cabin of the aircraft unless the battery or batteries are removed. This restriction in checked baggage does not apply to baggage containing lithium metal batteries with a lithium content not exceeding 0.3 grams, or lithium ion batteries with a Watt-hour (Wh) rating not exceeding 2.7 Wh.
• Segregation of Lithium Batteries from Specific Hazardous Materials: PHMSA is adding requirements to segregate lithium cells and batteries from certain other hazardous materials, notably flammable liquids, when offered for transport or transported on aircraft. PHMSA is taking this action to promote consistency with the ICAO Technical Instructions and to implement a National Transportation Safety Board (NTSB) Safety Recommendation (A-16-001) stemming from the investigation of the July 28, 2011, in-flight fire and crash of Asiana Airlines Flight 991 that resulted in the loss of the aircraft and crew. The investigation report cited the flammable materials and lithium ion batteries that were loaded together in either the same or adjacent pallets as a contributing factor to the accident.
• Alternative Criteria for Classification of Corrosive Materials: PHMSA is including non-testing alternatives for classifying corrosive mixtures using existing data on its chemical properties. Currently, the HMR require offerors to classify Class 8 corrosive material and assign a packing group based on test data. The HMR authorizes a skin corrosion test and various in vitro test methods that do not involve animal testing. However, data obtained from testing is currently the only data acceptable for classification and assigning a packing group. The alternatives added in this final rule afford offerors the ability to make a classification and packing group assignment without the need to conduct physical tests.
• Provisions for Polymerizing Substances: PHMSA is extending the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2023. This additional time will allow PHMSA to conduct research and analyze comments and data concerning the issue submitted to the docket for this rulemaking, to have a more comprehensive understanding of polymerizing substances and further consider the most appropriate transport provisions for these materials.

II. Background

Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) directs PHMSA to participate in relevant international standard-setting bodies and promotes consistency of the HMR with international transport standards to the extent practicable. Federal hazmat law permits PHMSA to depart from international standards where a more stringent standard or requirement is necessary in the public interest or if a different standard or requirement is unnecessary or unsafe. However, Federal hazmat law otherwise encourages domestic and international harmonization (see 49 U.S.C. 5120).

Harmonization facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials. Safety is enhanced by creating a uniform framework for compliance. As the volume of hazardous materials transported in international commerce continues to grow, harmonization is increasingly important.

PHMSA published a notice of proposed rulemaking (NPRM) under Docket HM-215O [83 FR 60970 (November 27, 2018)] to incorporate various amendments to harmonize the HMR with recent changes to the IMDG Code, ICAO Technical Instructions, and the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations (UN Model Regulations). When considering alignment of the HMR with international standards, PHMSA reviews and evaluates each amendment on its own merit, on the basis of its overall impact on transportation safety, and on the basis of the economic implications associated with its adoption into the HMR. PHMSA's goal is to harmonize without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community.

III. Incorporation by Reference Discussion Under 1 CFR Part 51

The UN Model Regulations, Manual of Tests and Criteria, and GHS, as well as all of the Transport Canada Clear Language Amendments, are free and easily accessible to the public on the internet, with access provided through the parent organization websites. The ICAO Technical Instructions, IMDG Code, and all ISO references are available for interested parties to purchase either print or electronic versions through the parent organization websites. The specific standards are discussed in greater detail in the section-by-section review (see § 171.7).

IV. NPRM Comment Discussion

In response to the November 27, 2018 NPRM [83 FR 60970], PHMSA received comments from the following organizations and individuals:

• Air Line Pilots Association, International (ALPA)
• Alaska Airlines
• Amazon
• American Coatings Association (ACA)
• Anonymous
• Anonymous 2
• Association of American Railroads and the American Short Line and Regional Railroad Association (AAR and ASLRRA)
• Association of Hazmat Shippers (AHS)
• The Basic Acrylic Monomer Manufacturers, Inc. (BAMM)
• Compressed Gas Association (CGA)
• Council on Safe Transportation of Hazardous Articles (COSTHA)
• Dangerous Goods Advisory Council (DGAC)
• The Dow Chemical Company (Dow)
• Frits Wybenga
• Gases and Welding Distributors Association
• Institute of Makers of Explosives (IME)
• Interested Parties for Hazardous Materials Transportation (Interested Parties)
• International Air Transport Association (IATA)
• International Vessel Operators Dangerous Goods Association (IVODGA)
• Yvonne Keller
• Medical Device Battery Transport Council (MDBTC)
• National Retail Federation (NRF)
• The Rechargeable Battery Association (PRBA)
• Reusable Industrial Packaging Association (RIPA)
• Transport Canada (TC)
• U.S. Chamber of Commerce (Chamber)
• Utility Solid Waste Activities Group (USWAG)

PHMSA received comments from the ACA, CGA, ALPA, IATA, DGAC, and the Chamber all providing general support for harmonization with international standards and additional support from CGA for the incorporation by reference of the proposed ISO standards. In addition, PHSMA received a comment from IME in support of updating the edition of the GHS that is incorporated by reference.

Comments concerning the issuance of a direct final rule, the sunset provisions for polymerizing substances, compliance and applicability dates for the test summary, fuel gas containment systems, damaged and defective lithium batteries, competency based training, and safety devices in dedicated handling devices are discussed below. PHMSA concluded that comments made by Anonymous 2, portions of comments made by MDBTC concerning “receipted for in one lot,” in § 173.185,^[2] portions of comments made by Alaska Airlines concerning air transport provisions for fish meal, and portions of comments made by IME concerning amendments to packaging instruction US 1 in § 173.62,^[3] are outside the scope of this rulemaking. Therefore, PHMSA did not address these comments in this rulemaking. All other comments specific to the respective HMR sections are addressed in the “Section-by-Section Review” of this document.^[4]

Delays in Issuing the Final Rule

PHMSA received a comment from AAR and ASLRRA that indicated the delay associated with publication of a final rule “presents immediate challenges for shippers and carriers involved in the transportation of hazardous materials across U.S. borders” and suggested alternative ways for proceeding with the rulemaking. PHMSA recognizes that a delay in publication of this final rule may have presented challenges for shippers and carriers. To mitigate these challenges, on December 18, 2018, PHMSA issued a Notice of Enforcement Policy Regarding International Standards authorizing the use of the applicable international standards.^[5] The notice explained that PHMSA would not take enforcement action against any offeror or carrier using the updated standards when all or part of the transportation is by air with respect to the ICAO TI, or all or part of the transportation is by vessel with respect to the IMDG code.

Sunset Provisions for Polymerizing Substances

In the March 30, 2017, final rule [HM-215N; 82 FR 15796], PHMSA added four new Division 4.1 entries for polymerizing substances to the HMT, and added defining criteria, authorized packagings, and safety requirements including, but not limited to, stabilization methods and operational controls into the HMR. In this prior rulemaking, PHMSA indicated that these changes would be in effect until January 2, 2019. During the interim time period between publication of that final rule and January 2, 2019, PHMSA indicated it would review and research the implications of the polymerizing substance amendments, and readdress the issue in the next international harmonization rulemaking. In the HM-215O NPRM, PHMSA proposed to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2021 as the research is still in progress. PHMSA received comments from BAMM, DGAC, and Dow expressing support for the extension of the sunset provisions proposed in the HM-215O NPRM. These commenters also requested that PHMSA harmonize the requirements for temperature control of polymerizing substances in portable tanks and testing requirements for these substances intended to be carried in portable tanks or intermediate bulk containers (IBCs) with those found in the transport international standards while awaiting the results of a currently underway research project.

DGAC and Dow requested that the previously adopted changes to § 173.21 in the March 30, 2017, final rule [HM-215N; 82 FR 15796], requiring temperature control at 50 °C for portable tanks carrying polymerizing substances be harmonized with the internationally adopted 45 °C, while PHMSA awaits the outcome of ongoing research into polymerizing substances. BAMM, DGAC, and Dow requested that PHMSA not require polymerizing substances intended to be transported in portable tanks or IBCs to undergo the Test Series E heating under confinement testing. The commenters requested that the provisions for polymerizing substances be harmonized with those found in the applicable international standards while PHMSA awaits the outcome of ongoing research into polymerizing substances. DGAC and Dow commented that differing domestic and international temperature control thresholds before temperature control is required would result in materials with a self-accelerating polymerization temperature (SAPT) greater than 45 °C and less than or equal to 50 °C being subject to temperature control when transported in portable tanks in the United States, but not elsewhere in the world. BAMM, DGAC, and Dow expressed their view that because the recommended test methods for Test Series E were not specifically designed for polymerizing substances that the test results would be meaningless. The commenters did not raise any new reasons for not adopting the provisions beyond those previously addressed in the March 30, 2017 final rule [HM-215N; 82 FR 15796]. PHMSA understands the concerns raised by the commenters, but to ensure the safe and efficient transportation of these commodities, PHMSA is adopting the provisions as proposed in the NPRM and codified in the March 30, 2017, final rule for the reasons that were previously outlined [HM-215N; 82 FR 15796, 15798-99]. In brief, the rationale for adopting the 50 °C SAPT threshold before temperature control is required for transport in portable tanks is primarily that 50 °C is the maximum temperature reasonable expected to be experienced by any selfreactive, organic peroxide, and/or polymerizing substance. The rationale for requiring Test Series E testing for polymerizing substances intended to be transported in portable tanks or IBC is that Test Series E (or an equivalent performance measure) provides information on how the material behaves when heated under confinement. For additional discussion of these issues refer to the March 30, 2017 final rule [HM-215N; 82 FR 15796, 15798-99].

To accommodate additional potential delays in completion and reviewing the results of the research project on polymerizing substances, PHMSA is extending the date for the sunset provisions for an additional two years beyond the date proposed in the NPRM. The new sunset date for transport provisions concerning polymerizing substances is January 2, 2023.

Lithium Battery Test Summary

In the NPRM, PHMSA proposed the inclusion of lithium battery test summary requirements. The test summary includes a standardized set of elements that provide traceability and accountability to ensure that lithium cell and battery designs offered for transport contain specific information on the required UN tests. PHMSA proposed that manufacturers and subsequent distributers of lithium cells and batteries manufactured after June 30, 2003 must make test summaries available to others in the supply chain. In the international standards, and as proposed in the NPRM, the lithium battery test summary requirements would have an effective date of January 1, 2020.

In response to the comments received, in this final rule, PHMSA is providing additonal background on the test summary. The development of the test summary by the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods spanned several years. The work was the outgrowth of an industry-identified problem concerning lack of availability of information needed to verify compliance and facilitate transportation. Specifically, the inability of shippers to access documentation verifying that lithium cells and batteries have successfully passed the tests prescribed in part III, sub-section 38.3 of the UN Manual of Tests and Criteria. In 2014, a trade association representing major rechargeable battery manufacturers relayed to the UN Sub-Committee that shippers were experiencing difficulties in verifying compliance with the UN 38.3 tests (See UN/SCETDG/46/INF.11, paragraph 15).^[6] It was the industry group's suggestion to work within the UN Sub-Committee towards a summary format that would facilitate making available essential compliance information to all concerned. This suggestion led the UN Sub-Committee over the next two years in cooperation with government and industry stakeholders to develop a standardized list of information to be included in a test summary (see ST/SG/AC.10/C.3/100, paragraph 56).^[7] PHMSA received several comments, which are discussed throughout this rulemaking and the associated RIA, concerning the potential costs of the test summary provisions. While providing no specific cost estimates, these commenters indicated that they believed implementing the test summary provisions as proposed would be more burdensome than PHMSA estimated. In this final rule, PHMSA is adopting changes to the compliance date, the implementation date, and several other variatons from the NPRM proposals that will reduce the burden on lithium cell and battery manufacturers and distributors.

Compliance Date

PHMSA received comments from Alaska Airlines, Amazon, Chamber, COSTHA, DGAC, MDBTC, NRF, PRBA, and an anonymous commenter concerning the proposed effective date of January 1, 2020 for the proposed test summary requirements. These commenters requested that PHMSA provide additional time to comply. Alaska Airlines commented that they hope the test summary requirements can be implemented by January 1, 2021. PRBA, Amazon, MDBTC, the Chamber, and NRF indicated that PHMSA should allow manufacturers and subsequent distributors until January 1, 2022 to comply with the test summary requirements. The DGAC recommended a one-year transition period following publication of the final rule. The commenters opined that the proposed compliance deadline of January 1, 2020 would not allow sufficient time for U.S. manufacturers and subsequent distributors of these products to establish procedures for preparing and securing test summaries. In their comments, NRF commented that it will take significant time for manufacturers and shippers, especially small companies, to develop and prepare the test summaries for their products. NRF opined that a longer implementation time will give companies enough time to identify, develop, and prepare the materials that are needed for compliance.

PHMSA agrees that additional time may be required to fully integrate systems, processes, and policies for preparing test summaries. The additional time can be used to help ensure the availability of test summaries and to prepare procedures for making test summaries available to subsequent distributors. In this final rule, the required compliance date for both the creation of and subsequent distribution upon request for test summaries is January 1, 2022.

COSTHA noted that using the same implementation date for both battery manufacturers and distributors presents the possibility that manufacturers could wait until December 31, 2021 to prepare the documents and distributors would not have any additional time to receive and make available the test summaries throughout the supply chain. COSTHA requested a staggered implementation date that would allow distributors an additional year to comply. PHMSA believes that the extended transition period for domestic implementation of the test summary requirements (two years after the requirements enter the IMDG Code and ICAO Technical Instructions) will mitigate this concern over shared implementation dates for shippers and distributors by providing additional time for battery distributers to work with manufacturers to acquire the necessary information and establish mechanisms for further distribution.

Applicability Date

PHMSA received comments from PRBA, NRF, DGAC, MDBTC, Amazon, and the Chamber requesting that PHMSA reconsider which lithium batteries require a test summary be created and made available. PHMSA proposed a requirement that a test summary be made available for all lithium cells and batteries manufactured after June 30, 2003, and that manufacturers and subsequent distributers of lithium cells and batteries manufactured after June 30, 2003, must make this information available to others in the supply chain.

PRBA commented that “[i]t is not practicable to require the post-hoc generation of a Test Summary for batteries that were manufactured as far back as 2003,” and asked that PHMSA adopt a date that requires the creation of test summaries and subsequent distribution for only batteries and cells manufactured after the effective date of the provisions. In conjunction with its request to extend the compliance date for the test summary generally to January 1, 2022, PRBA requests that only batteries and cells manufactured after this date require test summaries and subsequent distribution. The Chamber also requested that the applicability be limited to lithium cells and batteries manufactured after January 1, 2022 noting that “there may be times when distributors are shipping older battery designs that were manufactured by a company that is no longer in business. In instances like this, it may be impossible for shippers to acquire the necessary information for the TS.” The NRF and Amazon commented with similar requests to limit the scope of batteries subject to the test summary by using the effective date of the requirement which would then apply the requirements to cells and batteries currently in production and those made going forward. The NRF noted that it would be incredibly difficult and burdensome to locate a test certification and create a test summary for batteries dating back up to 17 years. MDBTC supported requiring test summary documents for only lithium cells and batteries manufactured after January 1, 2014.

PHMSA recognizes the comments noting the potential difficulty in obtaining test summaries for older batteries, particularly in cases where a manufacturer may no longer be in business or has merged with another company. Therefore, PHMSA is applying the test summary requirements only to cells and batteries manufactured after January 1, 2008. This date is the effective date of the final rule that required all lithium batteries (including small batteries) be of the type proven to meet the criteria in part III, sub-section 38.3 of the UN Manual of Tests and Criteria (“Hazardous Materials; Transportation of Lithium Batteries,” August 9, 2007, 72 FR 44929). As of January 1, 2008, all batteries transported in accordance with the HMR should have valid test reports that will help facilitate the creation of and availability of test summaries. PHMSA believes that amending the scope of cells and batteries that require a test summary to those manufactured after January 1, 2008 will lead to fewer instances where insufficient information will be available to create the required test summary while still capturing the majority of batteries and cells being offered for transportation.

PHMSA reiterates the importance of the test summary in providing confirmation to users that the battery is from a legitimate and compliant source and allowing those in the transport chain to more easily identify non-counterfeit products. Additionally, PHMSA maintains that the creation and subsequent distribution of test summaries for lithium batteries provides an enhanced mechanism for shippers to meet their existing requirement to only offer lithium cells and batteries of a type proven to meet the criteria in part III, sub-section 38.3 of the UN Manual of Tests and Criteria. The availability of specific information in the test summary document will enhance the users' ability to obtain the information needed to ensure they are receiving, and potentially reoffering for transportation, a battery that is of a tested and approved type.

Fuel Gas Containment Systems

In the NPRM, PHMSA discussed amendments to international standards that are not being considered for adoption. As stated in the NPRM, the 20th Revised Edition to the UN Model Regulations added a special provision to allow for the transportation of vehicle fuel gas containment systems containing certain gases, such as compressed natural gas and liquified petroleum gas, transported for disposal, recycling, repair, inspection, maintenance, or from where they are manufactured to a vehicle assembly plant. The provisions allow for gaseous fuels to be transported in fuel tanks designed for vehicles meeting certain European automotive standards rather than specification pressure receptacles. In the NPRM, PHMSA explained that the vehicle specification pressure vessels that are incorporated and authorized by the UN Model Regulations do not apply to U.S. domestic transportation as most of the fuel gas containment standards that are addressed in the UN Model Regulations are more appropriate for European road and rail regulations. PHMSA solicited comments on the fuel gas containment systems amendment in the UN Model Regulations and asked whether it would benefit industry to include a similar amendment in the HMR.

PHMSA received a comment from COSTHA on the decision not to include provisions for fuel gas containment decisions. The commenter disagreed with the view that the amendments are more appropriate for European regulations. COSTHA commented on the benefits of adopting the provisions into the HMR. COSTHA opined that when fuel tanks are removed from the vehicle and offered for transportation they are constructed to meet motor vehicle standards, but the tanks will not be permitted for transport of gaseous fuels under the HMR without the gas being completely removed from the tank. COSTHA further commented that the gas removal process has the potential to lead to dangerous situations at repair shops, dealers, and disposal locations not equipped to properly empty these fuel tanks. COSTHA notes that U.S. automobile manufacturers often use UN or Global Technical Regulations to demonstrate compliance with equivalent Federal Motor Vehicle Safety Standards (FMVSS).^[8] In addition, COSTHA supports referencing applicable FMVSS in the HMR to facilitate U.S. domestic gas containment system transport.

PHMSA thanks COSTHA for its comments on this topic, and PHMSA understands the concerns related to difficulties in ensuring gas is removed from these cylinders prior to transport, but it would be premature to adopt the FMVSS requirements into the HMR. The FMVSS requirements are not presently incorporated in the UN Model Regulations, and adoption of the FMVSS requirements would require additional coordination with Federal agencies outside of PHMSA. PHMSA may consider this action in a future rulemaking and invites COSTHA to file a petition for rulemaking in accordance with 49 CFR 106.95, 106.100 and 106.105, to formally request this change be made in the HMR. Additonally, PHMSA believes that a more comprehensive review of the current domestic standards used by vehicle fuel gas containment systems is necessary prior to incorporation in the HMR to help ensure safety standards that most closely align with existing practices are incorporated. The request could be further evaluated for merit to address in an upcoming rulemaking.

Damaged and Defective Lithium Batteries

In the NPRM, PHMSA discussed amendments to international standards not being considered for adoption. As stated in the NPRM, the 20th Revised Edition of the UN Model Regulations adopted transportation provisions for damaged and defective cells and batteries liable to rapidly disassemble, dangerously react, or produce a flame, a dangerous evolution of heat, or a dangerous emission of toxic, corrosive, or flammable gases or vapors under normal conditions of transport (UN Nos. 3090, 3091, 3480 and 3481). In the NPRM, PHMSA explained that the existing packaging and hazard communication requirements in § 173.185(f) sufficiently address consignments of this nature. PHMSA received one comment from MDBTC in support of not adopting the provisions for damaged and defective lithium batteries.

Competency-Based Training

PHMSA received comments from AAR and ASLRRA, ACA, AHS, Alaska Airlines, CGA, COSTHA, DGAC, Dow, IATA, IME, Interested Parties, IVODGA, MDBTC, and RIPA in response to our request for comments on the principles of Competency-Based Training, recently published in the attachments of the ICAO Technical Instructions. As noted in the NPRM, the provisions concerning Competency-Based Training were not finalized or adopted in the 2017-2018 ICAO Technical Instructions and there were no proposals concerning this topic in the NPRM. PHMSA thanks all commenters for their views on the issue and, as noted in the NPRM, comments will be considered for the betterment of PHMSA's work in various international forums.

Safety Devices in Dedicated Handling Devices

PHMSA received a comment from COSTHA concerning safety devices in dedicated handling devices. COSTHA commented that PHMSA should align the provisions of § 173.166(e)(4)(i) with the UN Model Regulations and the IMDG Code to authorize unpackaged articles in dedicated handling devices, vehicles, or containers to, from, or between where they are manufactured and an assembly plant including intermediate handling locations. PHMSA notes that the provisions adopted by the UN and the IMDG Code are currently authorized in §§ 173.166(e)(4)(i) and (ii), therefore no additional action is required.

V. Section-By-Section Review

The following is a section-by-section review of the amendments adopted in this final rule:

Part 171—General Information, Regulations, and Definitions

Section 171.7 Reference Material

Section 171.7 provides a listing of all voluntary consensus standards incorporated by reference into the HMR, as directed by the “National Technology Transfer and Advancement Act of 1995.” According to the Office of Management and Budget (OMB), Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” and in accordance with Sec 12(d)(1) of the “National Technology Transfer and Advancement Act of 1995,” government agencies must use voluntary consensus standards wherever practical in the development of regulations. When properly conducted, agency adoption of industry standards promotes productivity and efficiency in government and industry, expands opportunities for international trade, conserves resources, improves health and safety, and protects the environment.

PHMSA actively participates in the development and updating of consensus standards through representation on more than 20 consensus standard bodies, and it regularly reviews updated consensus standards to consider their merit for inclusion in the HMR. For this rulemaking, PHMSA evaluated updated international consensus standards pertaining to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. It determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These standards have well-established and documented safety histories, and their adoption will maintain the high safety standard currently achieved under the HMR. Therefore, in this final rule, PHMSA is adding and revising the following incorporation by reference materials:

• Paragraph (s)(2) is added, to incorporate the International Atomic Energy Agency Code of Conduct on the Safety and Security of Radioactive Sources. Section 172.800 references the incorporation by reference of this document; however, this entry does not currently appear in § 171.7. The addition of this paragraph corrects this oversight. The incorporation of this document in § 172.800 provides a list of Category 1 and 2 radioactive sources for which offerors or carriers require a security plan.
• Paragraph (t)(1), which incorporates the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), 2017-2018 Edition, is revised to incorporate the 2019-2020 Edition. These instructions contain the detailed instructions for the international transport of hazardous materials by air. In a previous rulemaking, [Docket No. PHMSA-2015-0102 (HM-219A); 83 FR 55792], PHMSA added § 172.407 to the list of sections in paragraph (t)(1) and (v)(2). The NPRM did not account for this addition, and in this final rule § 172.407 has been added to the list in paragraphs (t)(1) and (v)(2) consistent with the earlier published final rule.
• Paragraph (v)(2), which incorporates the International Maritime Organization International Maritime Dangerous Goods Code (IMDG Code), incorporating Amendment 38-16 (English Edition), is revised to incorporate the 39-18 (English Edition), 2018 Edition. This code contains detailed instructions for the international transport of hazardous materials by vessel.
• Paragraph (w), which incorporates various International Organization for Standardization entries, is revised to incorporate by reference standards for the specification, design, construction, testing, and use of gas cylinders:

—ISO 11118(E), Gas cylinders—Non-refillable metallic gas cylinders—Specification and test methods is replaced by ISO 11118:2015(E), Gas cylinders—Non-refillable metallic gas cylinders—Specification and test methods in paragraph (w)(53). The purpose of this standard is to provide a specification for the design, manufacture, inspection, and testing of non-refillable metallic gas cylinders for worldwide safe use, handling, and transport. The updated version of ISO 11118 includes, among other edits, clarified requirements for the processing of carbon steel to avoid strain aging and the inclusion of alternative temperatures for artificial aging of carbon steel cylinders prior to burst testing.

—ISO 11120(E), Gas cylinders—Refillable seamless steel tubes of water capacity between 150 L and 3000 L—Design, construction and testing, First edition, March 1999 is replaced by ISO 11120:2015(E), Gas cylinders—Refillable seamless steel tubes of water capacity between 150 L and 3,000 L—Design, construction and testing in paragraph (w)(62). This standard provides a specification for the design, manufacture, inspection and testing of tubes at the time of manufacture for worldwide usage. The updated version of ISO 11120 includes, among other edits, the modification of ultrasonic provisions for ultrasonic examination in 8.3 to include ultrasonic examination for wall thickness and for imperfections also on the supplied tubing and revision of the provisions for design of tubes for embrittling gases.

—ISO 11623(E), Transportable gas cylinders—Periodic inspection and testing of composite gas cylinders, First edition, March 2002 is replaced by ISO 11623:2015(E), Gas cylinders—Composite construction—Periodic inspection and testing in paragraph (w)(66). This standard specifies the requirements for periodic inspection and testing and to verify the integrity for further service of hoop-wrapped and fully-wrapped composite transportable gas cylinders, with aluminum-alloy, steel or non-metallic liners or of linerless construction (Types 2, 3, 4, and 5), intended for compressed, liquefied or dissolved gases under pressure, of water capacity from .5 L up to 450 L. The updated version of ISO 11623 includes, among other edits, updated terminology, particularly for the various types of composite cylinders, and moves information regarding intervals between periodic inspection and testing based on cylinder type into the new Annex C (formerly listed in Tables 1 through 4).

—ISO 14246:2014(E), Gas cylinders—Cylinder valves—Manufacturing tests and examination is added in paragraph (w)(69). This standard covers the function of a cylinder valve as a closure.

—ISO 16148:2016(E), Gas cylinders—Refillable seamless steel gas cylinders and tubes—Acoustic emission examination (AT) and follow-up ultrasonic examination (UT) for periodic inspection and testing is added in paragraph (w)(71). This International Standard describes two methods of AT, defined as Method A and Method B, and a method of follow-up UT. These non-destructive examination techniques are an alternative to conventional testing procedures for cylinders and tubes.

—ISO 17871:2015(E) Gas cylinders—Quick-release cylinder valves—Specification and type testing is added in paragraph (w)(72). This standard covers the function of a quick-release cylinder valve as a closure.

—ISO 21172-1:2015(E), Gas cylinders—Welded steel pressure drums up to 3,000 litres capacity for the transport of gases—Design and construction—Part 1: Capacities up to 1,000 litres is added in paragraph (w)(75). This standard provides a specification for the design, manufacture, inspection, and approval of welded steel gas pressure drums.

—ISO 22434:2006(E), Transportable gas cylinders—Inspection and maintenance of cylinder valves is added in paragraph (w)(76). This standard specifies the requirements for the inspection and maintenance of cylinder valves, including valves with integrated pressure regulators.

—ISO/TR 11364:2012(E), Gas cylinders—Compilation of national and international valve stem/gas cylinder neck threads and their identification and marking system is added in paragraph (w)(77). The purpose of this standard is to list all known cylinder/valve threads currently used and also threads used in the past and to specify a harmonized identification code and marking system for both cylinders and valves.

• Paragraphs (aa)(1)-(4), which updates four (4) existing Organization for Economic Cooperation and Development (OECD) guidelines concerning corrosivity testing (Nos. 404, 430, 431, & 435). The references to these standards are updated to the 2015 versions of the standards. Updated OECD Guideline 404 and OECD Guideline 435 contain minor variations in the types of information to be recorded as a part of the test report. Updated OECD Guideline 430 and OECD Guideline 431 include references to a developed document on integrated approaches to testing and assessment.
• Paragraph (bb)(1), which incorporates the Transport Canada Transportation of Dangerous Goods Regulations, adds subparagraphs (xx), (xxi), and (xxii), to include SOR/2016-95 published June 1, 2016; SOR/2017-137 published July 12, 2017; and SOR/2017-253 published December 13, 2017, respectively. These additions are to incorporate changes to the Transport Canada Transportation of Dangerous Goods Regulations. SOR/2016-95 contains amendments concerning reporting requirements and international restrictions on lithium batteries. SOR/2017-137 contains amendments related to international harmonization. SOR/2017-253 containes amendments related to marine transportation.
• Paragraph (bb)(2) is added to incorporate by reference Containers for Transport of Dangerous Goods by Rail, a Transport Canada standard that was published in 2013. The standard applies to the design, manufacture, maintenance and qualification of tank cars and ton containers and the selection and use of large containers or transport units used in the handling, offering for transport, or transporting of dangerous goods by rail.
• Paragraph (dd)(1), which incorporates the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations, 19th Revised Edition (2015), Volumes I and II, is revised to incorporate the 20th Revised Edition (2017), Volumes I and II. This standard presents a basic scheme of provisions that allow uniform development of national and international regulations governing the various modes of transport. In a previous rulemaking, [Docket No. PHMSA-2015-0102 (HM-219A); 83 FR 55792], PHMSA added § 172.519 to the list of sections in paragraph (dd)(1). The NPRM did not account for this addition and in this final rule, § 172.519 has been added to the list in paragraph (dd)(1) consistent with the earlier published final rule.
• Paragraph (dd)(2)(ii) is added to incorporate the United Nations Recommendations on the Transport of Dangerous Goods, Manual of Tests and Criteria, 6th Revised Edition, Amendment 1. This standard contains criteria, test methods, and procedures to be used for the classification of hazardous materials according to the UN Model Regulations.
• Paragraph (dd)(3), which incorporates the United Nations Recommendations on the Transport of Dangerous Goods, Globally Harmonized System of Classification and Labelling of Chemicals Sixth revised edition (2015), is revised to incorporate the United Nations Recommendations on the Transport of Dangerous Goods, Globally Harmonized System of Classification and Labelling of Chemicals (GHS), Seventh revised edition (2017). This standard helps identify the intrinsic hazards found in substances and mixtures and to convey information about these hazards.

Section 171.8 Definitions and Abbreviations

Section 171.8 defines terms generally used throughout the HMR that have broad or multi-modal applicability. In this final rule, PHMSA is amending the definition of “UN pressure receptacle” to include pressure drums. Additionally, PHMSA is adding a definition for “UN Pressure drum” to mean a welded transportable pressure receptacle of a water capacity exceeding 150 L and not more than 1,000 L (e.g., cylindrical receptacles equipped with rolling hoops, spheres on skids). These amendments provide defining terms related to pressure drums for which ISO 21172-1:2015(E) Gas cylinders—Welded steel pressure drums up to 3,000 litres capacity for the transport of gases—Design and construction—Part 1: Capacities up to 1,000 litres is incorporated in § 178.71.

Section 171.12 North American Shipments

Section 171.12 prescribes requirements for the use of the Transport Canada TDG Regulations. In a March 30, 2017, final rule [HM-215N; 82 FR 15796], PHMSA amended the HMR to expand recognition of cylinders and pressure receptacles, cargo tank repair facilities, and certificates of equivalency (an authorization to conduct an activity in compliance with the conditions of that authorization instead of the standard requirements) in accordance with the TDG Regulations. The goal of these amendments is to promote flexibility and permit the use of advanced technology for the requalification and use of pressure receptacles; doing so will provide for a broader selection of authorized pressure receptacles, reduce the need for special permits, and to facilitate cross-border transportation of these cylinders. In this final rule, PHMSA is clarifying the recognition of certificates of equivalency issued by Transport Canada. Transport Canada issues equivalency certificates as both a competent authority approval and for an alternative means of compliance with TDG Regulations. PHMSA provides reciprocity for equivalency certificates that are issued by Transport Canada as an alternative to the TDG Regulations; PHMSA does not provide recognition to Canada's competent authority approvals. In this final rule, PHMSA is amending paragraph (a)(1) to clarify the extent of reciprocity regarding certificates of equivalency.

Additionally, PHMSA is amending paragraph (a)(3)(v) to update the standard incorporated by reference to which Canadian rail cars must conform. The existing reference to the Canadian General Standards Board standard 43.147 is replaced with Containers for Transport of Dangerous Goods by Rail (2013).

PHMSA received comments of general support from the Dow and DGAC. Dow specifically mentioned support for the incorporation by reference of the Containers for Transport of Dangerous Goods by Rail and clarification of the certificates of equivalency.

PHMSA received a comment from Transport Canada suggesting that the terms “pressure drum” and “pressure receptacle” addressed in § 171.8 of this final rule, also be included in § 171.12 in a manner that promotes reciprocity between the United States and Canada. We agree with the commenter and in this final rule are adding the terms “pressure drum” and “UN pressure receptacle” to § 171.12 and authorizing use of these packages when marked with the letters “CAN.”

Part 172—Hazardous Materials Table, Special Provisions, Hazardous Materials Communications, Emergency Response Information, Training Requirements, and Security Plans

Section 172.101 Purpose and Use of Hazardous Materials Table

Section 172.101 contains the HMT and provides instructions for its use. In this final rule, PHMSA is revising the instructional text that precedes the HMT for paragraph (e) of this section.

Paragraph (e) of § 172.101 provides instructions for the use of column (4) of the HMT. Column (4) lists the identification number assigned to each proper shipping name. Most identification numbers are preceded by the letters “UN” and are associated with proper shipping names, which may be used for both domestic and international transportation. Some proper shipping names are assigned “NA” or “North American” numbers. In the NPRM, PHMSA proposed a revision to paragraph (e) to indicate that NA numbers are only recognized for use in the United States. In the NPRM, PHMSA stated that NA numbers are not authorized in Canada because the TDG limit the use of NA numbers to materials classified as “Consumer commodity,” and do not allow for the use of other NA numbers. Transport Canada made this amendment in August 15, 2001 with SOR 2001-186.^[9] The TDG, Part 9.1 Transporting Dangerous Goods from the United States into or through Canada state that the HMR may be followed as an alternative to the TDG if certain conditions are met, including that “the classification in Schedule 1 or in the UN Recommendations, for dangerous goods that have the letter “D” assigned to them in column 1 of the table to section 172.101 of 49 CFR, except for dangerous goods with the shipping name `Consumer commodity'.” The letter “D” is assigned to NA numbers. Therefore, NA numbers are not recognized for shipments from a place in the United States to a place in Canada or from a place in the United States through Canada to a place outside Canada. As such, PHMSA is revising the HMR to be consistent with Canada's national regulations. PHMSA received comments from DGAC on the use of NA numbers in § 172.101(e), North American Shipments. Specifically, DGAC stated this change will eliminate mutual recognition of NA numbers between the United States and Canada. Although the text in § 172.101(e), stating that NA numbers are not recognized for international transportation, except to and from Canada, was not previously amended to align with the TDG, the mutual recognition of NA numbers has not been permitted under the TDG since the August 15, 2001 publication. NA numbers will continue to be recognized for shipments within the United States.

1. Hazardous Materials Table (HMT)

In this final rule, PHMSA is amending the HMT. Readers should review all changes for a complete understanding of the amendments. For purposes of the U.S. Government Printing Office's typesetting procedures, proposed changes to the HMT appear under three sections of the Table, “remove,” “add,” and “revise.” Certain entries in the HMT, such as those with revisions to the proper shipping names, appear as a “remove” and “add.” The amendments to the HMT include the following:

2. New HMT Entries

• UN3537 Articles containing flammable gas, n.o.s.
• UN3538 Articles containing non-flammable, non-toxic gas, n.o.s.
• UN3539 Articles containing toxic gas, n.o.s.
• UN3540 Articles containing flammable liquid, n.o.s.
• UN3541 Articles containing flammable solid, n.o.s.
• UN3542 Articles containing a substance liable to spontaneous combustion, n.o.s.
• UN3543 Articles containing a substance which in contact with water emits flammable gases, n.o.s.
• UN3544 Articles containing oxidizing substance, n.o.s.
• UN3545 Articles containing organic peroxide, n.o.s.
• UN3546 Articles containing toxic substance, n.o.s.
• UN3547 Articles containing corrosive substance, n.o.s.
• UN3548 Articles containing miscellaneous dangerous goods, n.o.s.

PHMSA is adding a classification scheme for articles containing hazardous materials not otherwise specified by name in the HMR that contain hazardous materials of various hazard classes and divisions. This addresses transportation scenarios where various hazardous materials or hazardous materials residues are present in articles above the quantities currently authorized for dangerous goods in machinery or apparatus. This authorizes safe and secure methods to transport articles that may be too large to fit into typical packagings. Absent provisions to package and transport these materials safely, such articles may be offered for transport under provisions that do not adequately account for the physical and chemical properties of the substances or mode of transport and may require the issuance of an approval by the Associate Administrator for Hazardous Materials Safety.

• UN3535 Toxic solid, flammable, inorganic, n.o.s.

Consistent with the 20th Revised Edition of the UN Model Regulations, this new generic entry addresses toxic solids with a flammable subsidiary risk in Packing Groups (PG) I and II.

• UN3536 Lithium batteries installed in cargo transport unit lithium ion batteries or lithium metal batteries

This new HMT entry addresses lithium metal and lithium ion batteries that are installed in a cargo transport unit and designed only to provide power external to the cargo transport unit. The lithium batteries must meet the requirements of § 173.185 and contain the necessary systems to prevent overcharge and over discharge between the batteries. Such units are forbidden for transport on aircraft. PHMSA received one comment on the proposed changes to § 172.101 from PRBA supporting the new entry of UN3536 in the table.

3. Amendments to Column (2) Hazardous Materials Descriptions and Proper Shipping Names

Section 172.101(c) describes column (2) of the HMT and the requirements for hazardous materials descriptions and proper shipping names. For the entry “2-Dimethylaminoethyl acrylate,” the word “stabilized” is added to the end, as the substance has been determined to polymerize in certain conditions.

4. Amendments to Column (5) Packing Group

The HMT entries for articles “UN3316, Chemical kit” and “UN3316, First aid kit” are revised to remove Packing Group II and III assignments. This revision reverts the entries to a single row with the packing group column left blank as they existed prior to adding the Packing Group II and III assignments in a final rule published on January 8, 2015 [Docket No. PHMSA-2013-0260 (HM-215M); 80 FR 1075]. This revision addresses situations where materials in the kits are not assigned to a packing group or have Packing Group I assigned, as permitted by § 173.161.

5. Amendments to Column (7) Special Provisions

Section 172.101(h) describes column (7) of the HMT, which contains special provisions for each entry in the table. Section 172.102(c) prescribes the special provisions assigned to specific entries in the HMT. The modifications to the entries in the HMT are discussed below.

In an October 18, 2018, final rule, entitled “Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking” [(HM-259); 83 FR 52878], PHMSA removed special provision A6 from UN numbers 2789, 2790, 1715, 1717, 1723, 1732, 1739, 1758, 2240, 3264, 3265, 1764, 1765, 1768, 1775, 1776, 1778, 1777, 1782, 1786, 1790, 2031, 2308, 1808, 2258, 2879, 1818, 2564, 2699, 2502, 2443, and 2444. However, the HM-215O NPRM incorrectly showed special provision A6 as still being applicable to these entries. Therefore, in this final rule, A6 is not assigned to these HMT entries consistent with the previously published HM-259 final rule.

Similarly, in the HM-259 final rule, PHMSA removed special provision A3 from UN numbers 1739, 2604, 1758, 2240, 1183, 1777, 1242, 1798, 1873, 2879, 1828, 1831, 2699, and 2444. However, the HM-215O NPRM incorrectly showed special provision A3 as still being applicable to these entries. Therefore, in this final rule, A3 is not assigned to these HMT entries consistent with the previously published HM-259 final rule.

Finally, in a March 6, 2019, interim final rule (IFR) [(HM-224I); 84 FR 8006], PHMSA removed special provision A51 from UN3480 and added special provision A100 to UN 3480. However, the HM-215O NPRM did not account for this action and in this final rule, A51 is removed from UN3480 and A100 is added to UN 3480 consistent with the previously published HM-224I IFR.

See “Section 172.102 special provisions” below for a detailed discussion of the additions, revisions, and deletions to the special provisions addressed in this final rule.

• Special provision 325. Special provision 325 is added to the following HMT entries:

UN2912 Radioactive material, low specific activity (LSA-I) non-fissile or fissile-excepted

UN2913 Radioactive material, surface contaminated objects (SCO-I or SCO-II) non-fissile or fissile-excepted

UN2915 Radioactive material, Type A package non-special form, non-fissile or fissile-excepted

UN2916 Radioactive material, Type B(U) package non-fissile or fissile-excepted

UN2917 Radioactive material, Type B(M) package non-fissile or fissile-excepted

UN2919 Radioactive material, transported under special arrangement, non-fissile or fissile-excepted

UN3321 Radioactive material, low specific activity (LSA-II) non-fissile or fissile-excepted

UN3322 Radioactive material, low specific activity (LSA-III) non-fissile or fissile-excepted

• Special provision 347. Special provision 347 restricts the use of certain HMT entries classed as Division 1.4S explosive materials to those articles successfully passing Test Series 6(d) of Part I of the UN Manual of Tests and Criteria. The 6(d) test is a test on a single package to determine if there are hazardous effects outside the package arising from accidental ignition or initiation of the contents. A Division 1.4 explosive is defined as an explosive that presents a minor explosion hazard such that hazardous effects are confined to a package and no projection of fragments of appreciable size or range are expected; and that an external fire must not cause virtually instantaneous explosion of almost the entire contents of a package containing a Division 1.4 explosive. Explosive articles or substances are assigned to Division 1.4, Compatibility Group S (1.4S) if hazardous effects are confined within a package or the blast and projection effects do not significantly hinder emergency response efforts.

Special provision 347 is presently assigned to eight (8) Division 1.4S entries in the HMT including shaped charges, detonators, power device cartridges, detonator assemblies, and plastic bonded bursting charges. Following a review of other Division 1.4S entries, the UN Working Group on Explosives supported applying special provision 347 to entries for Division 1.4S articles and substances that are generic or “not otherwise specified” (n.o.s.), and to UN 0367 (Fuzes, detonating) that are normally package dependent. The UN Working Group noted that generic entries normally warrant more systematic testing. In the NPRM, PHMSA requested comment on whether this provision is likely to have net benefits. PHMSA received one comment from IME stating that the “addition of the special provision will benefit transportation safety and that the additional costs are, accordingly justified.” Therefore, in this final rule, consistent with the UN Model Regulations, PHMSA is adding special provision 347 to the following entries:

UN0349 Articles, explosives, n.o.s.

UN0367 Fuzes, detonating

UN0384 Components, explosive train, n.o.s.

UN0481 Substances, explosive, n.o.s.

• Special provision 368. Special provision 368 prescribes requirements for non-fissile or fissile-excepted uranium hexafluoride that must be described as UN3507 or UN2978, as appropriate. Based on an informal working paper submitted at the 50th session of the UN Sub-Committee of Experts (SCOE) on the Transport of Dangerous Goods that highlighted potential errors in the 19th revised edition of the Model Regulations, it was agreed that special provision 368 should have been assigned to “UN 2908, Radioactive material, excepted package—empty packaging” because empty uncleaned packagings containing residues of non-fissile or fissile-excepted uranium hexafluoride should be classified under UN3507 or UN2978 as appropriate. Therefore, in this final rule, PHMSA is assigning special provision 368 to the following entry to aid shippers:

UN2908 Radioactive material, excepted package—empty packaging.

• Special provision 369. Special provision 369 is revised for clarity and is applicable to the following HMT entry:

UN3507 Uranium hexafluoride, radioactive material, excepted package, less than 0.1 kg per package, non-fissile or fissile-excepted

• Special provision 383. Consistent with the deletion of this special provision in section 172.102, special provision 383 is removed from the following PG II HMT entries:

UN1133 Adhesives, containing a flammable liquid

UN1263 Paint related material including paint thinning, drying, removing, or reducing compound

UN1263 Paint including paint, lacquer, enamel, stain, shellac solutions, varnish, polish, liquid filler and liquid lacquer base

UN1210 Printing ink, flammable or Printing ink related material (including printing ink thinning or reducing compound), flammable

UN1866 Resin Solution, flammable

• Special provision 388. New special provision 388 is added to the following HMT entries:

UN3090 Lithium metal batteries including lithium alloy batteries

UN3091 Lithium metal batteries contained in equipment including lithium alloy batteries

UN3091 Lithium metal batteries packed with equipment including lithium alloy batteries

UN3480 Lithium ion batteries including lithium ion polymer batteries

UN3481 Lithium ion batteries contained in equipment including lithium ion polymer batteries

UN3481 Lithium ion batteries packed with equipment including lithium ion polymer batteries

• Special provision 389. New special provision 389 providing applicable transport conditions is added to the following new HMT entry:

UN3536 Lithium batteries installed in cargo transport unit lithium ion batteries or lithium metal batteries

• Special provision 391. New special provision 391 is added to the following new HMT entries:

UN3537 Articles containing flammable gas, n.o.s.

UN3538 Articles containing non-flammable, non-toxic gas, n.o.s.

UN3539 Articles containing toxic gas, n.o.s.

UN3540 Articles containing flammable liquid, n.o.s.

UN3541 Articles containing flammable solid, n.o.s.

UN3542 Articles containing a substance liable to spontaneous combustion, n.o.s.

UN3543Articles containing a substance which in contact with water emits flammable gases, n.o.s.

UN3544 Articles containing oxidizing substance, n.o.s.

UN3545 Articles containing organic peroxide, n.o.s.

UN3546 Articles containing toxic substance, n.o.s.

UN3547 Articles containing corrosive substance, n.o.s.

UN3548 Articles containing miscellaneous dangerous goods, n.o.s.

• Special provision B136. PHMSA is adding new special provision B136 to the following HMT entries:

UN1363 Copra

UN1386 Seed cake, containing vegetable oil solvent extractions and expelled seeds, with not more than 10 percent of oil and when the amount of moisture is higher than 11 percent, with not more than 20 percent of oil and moisture combined

UN1386 Seed cake with more than 1.5 percent oil and not more than 11 percent moisture

UN1398 Aluminum silicon powder, uncoated

UN1435 Zinc ashes

UN2071 Ammonium nitrate based fertilizer

UN2216 Fish meal, stabilized or Fish scrap, stabilized

UN2217 Seed cake with not more than 1.5 percent oil and not more than 11 percent moisture

UN2793 Ferrous metal borings or Ferrous metal shavings or Ferrous metal turnings or Ferrous metal cuttings in a form liable to self-heating

• Special provisions W31 and W32. Special provision W32 is removed from the following PG I HMT entries (unless otherwise noted in Table 1) and replaced with special provision W31:

• Special provision W40. Special provision W40 prohibits the use of non-bulk bags. This requirement typically applies to solid substances in Packing Group II. Consistent with changes made in Amendment 39-18 of the IMDG Code, special provision W40 is removed from the following HMT entries:

UN1396 Aluminum powder, uncoated (PG III)

UN1398 Aluminum silicon powder, uncoated

UN1403 Calcium cyanamide with more than 0.1 percent of calcium carbide

UN1405 Calcium silicide (PG III)

U3208 Metallic substance, water-reactive, n.o.s. (PG III)

Additionally, PHMSA is adding special provision W40 to the following HMT entry:

UN3208 Metallic substance, water-reactive, n.o.s. (PG II)

6. Amendments to Column (10) Vessel Stowage Requirements

Section 172.101(k) explains the purpose of column (10) of the HMT and prescribes the vessel stowage and segregation requirements for specific entries. Column (10) is divided into two columns: Column (10A) [Vessel stowage] specifies the authorized stowage locations on board cargo and passenger vessels, and column (10B) [Other provisions] specifies special stowage and segregation provisions. The meaning of each code in column (10B) is set forth in § 176.84.

In the NPRM, PHMSA proposed to amend various vessel stowage codes assigned to explosives articles to allow under deck stowage of these articles when not in closed cargo transport units (CCTUs). PHMSA received a comment from IME noting support for the changes, but indicating that the commercial ports used by their industry in the United States require commercial explosives to be containerized regardless of whether they are shipped on deck or under deck. PHMSA reiterates that these changes also allow the shipment of large and robust articles that while generally contained in some manner (e.g. a custom built crate, cradle, or box) may not fit in a traditional CCTU. The changes made in this final rule authorize such transport when not in a traditional CCTU. While these changes do not authorize the break bulk stowage of explosive substances, they do facilitate the movement of larger explosive articles.

The following table addresses this issue through modification of the stowage categories for individual UN numbers for which under deck stowage was previously permitted prior to Amendment 36-12 of the IMDG Code. Table 2 contains the changes listed in numerical order by UN identification number and additionally lists the proper shipping name, the previous column (10A) entry, and the adopted column (10A) entry.

Consistent with changes to Amendment 39-18 of the IMDG Code, PHMSA is making numerous changes to the special stowage and segregation provisions [Other provisions] indicated in column (10B) of the HMT.

Amendment 39-18 of the IMDG Code amended multiple entries to ensure proper segregation between acids and both amines and cyanides. Amines react dangerously with acids, evolving heat, and the heat of reaction has the potential to generate corrosive vapors. Cyanides react with acids to generate toxic vapors. However, current vessel segregation requirements are inconsistent. Therefore, PHMSA is applying stowage codes 52, 53, and 58—which require stowage “separated from acids,” “separated from alkaline compounds”, and “separated from cyanides,” respectively—to column 10B of the HMT, as shown in Table 3, below.

Consistent with changes adopted in Amendment 39-18 of the IMDG Code, PHMSA is adding existing stowage codes 12 and 25 to entries in the HMT. Vessel stowage code 12 requires keeping the cargo as cool as reasonably practicable. Vessel stowage code 25 requires protecting shipments from sources of heat. PHMSA is adding codes 12 and 25 to Nitrocellulose with alcohol with not less than 25 percent alcohol by mass, and with not more than 12.6 percent nitrogen, by dry mass, UN 2556. The addition of these two vessel stowage codes will help ensure that nitrocellulose is stowed so as to keep it as cool as practicable during transportation and to avoid possible loss of stabilization material in packages. Additionally, PHMSA is adding stowage code 25 to Dipropylamine, UN 2383 consistent with changes adopted in Amendment 39-18 of the IMDG Code.

PHMSA is adding vessel stowage codes to multiple HMT entries for uranium hexafluoride. In a previous final rule [Docket No. PHMSA-2015-0273 (HM-215N); 82 FR 15796] a subsidiary hazard of 6.1 was added to the UN 2977 and UN 2978 Uranium hexafluoride entries, and the primary hazard for UN 3507, Uranium hexafluoride, radioactive material, excepted package was changed from 8 to 6.1. Consequential amendments to the stowage and segregation requirements codes for these materials were not addressed at the time of these changes in the IMDG Code or the HMR. In this final rule, PHMSA is adding existing vessel stowage code 74 and new vessel stowage codes 151 and 153 to UN 2977 and UN 2978. Additionally, PHMSA is adding new vessel stowage code 152 to UN 3507. Stowage code 74 requires stowage separated from oxidizers. See a section-by-section discussion on the proposed changes to § 176.84 for a description of stowage codes 151, 152 and 153. These amendments are necessary to ensure appropriate stowage and segregation provisions that account for the subsidiary and tertiary hazards of these commodities.

Finally, we are adding new stowage provision 154 and assigning it to the NA 0124, NA 0494, UN 0494, and UN 0124 jet perforating gun HMT entries. This new stowage provision indicates that, notwithstanding the stowage category assigned to the entries in the HMT, jet perforating guns may be stowed in accordance with the provisions of packing instruction US 1 in § 173.62. See the discussion on stowage provision 154 in the § 176.84 section by section portion of this rulemaking.

7. Appendix B to § 172.101—List of Marine Pollutants

Appendix B to § 172.101 lists marine pollutants regulated under the HMR. Based on the test data submitted to PHMSA, the USCG, and the IMO, Amendment 39-18 of the IMDG Code was updated to indicate that 1-dodecene is not a marine pollutant. In this final rule, PHMSA is amending the entry for “Dodecene” in the list of marine pollutants in Appendix B to § 172.101 to indicate that 1-dodecene is not a marine pollutant, and as a result, shipments of 1-dodecene are not subject to the provisions of the HMR applicable to marine pollutants.

Section 172.102 Special Provisions

Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions contain packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. In this final rule, PHMSA is revising the following § 172.102 special provisions:

• Special provision 132. This special provision prescribes conditions for use of description “UN 2071, Ammonium nitrate based fertilizer, Class 9.” As the composition limits and requirement on self-sustaining decomposition were replaced by a flow chart in sub-section 39.5 of the Manual of Tests and Criteria, part III, section 39, the corresponding UN Model Regulations special provision 193 was revised by removing the specific conditions and making a reference to the applicable section of the UN Manual of Tests and Criteria. Consistent with these changes to the UN Model Regulations, in this final rule, PHMSA is revising special provision 132 by removing the specific conditions applicable to use of this description and clarifying that UN 2071 may only be used for ammonium nitrate-based compound fertilizers and that they must be classified in accordance with the procedure as set out in the Manual of Tests and Criteria, part III, section 39.
• Special provision 150. This special provision prescribes conditions for use of description “UN 2067, Ammonium nitrate based fertilizer, Division 5.1.” As the composition limits were replaced by a flow chart in sub-section 39.5 of the Manual of Tests and Criteria, part III, section 39, the corresponding UN Model Regulations special provision 307 was revised by removing the specific conditions and making a reference to the applicable section of the UN Manual of Tests and Criteria. Consistent with these changes to the UN Model Regulations, in this final rule, PHMSA is revising special provision 150 by removing the specific conditions applicable to use of this description by clarifying that UN 2067 may only be used for ammonium nitrate-based fertilizers and that they must be classified in accordance with the procedure as set out in the Manual of Tests and Criteria, part III, section 39.
• Special provision 238. Special provision 238 prescribes the requirements for neutron radiation detectors containing boron trifluoride. In a final rule published under [(HM-215N); 82 FR 15796], special provision 238 was revised to align with special provision 373 of the UN Model Regulations. In reformatting the special provision for alignment, several of the preexisting references to paragraphs within the special provision were not revised accordingly. Therefore, PHMSA is removing the first instance of the text “a.” in the introductory text as it is not necessary and inadvertently results in two paragraphs with the same letter header. In paragraph e, the references to preceding paragraphs within the special provision are revised from a(1), a(2), and a(3) to a, b, and c, respectively.
• Special provision 325. Consistent with a pre-existing special provision 325 in the UN Model Regulations, PHMSA is adding new special provision 325 to assist shippers of this material by clarifying that in the case of non-fissile or fissile-excepted uranium hexafluoride, the material must be classified as “UN2978 Radioactive material, uranium hexafluoride non fissile or fissile-excepted.” In this final rule, PHMSA is assigning special provision 325 to the following entries to aid shippers:

UN2912 Radioactive material, low specific activity (LSA-I) non fissile or fissile-excepted

UN2913 Radioactive material, surface contaminated objects (SCO-I or SCO-II), non-fissile or fissile excepted

UN2915 Radioactive material, Type A package non-special form, non fissile or fissile-excepted

UN2916 Radioactive material, Type B(U) package non fissile or fissile-excepted

UN2917 Radioactive material, Type B(M) package non fissile or fissile-excepted

UN2919 Radioactive material, transported under special arrangement, non fissile or fissile-excepted

UN3321 Radioactive material, low specific activity (LSA-II) non fissile or fissile-excepted

UN3322 Radioactive material, low specific activity (LSA-III) non fissile or fissile excepted

• Special provision 369. Special provision 369 prescribes requirements for UN3507, Uranium hexafluoride, radioactive material, excepted package, less than 0.1 kg per package, non-fissile or fissile-excepted. In this final rule, PHMSA is revising the first sentence of the special provision for editorial clarity by replacing the words “a radioactive material and corrosive subsidiary risk” with “radioactivity and corrosive subsidiary risks.”
• Special provision 383. PHMSA is removing special provision 383, which allows certain high viscosity flammable liquids, when offered for transportation by motor vehicle, to be reassigned to Packing Group III when packaged in UN metal drums with a capacity not exceeding 220 L (58 gallons). Amendments to § 173.121 in this final rule provide a larger capacity package, additional packaging options, and more modes of transport (all modes except air). PHMSA believes these amendments to § 173.121 provide more regulatory relief than special provision 383 currently offers, and is deleting special provision 383 and removing the special provision from the HMT for those entries to which it is assigned.
• Special provision 387. Special provision 387 is revised to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019, to January 2, 2023.
• Special provision 388. Consistent with the UN Model Regulations, PHMSA is adding new special provision 388, which prescribes requirements for lithium batteries containing both primary lithium metal cells and rechargeable lithium ion cells that are not designed to be externally charged and for which the existing provisions for lithium batteries do not adequately address. Such batteries must meet the following conditions: (1) The rechargeable lithium ion cells can only be charged from the primary lithium metal cells; (2) overcharge of the rechargeable lithium ion cells is precluded by design; (3) the battery has been tested as a primary lithium battery; and (4) component cells of the battery must be of a type proved to meet the respective testing requirements of the UN Manual of Tests and Criteria, part III, subsection 38.3. Lithium batteries conforming to special provision 388 must be assigned to UN Nos. 3090 or 3091, as appropriate. When such batteries are transported in accordance with § 173.185(c), the total lithium content of all lithium metal cells contained in the battery must not exceed 1.5 g and the total capacity of all lithium ion cells contained in the battery must not exceed 10 Wh.
• Special provision 389. In conjunction with the new HMT entry “UN3536, Lithium batteries installed in cargo transport unit lithium ion batteries or lithium metal batteries,” PHMSA is adding new special provision 389, which prescribes requirements for lithium ion batteries or lithium metal batteries installed in a cargo transport unit and designed only to provide power external to the cargo transport unit.

This special provision, which captures many of the safety elements included in previous approvals issued by PHMSA, specifies that the lithium batteries must meet the requirements of § 173.185(a) and contain the necessary systems to prevent overcharge and over-discharge between the batteries. The batteries inside the cargo transport unit are not subject to marking or labelling requirements of part 172 subparts D and E of this subchapter. The cargo transport unit shall display the UN number in a manner in accordance with § 172.332 of this subchapter and be placarded on two opposing sides.

The batteries must be securely attached to the interior structure of the cargo transport unit (e.g., by means of placement in racks, cabinets, etc.) in such a manner as to prevent short circuits, accidental operation, and significant movement relative to the cargo transport unit under the shocks, loadings, and vibrations normally incidental to transport. Further, hazardous materials necessary for the safe and proper operation of the cargo transport unit (e.g., fire extinguishing systems and air conditioning systems), must be properly secured to or installed in the cargo transport unit and are not otherwise subject to this subchapter. Lastly, other hazardous materials must not be transported within the cargo transport unit.

• Special provision 391. As part of the classification and packaging framework for “Articles containing dangerous goods” adopted in this rulemaking, PHMSA is adding new special provision 391, which prohibits articles containing certain high-hazard materials of Division 2.3, Division 4.2, Division 4.3, Division 5.1, Division 5.2, or Division 6.1 (substances with a inhalation toxicity of Packing Group I) and articles containing more than one of the following hazards from being offered for transport or transported, except under conditions approved by the Associate Administrator for Hazardous Materials Safety: (1) Gases of Class 2; (2) Liquid desensitized explosives of Class 3; or (3) Self-reactive substances and solid desensitized explosives of Division 4.1.
• Special provision 421. Special provision 421 is revised to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2023.
• Special provision 422. PHMSA is revising special provision 422 to remove the transition period authorizing lithium battery Class 9 labels conforming to requirements in place on December 31, 2016 to continue to be used until December 31, 2018.
• Special provision A56. Special provision A56 prescribes the requirements for radioactive materials with subsidiary hazards when transported by aircraft. In this final rule, PHMSA is revising special provision A56 consistent with the revisions made to special provision A78 in the 2019-2020 ICAO Technical Instructions. Specifically, where the subsidiary hazard material is listed as “Forbidden” in column (9A) or (9B) of the § 172.101 Table, the radioactive material may only be offered for transportation and transported by aircraft under conditions approved by the Associate Administrator.
• Special provision A105. PHMSA is revising special provision A105, which prescribes requirements for the air transport of machinery or apparatus containing hazardous materials as an integral element of the machinery or apparatus. Where the quantity of hazardous materials contained as an integral element in machinery or apparatus exceeds the limits permitted for air transport in § 173.222, and the hazardous materials meet the provisions of § 173.222 for other than air transport, the machinery or apparatus may be transported by aircraft only with the prior approval of the Associate Administrator for Hazardous Materials Safety.
• Special provision B136. Consistent with the 20th Revised Edition of the UN Model Regulations, PHMSA is adding new special provision B136 that authorizes non-specification closed bulk bins for the following solid substances:

UN1363 Copra

UN1386 Seed cake, containing vegetable oil solvent extractions and expelled seeds, with not more than 10 percent of oil and when the amount of moisture is higher than 11 percent, with not more than 20 percent of oil and moisture combined

UN1386 Seed cake with more than 1.5 percent oil and not more than 11 percent moisture

UN1398 Aluminum silicon powder, uncoated

UN1435 Zinc ashes

UN2071 Ammonium nitrate based fertilizer

UN2216 Fish meal, stabilized or Fish scrap, stabilized

UN2217 Seed cake with not more than 1.5 percent oil and not more than 11 percent moisture

UN2793 Ferrous metal borings or Ferrous metal shavings or Ferrous metal turnings or Ferrous metal cuttings in a form liable to self-heating

• Portable tank special provisions: PHMSA is revising Portable Tank Special Provision TP10, assigned to UN 1744, to authorize a three-month extension for the transportation of bromine portable tanks for the purposes of performing the next required liner test—after emptying, but before cleaning.
• Special provisions W31 and W32. Special provision W32 currently requires non-bulk packagings to be hermetically sealed, except for solid fused material. Amendment 39-18 of the IMDG Code removed the qualifying text from the equivalent special packaging provision. Discussions at the International Maritime Organization noted that when a substance evolves flammable gases when in contact with water at the rate and quantity meeting the classification requirements for a Division 4.3 material, there is no safety justification to permit their transportation in packagings which are not hermetically sealed. In Amendment 39-18, the text “except for solid fused material” was removed from special packing provision PP31 in packing instruction P403. Consistent with the IMDG Code PHMSA is deleting special provision W32 and assigning W31, which requires non-bulk packagings to be hermetically sealed regardless of the form of the material.

Section 172.203 Additional Description Requirements

Section 172.203 prescribes additional description requirements for shipping papers. In the NPRM, PHMSA proposed revising § 172.203(o)(2), to require that the words “TEMPERATURE CONTROLLED,” when appropriate, be added to the proper shipping name for Division 4.1 (polymerizing substance and self-reactive) and Division 5.2 (organic peroxide), if not already indicated in the HMT. PHMSA received a comment from DGAC noting that the HMT lists only four (4) n.o.s. entries for “polymerizing materials,” two of which identify that the material is stabilized and the other two of which already include the words “temperature controlled.” Therefore, the commenter states that the addition of “polymerizing substances” to this listing is unnecessary. PHMSA points out that polymerizing substances are not limited to the four (4) n.o.s. entries, but also include HMT entries assigned special provision 387. While it may be the case that all organic peroxides and self-reactive materials that require temperature control are assigned to HMT entries that include the words “temperature control” the same does not apply to polymerizing substances. Therefore, in this final rule PHMSA is revising paragraph (o)(2) as proposed in the NPRM. This amendment provides notice to those in the transport chain that a material is being offered under temperature control.

In the NPRM, PHMSA proposed revising paragraph § 172.203(o)(3) by requiring that for samples of polymerizing substances, the word “SAMPLE” must be included in association with the basic description. PHMSA received comments from DGAC and Dow. Both commented that the corresponding regulatory reference in paragraph (o)(3) to § 173.224(c)(3) applies to self-reactive substances but not to polymerizing substances, and noted that there are no equivalent requirements in the HMR for samples of polymerizing substances. DGAC also noted that requiring the word “SAMPLE” for all polymerizing substances would create disharmony with the provisions in the IMDG code, which only require “SAMPLE” to be included on the transport document for self-reactive materials and organic peroxides. PHMSA agrees with the commenters and is not revising paragraph (o)(3) in this final rule.

Additionally, PHMSA is adding polymerizing substances to the list of types of materials that the additional documentation requirements in paragraph (o) apply to.

Section 172.407 Label Specifications

Section 172.407 prescribes specifications for hazard communication labels. Consistent with changes made in Amendment 39-18 of the IMDG Code and the 2019-2020 ICAO Technical Instructions, PHMSA is amending paragraph (c)(1) to remove the requirement that the width of the solid line forming the inner border of labels must be at least 2 mm. Additionally, we are amending the requirement that the solid line inner border, currently required to be 5 mm inside and parallel to the edge, to include the word “approximately” before 5 mm. These changes provide flexibility for minor labeling variations that do not have an appreciable impact on transportation safety. Finally, paragraph (c)(1)(iii) which contains a transitional exception allowing for labels in conformance with the requirements of 49 CFR 172.407(c)(1) (revised October 1, 2014) to continue to be used until December 31, 2018, is removed and reserved. PHMSA received comments from IME, DGAC and MDBTC expressing support for the revision of label border specifications. Yvonne Keller commented that changes to § 172.407 (c)(1) that were made in a previous final rule on Nov. 7, 2018 [(HM-219A); 83 FR 55792], would be overwritten by the proposed changes in the NPRM. The changes to (c)(1) in this rulemaking were intentional and consistent with changes made to international standards and adequately account for the changes to this paragraph in HM-219A.

Section 172.514 Bulk Packagings

Section 172.514 prescribes placarding requirements and exceptions for a bulk packaging containing a hazardous material. The general placarding requirements prescribe that bulk packagings are to be placarded on each side and each end. Due to the form and shape (e.g., round) of flexible bulk containers, it is impractical to require placards on each side and each end. Consistent with the IMDG Code, in this final rule, PHMSA is allowing flexible bulk containers to be placarded on two opposing sides. PHMSA received a comment from DGAC supporting the changes to placarding requirements for flexible bulk containers.

Section 172.604 Emergency Response Telephone Number

Section 172.604 prescribes requirements for emergency response telephone numbers. Paragraph (d) identifies materials for which an emergency response telephone number is not required when offered for transportation. In a March 30, 2017, final rule [(HM-215N); 82 FR 15796], PHMSA harmonized the HMR with international regulations by adopting separate HMT entries for internal combustion engines based on the fuel, (e.g., engine, internal combustion, flammable liquid powered and engine, internal combustion, flammable gas powered). Previously, a single HMT entry covered all engines. At that time, we did not amend § 172.604(d)(2) to ensure that “engines, internal combustion” offered under any of the new proper shipping names would continue to be excepted from the emergency response telephone requirements of § 172.604. In this final rule, PHMSA is amending paragraph (d)(2) to list all possible proper shipping names for engines per the original intent. PHMSA received a comment from DGAC supporting the change to the requirements for shipping descriptions of internal combustion engines. In a previous rulemaking [(HM-219A); 83 FR 55792], PHMSA made amendments to § 172.604 to clarify that excepted quantities do not require an emergency response telephone number. This final rule amends the same section, but accounts for the changes made in HM-219A.

Section 172.800 Purpose and Applicability

Section 172.800 prescribes the requirements for developing and implementing plans to address security risks related to the transportation of hazardous materials in commerce. During review of existing material that is incorporated by reference into the HMR it was noted that the International Atomic Energy Agency (IAEA) Code of Conduct Category 1 and 2, while referenced in paragraph (b)(15), was not appropriately incorporated by reference (see § 171.7). In this final rule, PHMSA is incorporating by reference the IAEA Code of Conduct on the Safety and Security of Radioactive Sources into paragraph (b)(15). Furthermore, we are revising a reference to known radionuclides in forms listed as RAM-QC by the Nuclear Regulatory Commission, to Nuclear Regulatory Commission, Category 1 and Category 2 radioactive materials as listed in Table 1, Appendix A to 10 CFR part 37. Lastly, we are listing the reference to Highway Route Controlled Quantities separately in this paragraph. This amendment does not require the creation and retention of security plans by any new individuals, but simply incorporates by reference the appropriate IAEA reference and clarifies the existing requirement.

Part 173—Shippers—General Requirements for Shipments and Packagings

Section 173.2a Classification of a Material Having More Than One Hazard

Section 173.2a outlines classification requirements for materials having more than one hazard. PHMSA is amending paragraph (a) to indicate the appropriate classification precedence for the new “Articles” HMT entries added in this final rule. This change gives guidance to offerors and shippers using the new HMT entries numbers that do not conform to a single hazard class.

Section 173.6 Materials of Trade Exceptions

Section 173.6 provides authorization for certain hazardous materials meeting the definition of a material of trade (MOT) to be transported by motor vehicle in conformance with this section and be excepted from all other requirements of this subchapter if certain quantity limitations, packaging provisions, and hazard communication requirements are met. In two recent rulemakings [(HM-218H); 81 FR 35483] and [(HM-215N); 82 FR 15796], PHMSA removed packing group assignments from Column (5) of the HMT for all organic peroxides (Division 5.2), self-reactive substances (Division 4.1), explosives (Class 1), and specific articles containing hazardous materials indicated in Table 4 below. This removal of an indication of packing group for these materials and articles has led to questions about the ability of these materials and articles to utilize the MOTs exceptions provided in § 173.6. Further, this final rule adds 12 new proper shipping names for articles that are also not assigned a packing group. See “Section 172.101 Hazardous Materials Table (HMT)” for a detailed discussion of this addition.

It was not the intention of these previous rulemakings to exclude these materials and articles from the ability to utilize the MOTs exceptions, provided the hazardous materials within the articles comply with the existing quantity limitations and other transport provisions of § 173.6. In this final rule, PHMSA is adding a new paragraph (a)(7) to clarify that materials and articles for which Column (5) of the HMT in § 172.101 does not indicate a packing group are authorized to utilize the MOTs exceptions as applicable, and indicate the appropriate quantity limits applicable to those materials in articles. For all materials and articles for which a packing group was recently removed from the HMT, the corresponding section referenced in Column (8) of the § 172.101 Table requires packaging meeting either Packing Group II or III performance level or non-specification packaging. Therefore, the quantity limits in the new paragraph (a)(7) will reference the PG II or PG III limits in § 173.6(a)(1)(ii) or § 173.6(a)(3) for articles containing Division 4.3 materials, as appropriate. PHMSA received a supporting comment from USWAG stating: “We are pleased to note that PHMSA has proposed this change in the current rulemaking. We appreciate PHMSA's efforts to correct this important oversight.” In addition, PHMSA is revising paragraph (b)(3) to clarify the securement requirement for the transportation of articles under the MOTs exceptions.

Section 173.21 Forbidden Materials and Packages

Section 173.21 describes the situations in which the offering for transport or transportation of materials or packages is forbidden. In this final rule, PHMSA is reinstating the provisions adopted in the HM-215N final rule. A delayed effective date of January 2, 2019 was placed on amendment 22 of the HM-215N final rule, which reinstated the provisions of § 173.21 in place prior to publication of that rule. Section 173.21 was not mentioned in the NPRM for this final rule because there was no amendment to make at the time, as the effective text of the section on the date of publication of the NPRM was the text we are reinstating in this final rule. The provisions that previously sunset on January 2, 2019 are reinstated in this final rule. PHMSA is extending the date for the sunset provisions for an additional two years versus the date proposed in the NPRM. The new sunset date for transport provisions concerning polymerizing substances is January 2, 2023. This addition is consistent with the discussion above on polymerizing substances and associated research in the background and comment discussion sections of this rulemaking.

Section 173.62 Specific Packaging Requirements for Explosives

Section 173.62 outlines specific packaging requirements for explosives. In paragraph (c), in the Table of Packing Methods, Packing Instruction US 1 containing packing instructions for jet perforating guns, PHMSA is increasing the maximum authorized amount of explosive contents per tool pallet and cargo vessel compartment from 90.8 kg to 95 kg. These limits are consistent with a provision added to Amendment 39-18 of the IMDG Code authorizing jet perforating guns to be transported to or from offshore oil platforms, mobile offshore drilling units, and other offshore installations in offshore well tool pallets, cradles, or baskets. PHMSA notes that the amendments adopted in section 7.1.4.4.5 of Amendment 39-18 of the IMDG Code require both ends of jet perforating guns to be protected by means of steel end caps. PHMSA is not adopting this additional requirement for steel end caps noting the safe transportation record of these explosive articles under the existing requirements of the HMR. PHMSA received one comment from IME supporting the increase in the maximum authorized amount of explosive contents per tool pallet and cargo vessel compartment and PHMSA's decision to not require steel end caps, leaving the existing HMR requirement intact.

Section 173.121 Class 3—Assignment of Packing Group

Section 173.121 provides the criteria for the assignment of packing groups to Class 3 materials. Paragraph (b) provides criteria for viscous flammable liquids of Class 3 (e.g., paints, enamels, lacquers, and varnishes) to be placed in packing group III on the basis of their viscosity, coupled with other criteria. Consistent with recent changes to the IMDG Code, PHMSA is amending paragraph (b)(1)(iii) to authorize a packaging capacity up to 450 L (119 gallons), an increase from the presently authorized 30 L. A working paper submitted to the IMO Sub-Committee on Carriage of Cargoes and Containers noted that both the UN Model Regulations and The European Agreements Concerning the International Carriage of Dangerous Goods by Road and Rail allow receptacles up to 450 L, and that due to the nature of viscous materials (e.g., lower flow rate in the event of damage to a receptacle, and lower levels of solvent vapors), which present a lower fire risk than non-viscous flammable liquids, there has been a history of safe transport of these materials by road and rail since the introduction of the provision.

This change will increase the allowed volume of viscous liquids in a single package and will be applicable to all modes except for air. Specifically, in this final rule, PHMSA is increasing the packaging limits for viscous flammable liquids of Packing Group II material that may be assigned Packing Group III. For transport by vessel, PHMSA is increasing the limit from 30 L to 450 L. For transport by rail and highway, PHMSA is increasing the limit from 100 L to 450 L. Consistent with the ICAO Technical Instructions, the packaging quantity limits for air will remain 30 L for passenger aircraft and 100 L for cargo aircraft.

Section 173.124 Class 4, Divisions 4.1, 4.2 and 4.3—Definitions

Section 173.124 contains definitions for Class 4, Divisions 4.1, 4.2, and 4.3. In this final rule, PHMSA is amending paragraph (a)(4)(iv) to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019, to January 2, 2023. See the background and comment discussion sections of this rulemaking for a more detailed discussion on polymerizing substances.

Section 173.127 Class 5, Division 5.1—Definition and Assignment of Packing Groups

Section 173.127 provides a definition and criteria for the assignment of packing groups for Division 5.1 Oxidizers. A new Section 39 in the UN Manual of Tests and Criteria was introduced containing all provisions for the classification of ammonium nitrate based fertilizers. As a consequence of the new section, existing text in both the UN Manual of Tests and Criteria and the UN Model Regulations was amended or removed to avoid duplicative provisions in both publications. In this final rule, PHMSA is revising the classification criteria for ammonium nitrate based fertilizers by requiring that they are classified in accordance with the procedures prescribed in the UN Manual of Tests and Criteria, Part III, Section 39. These changes will not result in changes to the current classification provisions for ammonium nitrate fertilizers, but rather consolidate the provisions for ease of use and to prevent inadvertent misclassification.

Section 173.134 Class 6, Division 6.2—Definitions and Exceptions

Section 173.134 provides definitions and exceptions for infectious substances. Consistent with the UN Model Regulations, PHMSA is revising the definition for “patient specimen” in paragraph (a)(4) by removing redundant references to humans and animals.

Section 173.136 Class 8—Definitions

Section 173.136 provides the definition for corrosive materials. In the UN Model Regulations, the definition for corrosive materials was revised to align with the text in Chapter 3.2 of the UN GHS and the OECD Test Guidelines for Testing of Chemicals. PHMSA is amending the definition in paragraph (a) for a corrosive material by replacing the text “full thickness destruction” with “irreversible damage.” Harmonized terminology increases understanding and reduces the potential for confusion between those in the transport and storage and use sectors.

Section 173.137 Class 8—Assignment of Packing Group and Appendix I to Part 173

Section 173.137 prescribes the requirements for assigning a packing group to Class 8 (corrosive) materials. Currently, the HMR require offerors to classify Class 8 material and assign a packing group based on test data. The HMR authorize a skin corrosion test and various in vitro test methods that do not involve animal testing. Data obtained from the currently authorized test methods is the only data acceptable for classification and assignment of a packing group. In this final rule, consistent with changes to the UN Model Regulations, PHMSA is adding alternative packing group assignment methods for making a corrosivity classification determination for mixtures that do not involve testing. These amendments include bridging principles and a calculation method for the classification of mixtures. Bridging principles include; dilution, batching, concentration of mixtures of PG I, interpolation within one packing group, and provisions for substantially similar mixtures.

In a new paragraph (d), PHMSA is creating an alternative, tiered approach to classification and packing group assignment depending on how much information is available about the mixture itself, similar mixtures, and/or the mixture's ingredients. When sufficient data is available on similar mixtures to estimate skin corrosion hazards for bridging, the bridging principle method may be used to classify and assign a packing group. When no bridging data is available, the more conservative calculation method may be used. When there is not sufficient information to determine a packing group using the non-testing methods described in paragraph (d), the testing and criteria in § 173.137 introductory paragraph and (a)-(c) must be applied. To emphasize this point, PHMSA is adding an additional line to Figure 1 in paragraph (d) to state that in such cases the testing and criteria in § 173.137 introductory paragraph and (a)-(c) must be applied to the mixture. This tiered approach ensures an appropriate level of safety in situations where reliable test data on that specific mixture may not be available. These alternatives for classifying corrosive mixtures provide opportunities for offerors to make a classification and packing group assignment without having to conduct physical tests.

Additionally, the new corrosivity classification methods are much more closely aligned with those found in the UN GHS. However, not all GHS corrosivity classification methods were incorporated in the UN Model Regulations corrosivity requirements. For example, the use of extreme pH values to assign corrosivity was not addressed in the UN Model Regulations, and as such is not adopted in this final rule.

PHMSA is replacing all instances of the text “full thickness destruction” with “irreversible damage” consistent with the change to the definition of a corrosive material in § 173.136. PHMSA is also adding a new Appendix I to part 173, containing a flow chart for use with the calculation method.

The corrigendum to the 20th Revised edition of the UN Model Regulations made several corrections to the calculation method classification criteria that were not included in the NPRM. Consistent with the UN Model Regulations, the last sentence of paragraph (d)(2)(i)(B) in the NPRM was added to a new paragraph (d)(2)(i)(B) and the following subparagraphs were renumbered accordingly. The new paragraph (d)(2)(i)(B) provides additional guidance on the use of the flow chart added in Appendix I to part 173.

Finally, PHMSA is updating the four existing OECD Guidelines currently incorporated by reference in this section to their 2015 versions (Test Nos. 404, 430, 431, and 435). OECD Guideline 404 addresses in vivo testing and OECD Guidelines 430, 431, and 435 address in vitro testing. OECD Guideline 404 and OECD Guideline 435 contain minor variations in the types of information to be recorded as a part of the test report in relation to the previously incorporated versions. OECD Guideline 430 and OECD Guideline 431 were updated to include a reference to a developed document on integrated approaches to testing and assessment.

Section 173.159 Batteries, Wet

Section 173.159 prescribes the requirements applicable to the transportation of electric storage batteries containing electrolyte acid or alkaline corrosive battery fluid (i.e., wet batteries). Consistent with the UN Model Regulations, PHMSA is making several editorial amendments in paragraphs (a) and (d) to specify that electrically non-conductive packaging materials must be used and that contact with other electrically conductive materials must be prevented.

Section 173.185 Lithium Cells and Batteries

Section 173.185 prescribes requirements for lithium cells and batteries. The introductory paragraph defines terms as used in this section. In § 173.185(a), the HMR describe UN cell and battery design testing, general cell and battery design safety requirements, and packaging requirements. In this final rule, PHMSA clarifies in paragraph (a)(1) that a single cell battery is considered a “cell” and must be transported in accordance with the requirements for cells. PHMSA is also amending § 173.185(a) to include a lithium cell and battery test summary (TS) with a standardized set of elements. Manufacturers and subsequent distributers of lithium cells and batteries manufactured on or after January 1, 2008 must make this information available to others in the supply chain. This action is intended to provide subsequent distributors and consumers the information necessary to ensure that lithium cells and batteries that are offered and reoffered for transport contain specific information on the required UN tests.

PHMSA received comments on the test summary from Alaska Airlines, Amazon, the Chamber, COSTHA, DGAC, IATA, MDBTC, NRF, and PRBA. MDBTC noted “our Council understands the rationale behind the TS Document and, if implemented effectively, agrees with PHMSA and international regulators that making vital battery information more accessible will enhance the safety of all lithium battery shipments.” IATA commented that it believes “the availability of the test summary will improve safety by providing clear visibility that the lithium cell and battery types have been tested as required.” Amazon commented that there are other effective methods for improving the safe transportation of lithium batteries, including common safety messaging across the supply chain, expanding supplier outreach, and improved packaging methods. Amazon noted that the test summary requirements, if implemented strategically and with appropriate clarity, could complement these other measures. However, Amazon suggested that additional outreach may be needed to ensure manufacturers and suppliers are informed of the new test summary requirements. Amazon further states that there is no publicly available data that supports the claim that the test summary requirement would improve the safe transport of lithium batteries. PHMSA recognizes that internal process improvements implemented by shippers (e.g., supplier outreach and common safety messaging) may also positively impact lithium battery transportation safety. Additionally, PHMSA is aware of, and is participating in, ongoing research into packaging solutions and classification criteria for lithium batteries. As previously stated, PHMSA believes that the test summary will ensure shippers are verifying that a cell or battery is from a legitimate and compliant source, and allow those in the transport chain to more easily identify non-counterfeit products.

Comments on the compliance date and applicability date for the lithium battery test summary are addressed in the “Comments Received” section of this rulemaking. The requests that PHMSA reexamine the test summary document's impact for businesses, specifically small businesses, are addressed in the “Information Collection” section of this rulemaking and the Regulatory Impact Analysis (RIA). The remaining comments received regarding the proposed test summary requirements requested clarifications on terminology and when the document must be made available, exceptions for button cell batteries, and additional clarification of the docketed guidance document.

Requests for Clarification on Terminology and When the TS Must Be Made Available

PHMSA received a comment from COSTHA that asked for clarification that in addition to being required for cells and batteries, a test summary is only required for equipment where the safety components of the equipment are necessary for the cells or batteries contained to pass the relevant UN sub-section 38.3 tests (e.g., when the overcharge protection for a battery is part of the equipment circuit board and not installed in the battery), and would not be required for all devices containing lithium batteries. In response to this comment, PHMSA would like to clarify that a test summary document is required for all cells and batteries manufactured on or after January 1, 2008, without regard to whether they are transported as standalone shipments, contained in equipment, packed with equipment, or used in vehicles. As noted in the “New UN Requirements for Lithium Battery Test Summaries” ^[10] guidance document found in the docket for this rulemaking, product manufacturers of devices containing lithium batteries are not required to create new test summary documents for their products if compliant test summaries have been created and are made available for the batteries contained in those products. Product manufactuerers may use existing test summaries for the batteries in their devices to meet their obligation to make them available to subsequent distributors. PHMSA also understands that there may be instances where device manufacturers desire to create a test summary for a product containing a lithium cell or battery. While not required, creating a test summary for a specific device rather than using an existing test summary applicable to a battery installed in the device is authorized if the required elements of the test summary are provided.

Amazon requested that PHMSA require that manufacturers create a complete test summary for each lithium battery and lithium battery product and require that manufacturers post the summary online for widespread access for anyone in the supply chain. As proposed in the NPRM and adopted in this final rule, manufacturers and each subsequent distributor of lithium cells or batteries must make available test summaries as specified in § 173.185. PHMSA expects that the first entity offering the cell or battery into transport would likely create the document for use by subsequent offerors or end users. However, the HMR intentionally do not specify who must create the test summary to provide implementation flexibility. The “make available” phrase is also intentional to allow for compliance through any means manufacturers and subsequent distributors find best fits their business needs and capabilities. Any method that ensures the information is made available to downstream distributors would be acceptable. This includes the envisioned least burdensome method of posting the information or links to the information on websites. Other possible methods include, but are not limited to, emailing copies of the required information or providing physical hard copies with shipments.

PHMSA received comments from Amazon, COSTHA, MDBTC, and NRF regarding the entity in the transportation chain that must make the test summary available and the phrase “each manufacturer and subsequent distributor.” Amazon and NRF commented that because the supply chain for lithium batteries involves many different entities acting in different roles, the phrase “subsequent distributor” should be defined. Amazon and NRF suggested that PHMSA clarify “subsequent distributor” by defining it as limited to entities and persons who possess and transfer title to lithium batteries and lithium battery products. MDBTC commented that one of the most challenging aspects of implementing the test summary requirement will be to clearly delineate the role of a “subsequent distributor.” COSTHA requested that PHMSA confirm that the use of the term “distributor” is only to emphasize that proof of successful design type testing is needed by shippers of lithium batteries, and that distributors are the logical persons to have such information needed for the TS, and that ultimately it is the shipper's responsibility to obtain the information for proof of classification. COSTHA also commented that the terms “offerors” and “subsequent offerors,” which are more commonly used in transportation regulations, would provide more clarity. We confirm COSTHA's understanding that in addition to manufacturers, distributors of lithium batteries are a logical entity to have information needed for a TS and that a shipper or offeror of lithium batteries is the person ultimately responsible for ensuring that lithium cells and batteries offered for transport contain specific information on the required UN tests. In response to the requests to define “subsequent distributor,” PHMSA does not believe that a definition of “subsequent distributor” is necessary, as the intent is simply to indicate in broad terms the persons responsible for providing test summary information. PHMSA does not believe that the language proposed by Amazon and NRF defining “subsequent distributor” as those who possess and transfer title to lithium batteries and lithium battery products provides additional clarity as the phrase “transfer title to” is not understood in the context of the HMR. We note that the phrase “subsequent distributor” is also used in section § 178.2(c) of the HMR, applicable to package closure notifications, requiring manufacturers and subsequent distributors to notify each person to whom the package is transferred with appropriate closure information.

In its comments, MDBTC stated that the proposed requirement for subsequent distributors to verify that a test summary document is available for all of the products it ships could be “extremely burdensome” and could potentially require the hiring of additional staff to verify the presence of a test summary. MDBTC suggests that a more reasonable approach would be for shippers of lithium cells and batteries to notify upstream distributors of test summary requirements but not to require the explicit verification for each shipment. MDBTCs comment contains no specific cost estimates, other than referencing the potential need to hire additional staff to manage the test summary requirements. PHMSA is cognizant of the costs associated with compliance such as creation of the test summary and activities related to subsequent distribution (see the “Information Collection” section of this rulemaking and the Regulatory Impact Analysis (RIA)), but notes that lithium batteries are already subject to the design testing requirements. Other than contacting the manufacturer, shippers currently have no way to confirm compliance with the UN design testing requirements. The proposed requirement provides a means for shippers to comply with the HMR when previously no such mechanism existed. Retrieving a test summary and ensuring it is made available to subsequent distributors will result in most instances in a one-time action and cost for each cell or battery design type offered for transportation (e.g., verifying the existence of the information and procuring a copy or creating a link for their own further use). It is expected to streamline what is currently a difficult process. While it is a requirement to make a test summary available for shipments of lithium cells or batteries, PHMSA does not intend to require a positive verification that the information has been received by each downstream customer. For instance, a distributor who has posted copies of test summaries or links to the appropriate test summaries on a website accessible to the next downstream distributor has made the test summaries available. There would be no additional burden on the initial distributor unless contact was initiated by the subsequent distributor who is unable to locate a test summary.

MDBTC also submitted comments concerning who can make a request for a test summary, suggesting that requests should be limited to an actual distributor and not just anyone from the public or a person that is attempting to collect information not related to transport. MDBTC indicates that this limitation would be especially critical with respect to new product development and protecting proprietary information. While it is not envisioned that consumers of lithium batteries or products containing lithium batteries would generally request a test summary, if they are going to be offering the batteries back into transportation it would be necessary for them to have access to this information. The information required in the test summary was specifically crafted so as not to require proprietary information or information that would hinder product development.

Amazon commented that PHMSA should clarify that if a subsequent distributor cannot obtain a test summary, but has a process in place to accurately classify lithium batteries, that distributor will not be subject to enforcement action for failure to provide a test summary for a specific product. PHMSA disagrees with the commenter. In accordance with § 173.185(a)(1), each lithium cell or battery must be of the type proven to meet the criteria in part III, sub-section 38.3 of the UN Manual of Tests and Criteria. Therefore, a lithium cell or battery could not be classified unless the information provided on the test summary was available. If a distributor or other person in the transportation chain is classifying lithium cells or batteries, the information needed to develop a test summary must be available to that person.

COSTHA compared the test summary requirements to those for safety data sheets (SDS) required by the Occupational Safety and Health Administration (OSHA) under their Hazard Communication Standard in 29 CFR, § 1910.1200. Manufacturers of hazardous chemicals are required to develop and make available safety data sheets that indicate the hazards associated with the hazardous chemicals that may be encountered in the workplace. COSTHA notes that SDSs are required to be provided by distributors to commercial customers, but not to non-commercial customers. COSTHA notes that test summary distributors would be required to provide the testing summary to a greater relative population than OSHA requires SDSs to be made available. PHMSA reiterates that the HMR require that shippers of lithium cells and batteries know that their batteries are of a tested type. If a non-commercial customer does not intend to offer the battery or cell for transportation there would be no requirement for them to further make the test summary available.

Requests for Exceptions for Button Cell Batteries

DGAC and MDBTC requested PHMSA provide an exception from the requirement to provide a test summary for button cells installed in equipment or articles. The commenters noted that button cells installed in equipment are excepted from packaging and marking requirements under existing regulations. While lithium button cell batteries are excepted from certain requirements in the HMR and international standards, they are not excepted from the requirement to be of a tested type. The purpose of the test summary is provide information to downstream shippers that the lithium battery passed required tests and can be accepted or offered for transport. The primary benefit of the test summary is the increased visibility of the presence of lithium batteries particularly in products, and the ability of individuals in the transport chain to determine that that the lithium cells and batteries they offer for transport are of a tested type. If PHMSA was to accept the suggestions of MDBTC and DGAC to except equipment containing lithium button cell batteries from the test summary requirements, the benefits attributed to these provisions would not be gained. Excepting certain button cells and batteries from the test summary requirement does not enhance compliance and could lead to confusion on whether these cells and batteries are even subject to the design tests.

Requests for Clarification on the Docketed Guidance Document

PHMSA drafted a guidance document to assist manufacturers and distributors with understanding and implementing this requirement. The guidance includes an explanation of the requirement, a sample test summary, and questions and answers. A copy of this guidance is available in the docket for this rulemaking. In the NPRM, PHMSA requested comment on the usefulness of the guidance. PHMSA also requested comment to help improve its clarity and provide additional questions to add to the guidance. PHMSA received comments from COSTHA, MDBTC, PRBA, and the Chamber concerning the guidance document, which are categorized as follows:

• Must the test summary accompany the shipment
• Additional input on the development of the guidance document
• Devices containing different battery types
• Test summary availability

Must the Test Summary Accompany the Shipment

In their comments, COSTHA and MDBTC provided general support for PHMSA's effort to issue a guidance document. COSTHA suggested that the HMR and guidance document should be amended to clarify that the test summary document is not required to be provided as documentation with each shipment, noting that PHMSA cannot prohibit industry from implementing its own procedures, such as requiring additional documentation be provided with a shipment. The guidance document available in the docket addressed this question. Specifically, on page 5 of the guidance document, question and answer number 7. The question: “Must a manufacturer or distributor include the TS with product shipments?” The answer: “No, the product manufacturer or distributor would have to make the information available. This may be achieved by placing this information on a website or through alternative means.”

PHMSA is not amending the HMR, as it believes the text in paragraph (a)(3) sufficiently addresses the commenters concern by indicating that the test summary must be made “available upon request.” The summary document does not need to physically accompany a shipment containing lithium batteries. PHMSA supports making the test summary available by electronic means and may revise the guidance document for clarification.

Additional Input on the Development of the Guidance Document

COSTHA requested that PHMSA revise the guidance document once the final rule is issued and subsequently update it on a periodic basis with input from stakeholders. COSTHA also requested that PHMSA solicit additional input on the guidance document before the end of 2019 as experience gained both domestically and internationally could be captured in the guidance document for future reference. MDBTC requested that PHMSA revise the guidance document prior to issuing a final rule and consider soliciting additional input on the document. PHMSA does not believe an additional round of comments is necessary prior to publishing the final rule since comments were already received. PHMSA does intend to update the guidance to account for comments received in response to the NPRM. PHMSA also intends to update the guidance document as regulations change and when experience and feedback from stakeholders dictate a need.

Devices Containing Different Battery Types

In its comments, MDBTC suggested that the guidance document should address situations where any number of different commercially available cells or batteries may be installed in a medical device. Specifically, the commenter indicated that while each battery supplier may have made the test summary available, it is a challenge to identify which battery is in the product, especially when it may be one of several similar batteries produced by different suppliers. PHMSA answered this question on page 5 of guidance document. The test summary requirement may be satisfied by using multiple, different test summaries for the batteries themselves, or by issuing a comprehensive test summary for the device that includes information for all of the batteries contained within the device.

Test Summary Availability

PHMSA received comments from Amazon, DGAC, MDBTC, NRF, PRBA, and the Chamber concerning the timeframe in which the test summary must be provided following a request. The commenters asked for clarification as to what constitutes a “reasonable time and location.” NRF, PRBA, and the Chamber suggested PHMSA clarify that a “reasonable” time does not mean that the test summary must be made available immediately upon request. Amazon suggested that PHMSA should clarify that “subsequent distributors” will not be required to have test summaries on hand and will be afforded a reasonable amount of time to obtain one from the manufacturer. Amazon further suggested that PHMSA should clarify that it is the responsibility of the manufacturer to respond in a timely manner. PRBA and the Chamber suggested that PHMSA's final rule and guidance document should be consistent with the IATA's lithium battery guidance ^[11] and industry test summary Q&A ^[12] that states: “Due to the large volume of lithium batteries and lithium battery powered products that are shipped daily, manufacturers and distributors should not be expected to immediately provide a test summary for every product they ship. Manufacturers and distributors should be provided a reasonable amount of time to provide the required test summary.” MDBTC recommended that PHMSA revise the text in paragraph § 173.185(a)(3) from, “must make available upon request at reasonable times and locations,” to mirror the language in the UN Model Regulations, which reads “shall make available.” PHMSA agrees with the commenters that the test summary does not need to be made available immediately upon request, as that was not the intent of this requirement in the UN Model Regulations. As a result, PHMSA is amending the guidance document to clarify that manufacturers and distributors should make available the test summary in a reasonable amount of time but should not be expected to immediately provide a test summary for every product they ship. In addition, in this final rule, PHMSA is revising paragraph (a)(3) consistent with text in the international standards (a)(3) with the phrase “must make available” instead of “must make available upon request at reasonable times and locations.” The language proposed in the NPRM was an attempt to add clarity to the UN text by using similar language found in other sections of the HMR. Based on the comments received and upon further consideration, PHMSA believes aligning with the UN text will better reflect the intent of the regulation and avoid the possibility of imposing an undue burden.

Section 173.185(b) requires lithium cells and batteries to be packed in inner packagings in such a manner as to prevent short circuits, including movement that could lead to short circuits. These inner packagings must be placed in an outer package that conforms to the requirements of part 178, subparts L and M, at the Packing Group II performance level. PHMSA is making several amendments to § 173.185(b) to update and clarify various provisions. PHMSA is amending § 173.185(b)(2)(ii) to specify that lithium cells and batteries including lithium cells or batteries packed with, or contained in, equipment, must be packaged in a manner that prevents damage caused by movement or placement within the package. The current text requires lithium batteries to be packaged in a manner to prevent movement. This could be interpreted as to require no movement within the package. This amendment minimizes the ambiguity in the current requirements and only prohibits movement that leads to damage within the package. PHMSA received a comment from MBDTC in support of this amendment.

Further, PHMSA is amending § 173.185(b)(3)(i) to specify that inner packagings must be separated from electrically conductive materials. This change is based on revisions to the UN Model Regulations that revised the existing requirement that inner packagings separate lithium cells and batteries from “conductive materials” to require separation from “electrically conductive” materials. In the NPRM, PHMSA had proposed adding “except for transportation by passenger-carrying aircraft,” to the beginning of § 173.185(b)(5). This paragraph provides an exception from specification packaging for lithium batteries that weigh 12 kg (26.5 pounds) or more and have a strong, impact-resistant outer casing. This proposed addition is not being adopted, as the last sentence of this paragraph indicates that shipments in accordance with this paragraph are not permitted for transportation by passenger-carrying aircraft, and may be transported by cargo aircraft only if approved by the Associate Administrator.

PHMSA is amending § 173.185(b)(6) to clarify the provisions for the use of large packagings. Currently, large packagings are authorized for the transport of a single battery, including a battery contained in equipment. This amendment clarifies that large packagings are limited to a single battery or to a single item of equipment. This acknowledges that a single item of equipment may contain one or more cells or batteries. Additionally, consistent with revisions to the ICAO Technical Instructions, PHMSA is adding a new paragraph (b)(7) to prohibit the placement of lithium batteries in the same outer packaging as substances and articles of the following classes and divisions: Class 1 (explosives) other than Division 1.4S; Division 2.1 (flammable gases); Class 3 (flammable liquids); Division 4.1 (flammable solids); or Division 5.1 (oxidizers) when offered for transport or transported by aircraft. This action promotes consistency with the ICAO Technical Instructions and responds to a recommendation (A-16-001) from the NTSB stemming from the investigation of the July 28, 2011 in-flight fire and crash of Asiana Airlines Flight 991 that resulted in the loss of the aircraft and crew. The investigation report cited as a contributing factor the flammable materials and lithium ion batteries that were loaded together either in the same or adjacent pallets. Logically, if the materials are not allowed to be stowed in the same or adjacent pallets, segregation within the same package also would result in decreased risk in the event of a fire.

Section 173.185(c) of the HMR describes provisions for the carriage of up to eight small lithium cells or two small lithium batteries per package with alternative hazard communication that replaces the Class 9 label with a lithium battery mark. Additional conditions for the transport of small lithium cells and batteries by air are contained in § 173.185(c)(4). In this final rule, PHMSA is making several amendments to § 173.185(c)(2), (c)(3), and (c)(4) to align the HMR with the UN Model Regulations and the ICAO Technical Instructions, address the hazards associated with placing lithium batteries next to other hazardous materials, and clarify specific provisions. PHMSA is amending § 173.185(c)(2) to except equipment that is robust enough to protect lithium batteries from damage or short circuits from the requirement to be packaged. The current regulations provide an exception from the requirement for the package to be rigid, but otherwise require the equipment to be placed into a package. This amendment removes an unnecessary requirement to package otherwise robust equipment that protects lithium batteries from damage or short circuits. This amendment further aligns the HMR with the UN Model Regulations provisions found in special provision 188 for packaging of lithium cells, batteries, and equipment. PHMSA is removing the expired transitional provision in paragraph § 173.185(c)(3)(ii), applicable to marking requirements. PHMSA is adding a new § 173.185(c)(3)(iii) to require that when packages of lithium cells or batteries required to bear the lithium battery mark are placed in an overpack, the lithium battery mark must either: (1) Be clearly visible through the overpack; or (2) the lithium battery mark must also be affixed on the outside of the overpack, and the overpack must be marked with the word “OVERPACK” in lettering at least 12 mm (0.47 inches) high. PHMSA is amending § 173.185(c)(4)(ii) to adopt an “OVERPACK” marking minimum size requirement consistent with the proposed requirement for surface transport in § 173.185(c)(3)(iii). PHMSA received a comment from MBDTC in support of the amendments that align the “OVERPACK” marking requirements. PHMSA is clarifying the limits for spare batteries in § 173.185(c)(4)(vi) to state that up to “two spare sets” of cells or batteries can be placed in a package with equipment. For the purposes of this paragraph, a spare set is equal to the number of individual spare cells or batteries required to power each piece of equipment. For example, if a single item of equipment requires two lithium batteries to operate, a maximum of four additional batteries (two spare sets) may be placed in the package, provided the package continues to meet the other conditions of § 173.185(c). PHMSA received a comment from MBDTC in support of this amendment. PHMSA is adding a new § 173.185(c)(4)(viii) to specify that for air transport, lithium cells and batteries may not be placed in the same package as other hazardous materials. Further, packages containing small lithium cells and batteries must not be placed into an overpack with packages containing Class 1 (explosives) other than Division 1.4S, Division 2.1 (flammable gases), Class 3 (flammable liquids), Division 4.1 (flammable solids) or Division 5.1 (oxidizers).

Section 173.185(d) of the HMR describes provisions for the transport of lithium cells and batteries for disposal or recycling. In the NPRM, PHMSA proposed to authorize the use of certain rigid large packagings to transport a single large battery or a single large item of equipment when transported for disposal or recycling. PRBA noted that the existing regulations for disposal or recycling of lithium batteries authorize strong outer packaging conforming to the requirements of §§ 173.24 and 173.24a for batteries and equipment of all sizes and do not require the use of UN packaging. PHMSA agrees with the commenter. Lithium batteries and equipment transported for disposal or recycling are not required to be placed in UN packagings. PHMSA did not intend to implement more burdensome packaging requirements for large lithium batteries transported for disposal or recycling where packages prepared in accordance with the current requirements have a demonstrated record of safe transport. Accordingly, PHMSA is not adopting this proposal and amends § 173.185(d) to clarify this point. The use of UN specification packagings, including large packagings, will remain an option.

Section 173.185(e) of the HMR sets forth provisions for the transport of low production and prototype lithium cells and batteries, including equipment. In this final rule, PHMSA is making an editorial amendment to the § 173.185(e) introductory paragraph to clarify that the “transported for purposes of testing” condition applies to prototype cells and batteries and that both low production and prototype lithium cells and batteries may be contained in equipment. PHMSA received a comment from MBDTC in support of this amendment. PHMSA is also making an editorial amendment to paragraphs (e)(1) and (2) to specify that cushioning material must be electrically non-conductive instead of the existing “non-conductive” requirement. In addition, PHMSA is adding a new paragraph (e)(4) to authorize the use of certain rigid large packagings to transport a single large battery or a single large item of equipment. This provides additional packaging options to transport large batteries and equipment that, by nature of their size or shape, cannot fit into a non-bulk package. Each of the remaining sub-paragraphs in § 173.185(e) is renumbered and remain unchanged.

Section 173.185(f) of the HMR describes the provisions for the transport of lithium batteries that have been damaged or identified by the manufacturer as being defective for safety reasons, and that have the potential of producing a dangerous evolution of heat, fire, or short circuit (e.g., those being returned to the manufacturer for safety reasons). PHMSA is making an editorial amendment to § 173.185(f)(2) to specify that cushioning material must be electrically non-conductive, which harmonizes the HMR with the international standards. PHMSA is also amending § 173.185(f)(3) to clarify the provisions for the use of large packagings. Currently, large packagings are authorized for the transport of a single battery including a battery contained in equipment. This amendment clarifies that large packagings are limited to a single battery or to a single item of equipment. This acknowledges that a single item of equipment may contain one or more batteries.

ALPA commented that they did not see any proposed amendments for harmonization with three emergency amendments to the 2015-2016 ICAO Technical Instructions concerning the transport of lithium batteries by air. PHMSA published an interim final rule entitled “Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft” on March 6, 2019 [(HM-224I); 84 FR 8006], that amended and added multiple paragraphs in § 173.185 incorporating these ICAO Technical Instructions amendments. The NPRM did not account for these amendments and additions. Therefore, in this final rule, we are revising this section consistent with the March 6, 2019 interim final rule. Specifically, we are including text added or revised in the March 6, 2019 interim final rule in the following paragraphs: § 173.185(c)(1)(iii); (c)(4)(ii) through (vii); (c)(5); redesignated paragraph (g) as paragraph (h); and a new paragraph (g).

Section 173.218 Fish Meal or Fish Scrap

Section 173.218 contains packaging requirements for shipments of stabilized fish meal and fish scrap. Stabilization of fish meal and fish scrap by applying antioxidants is required in order to offer the material under a Class 9 stabilized proper shipping name. Historically, the IMDG Code and the HMR only reference one antioxidant, ethoxyquin, by name, although other antioxidants exist. In response to testing performed by the International Fishmeal and Fish Oil Organization ^[13] that indicated that concentrations of 50 ppm (mg/kg) of ethoxyquin, 100 ppm (mg/kg) of butylated hydroxytoluene (BHT), and 250 ppm (mg/kg) of tocopherol-based antioxidant are effective in stabilizing fish meal, the UN and the IMO adopted allowances for the use of two additional antioxidants (butylated hydroxytoluene and tocopherols) and a reduction in the required ethoxyquin concentration at time of shipment from 100 ppm to 50 ppm.

In this final rule, PHMSA is amending paragraph (c) of this section to lower the required ethoxyquin level at the time of shipment in bulk in freight containers for transportation by vessel from 100 ppm to 50 ppm and to specify acceptable levels of for butylated hydroxytoluene (100 ppm) and for tocopherols (250 ppm) in shipments of fish meal or fish scrap transported by vessel in bulk in freight containers. Reducing the required minimum concentration of ethoxyquin and permitting the use of additional antioxidants will reduce cost and add flexibility while maintaining an equivalent level of safety.

Section 173.220 Internal Combustion Engines, Vehicles, Machinery Containing Internal Combustion Engines, Battery-Powered Equipment or Machinery, Fuel Cell-Powered Equipment or Machinery

Section 173.220 prescribes transportation requirements and exceptions for internal combustion engines, vehicles, machinery containing internal combustion engines, battery-powered equipment or machinery, and fuel cell-powered equipment or machinery.

Special provision 135 is assigned to the HMT entries for certain vehicles. It specifies that if a vehicle is powered by both a flammable liquid and a flammable gas internal combustion engine, it must be consigned under the entry “Vehicle, flammable gas powered.” Special provision 135 does not, however, clearly indicate that a flammable gas-powered vehicle must also comply with the requirements applicable to the quantity of flammable liquid in the fuel tank in addition to all of the applicable provisions for a flammable gas-powered vehicle. Consistent with the ICAO Technical Instructions, PHMSA is clarifying in a new paragraph (b)(2)(ii)(C) that if a vehicle is powered by a flammable liquid and a flammable gas internal combustion engine, the flammable liquid fuel tank requirements of paragraphs (b)(1) of this section must also be met.

In this final rule, PHMSA is making an editorial amendment to the requirements for vehicles powered by lithium batteries in paragraph (d). Specifically, we are clarifying that when a lithium battery is removed from the vehicle and is packed separately from the vehicle in the same outer packaging, the package must be classified as “UN 3481, Lithium ion batteries packed with equipment” or “UN 3091, Lithium metal batteries packed with equipment,” and is not eligible for classification as “UN3171, Battery-powered vehicle or Battery-powered equipment.” This clarification is a result of a working paper submitted at the 26th Meeting of the ICAO Dangerous Goods Panel (ICAO DGP/26) concerning the carriage of battery powered vehicles such as “e-bikes” and it addresses instances where a shipper removes the lithium battery from the battery powered vehicle and subsequently packs the battery in a separate packaging, which is then placed with the vehicle in the same outer packaging. Although this was the result of an amendment to the ICAO Technical Instructions, we believe that it provides clarification of a preexisting requirement for all modes of transport.

Section 173.222 Dangerous Goods in Equipment, Machinery or Apparatus

Section 173.222 specifies the requirements for dangerous goods in machinery or apparatus. During the course of reviewing provisions associated with the new HMT entries for “Articles containing hazardous materials, n.o.s.,” PHMSA found that the quantity limits prescribed in § 173.222 are inconsistent with certain international standards. The current authorized quantity of hazardous materials in one item of machinery or apparatus are as follows: 1 kg for solids; 0.5 L for liquids, and 0.5 kg for Division 2.2 gases. These quantity limits are consistent with the ICAO Technical Instructions; however, they are not aligned with the UN Model Regulations or the IMDG Code. Special provision 301 of the UN Model Regulations and the IMDG Code authorize up to the limited quantity amount for each item of dangerous goods contained in the machinery or apparatus. An example of the current authorizations is for an article containing “Heptanes UN 1206, Class 3” the HMR and ICAO Techinical Instructions authorize the use of UN 3363 for machinery or apparatus up to a total net quantity of .5 L. For the same material the UN Model Regulations and the IMDG Code authorize 1 L total net quantity of heptanes. The authorized limited quantity amounts in the IMDG Code and the UN Model Regulations generally align the “methodology for determining limited quantities” indicated in the Guiding Principles for the Development of the UN Model Regulations.^[14]

In a previous final rule published on March 5, 1999 [Docket No. RSPA-98-4185 (HM-215C); 64 FR 10742], PHMSA's predecessor agency, the Research and Special Projects Administration (RSPA), aligned the HMR with the ICAO Technical Instructions by adding “Dangerous goods in machinery or Dangerous goods in apparatus” to the HMT. The proper shipping name was assigned identification number “NA8001,” special provision 136 was added for directions on class assignment, and § 173.222 was added containing requirements applicable to the new entry. In the HM-215C rulemaking, RSPA stated that upon the assignment of a UN identification number, it would revise the entry accordingly [81 FR 53935]. This was accomplished in the 11th revised edition of the UN Model Regulations, in which identification number UN3363 and Class 9 were assigned to this entry. The ICAO Technical Instructions were amended to be consistent with the UN Model Regulations. Subsequently, the HMR were updated accordingly in a final rule published on June 21, 2001 [Docket No. RSPA-2000-7702 (HM-215D); 66 FR 33315]. While the HMR were amended to incorporate the identification number and Class 9 designation, the quantity limit was not amended to allow up to the limited quantity amount authorized by the UN Model Regulations. Therefore, the ICAO quantity limits were retained for all modes of transport.

In the 20th Revised Edition of UN Model Regulations and Amendment 39-18 of the IMDG Code, the new “Articles containing hazardous materials, n.o.s.” entries apply to articles that contain only hazardous materials that exceed the permitted limited quantity amount for UN3363. The ICAO addressed the difference between the quantity authorized in the Technical Instructions and both the UN Model Regulations and the IMDG Code by amending ICAO special provision A107. The revised special provision A107 indicates that where the quantity of dangerous goods contained in machinery or apparatus exceeds the limits permitted by ICAO Technical Instructions Packing Instruction 962 (same as the existing HMR authorization), and the dangerous goods meet the provisions of Special Provision 301 of the UN Model Regulations, the machinery or apparatus may be transported as UN3363 only with the prior approval of the appropriate authority of the State of Origin and the State of the Operator under the written conditions established by those authorities. The use of the new “Articles containing hazardous materials, n.o.s.” requires in all cases require competent authority approval prior to being offered for transport in accordance with the ICAO Technical Instructions.

To more closely align with the UN Model Regulations and IMDG Code, for other than air transportation, PHMSA is increasing the quantity limits for liquids and solids in paragraph (c) up to the limited quantity amount prescribed in the corresponding section of Part 173 referenced in Column (8A) of the § 172.101 Table. Without this amendment, the HMR would differ from the UN Model Regulations and IMDG Code for application of the new “Articles, n.o.s.” entries, and an approach used by the ICAO Technical Instructions would be necessary for all modes. The authorized quantity for gases remains unchanged for all modes of transport.

Section 173.224 Packaging and Control and Emergency Temperatures for Self-Reactive Materials

Section 173.224 establishes packaging and control and emergency temperatures for self-reactive materials. The Self-Reactive Materials Table in paragraph (b)(7) of this section specifies self-reactive materials authorized for transportation without first being approved for transportation by the Associate Administrator for Hazardous Materials Safety, as well as requirements for transporting these materials. Consistent with the UN Model Regulations, in paragraph (b)(7), PHMSA is adding a new entry “Phosphorothioic acid, O-[(cyanophenyl methylene) azanyl] O,O-diethyl ester” to the Self-Reactive Materials Table. In addition, consistent with the UN Model Regulations, a new “Note 5” assigned to this entry is added to the list following the table stating that this entry applies to the technical mixture in n-butanol within the specified concentration limits of the (Z) isomer.

Paragraph (c) of this section prescribes requirements for new self-reactive materials, formulations, and samples. In paragraph (c)(4), PHMSA is authorizing small samples of certain potentially explosive or self-reactive substances when transported for testing purposes. These substances usually consist of organic molecules which are active ingredients, building blocks, or intermediates for pharmaceutical or agricultural chemicals. The molecules of the substances often carry functional groups listed in tables A6.1 and/or A6.2 in Annex 6 (Screening Procedures) of the UN Manual of Tests and Criteria, that would indicate explosive or self-reactive properties; however, these substances are not designed to be explosives of Class 1. This amendment is necessary because during the early development phase of a new product, complete test data is often unavailable but the substances must be transported for further testing. The provisions adopted in paragraph (c)(4) prescribe applicability criteria and packaging conditions for these substances to be transported as samples for the purpose of testing. These criteria and packaging conditions are based on submissions to the United Nations SCOE on the Transport of Dangerous Goods showing the effectiveness of the packaging methods.

Consistent with the UN Model Regulations, PHMSA is revising paragraph (b)(4) to authorize the transportation of self-reactive substances packed in accordance with packing method OP8 (non-bulk packaging authorization) where transport in IBCs or portable tanks is permitted in accordance with § 173.225, provided that the control and emergency temperatures specified in the instructions are complied with. This change allows materials that are authorized in bulk packagings to also be transported in appropriate non-bulk packagings.

Section 173.225 Packaging Requirements and Other Provisions for Organic Peroxides

Section 173.225 prescribes packaging requirements and other provisions for organic peroxides. The Organic Peroxide Table in the UN Model Regulations is continually updated based on data submitted by governments and industry groups to account for new peroxides and formulations that have become commercially available. Consistent with revisions to the UN Model Regulations, PHMSA is revising the Organic Peroxide Table in paragraph (c) by adding the entries: “Di-(4-tert-butylcyclohexyl) peroxydicarbonate [as a paste],” “Diisobutyryl peroxide [as a stable dispersion in water],” and “1-Phenylethyl hydroperoxide.” The table in paragraph (d)(4) currently titled “Maximum Quantity per Packaging/Package” is amended to read “Table to paragraph (d): Maximum Quantity per Packaging/Package.” This change is being made in response to a request made during the publishing of the NPRM by the Federal Register to align with their requirements for table headings in regulations. The Organic Peroxide IBC Table in paragraph (e) is revised to maintain alignment with the UN Model Regulations by adding new entries for “Cumyl peroxyneodecanoate, not more than 52%, stable dispersion, in water,” “2,5-Dimethyl-2,5-di(tert-butylperoxy)hexane, not more than 52% in diluent type A,” “3,6,9-Triethyl-3,6,9-trimethyl-1,4,7-triperoxonane not more than 27% diluent type A,” and “tert-Amyl peroxy-2-ethylhexanoate, not more than 62% in a diluent type A” and by adding a type 31HA1 IBC authorization to the existing entry for “tert-Butyl hydroperoxide, not more than 72% with water.”

In addition, consistent with the UN Model Regulations, PHMSA is amending paragraphs (e) and (g) to authorize organic peroxides to be transported packed in accordance with packing method OP8, where transport in IBCs or portable tanks is permitted, provided that the control and emergency temperatures specified in the instructions are complied with.

Section 173.232 Articles Containing Hazardous Materials, n.o.s.

New section 173.232 prescribes requirements for articles not otherwise specified by name in the HMR that contain hazardous materials of various hazard classes and divisions. This addresses situations in which hazardous materials or hazardous materials residues are present in articles in quantities greater than the amounts authorized for dangerous goods in machinery or apparatus. This new section authorizes a safe method to transport articles that may be too large to fit into typical packages. The packaging section 173.232 added in this final rule for the new proper shipping names for articles requires packaging at the Packing Group II performance level. Non-specification packaging, and transportation in an unpackaged manner or on pallets when the hazardous materials are afforded equivalent protection by the article in which they are contained, are also authorized. Absent these provisions to package and transport these materials safely, these articles may be offered for transport under provisions that do not adequately account for the physical and chemical properties of the substances and may require the issuance of an approval by PHMSA's Associate Administrator for Hazardous Materials Safety.

Section 173.301b Additional General Requirements for Shipment of UN Pressure Receptacles

Section 173.301b describes additional requirements when shipping gases in UN pressure receptacles. In paragraph (c)(1), PHMSA is incorporating ISO 17871:2015 containing specification and type testing requirements for quick release cylinder valves. In paragraph (d)(1), PHMSA is phasing out ISO 13340:2001, Transportable gas cylinders—Cylinder valves for non-refillables cylinders—Specification and prototype testing, which can be utilized until December 31, 2020. ISO 13340:2001 is being phased out because the applicable valve standard in ISO 13340:2001 has been incorporated into ISO 11118:2015.

Section 173.304b Additional Requirements for Shipment of Liquefied Compressed Gases in UN Pressure Receptacles

Section 173.304b contains additional requirements for the shipment of liquefied compressed gases in UN pressure receptacles. In this final rule, consistent with a change made in the 20th Revised Edition of the UN Model Regulations, PHMSA is amending paragraph (b)(5) by replacing “liquid phase” with “liquefied gas” and “compressed” with “compressed gas” to better describe the phases of the material being stored and to align with the UN language.

Section 173.422 Additional Requirements for Excepted Packages Containing Class 7 (Radioactive) Materials

Section 173.422 contains additional requirements for excepted packages containing Class 7 (radioactive) materials. Shipments of excepted packages containing Class 7 materials are not required to meet the general shipping paper requirements found in the HMR. Amendment 39-18 of the IMDG Code adopted a requirement that vessels carrying these excepted packages include information concerning these packages (e.g., UN ID Number and location on board the vessel) on the Dangerous Cargo Manifest (DCM). Historically, the HMR has not required any documentation to accompany shipments of excepted packages containing radioactive material when offered for transportation by vessel. In this final rule, PHMSA is amending the DCM requirements in § 176.30 to require information about these shipments to be included in the DCM carried aboard the vessel. Without a corresponding amendment to § 173.422 to require the information to be provided to the vessel operator, the vessel operator would not have the information available that would be required to be included on the DCM.

In this final rule, PHMSA proposes to add a new paragraph (f) that would require excepted packages of radioactive materials offered for transportation by vessel to have a special transport document such as an ocean bill of lading or other similar document that includes the UN identification number for the material being offered, the name and address of the consignor and consignee, and a container packing certificate, in accordance with the requirements in § 176.27. This amendment provides for the conveyance of necessary information to the vessel operator for creation of the DCM.

Appendix I to Part 173

PHMSA is also adding a new Appendix I to part 173, containing a flow chart for use with the calculation method for corrosive classification. Please see the section-by-section discussion for § 173.137 for further information on Appendix I to Part 173.

Part 174—Carriage by Rail

Section 174.50 Nonconforming or Leaking Packages

Section 174.50 prescribes regulations for the movement of nonconforming or leaking packages by rail. Under the HMR, no person may offer for transportation or transport a bulk hazmat packaging (typically a tank car) by rail unless that packaging is marked, represented, maintained, reconditioned, repaired, and retested in accordance with the HMR (§ 171.2(g)). However, § 174.50 authorizes the movement of a non-conforming bulk hazmat package moved by rail when: (1) The movement is necessary to reduce or eliminate an immediate threat or harm to human health or the environment; or (2) the movement is approved by the Federal Railroad Administration's (FRA) Associate Administrator for Railroad Safety.

Approvals issued by FRA's Associate Administrator for Railroad Safety are commonly referred to as One-Time Movement Approvals (OTMA).^[15] Transport Canada issues similar approvals for the movement of non-conforming bulk hazmat packages and tank cars, which are referred to as Temporary Certificates. Historically, for movements of non-conforming tank cars from Canada to or through the United States, the offeror would have to obtain both an OTMA from FRA and a Temporary Certificate from Transport Canada. These applications initiate administrative processes and safety reviews by both governments that nearly always result in the same conclusion. Since the safety analysis used to evaluate Temporary Certificates in Canada is similar to the safety analysis used to evaluate OTMAs by FRA, the requirement to obtain two government approvals for a cross border movement provides no additional safety benefit and is redundant and burdensome. Thus, to facilitate cross border trade, for movements to or through the United States from Canada, PHMSA is amending the regulation to recognize Temporary Certificates issued by Transport Canada. This amendment would reduce the duplicative requirement to apply for both an OTMA from the United States and a Temporary Certificate from Canada, should the non-conforming package need to be transported over the U.S.-Canadian border.

On July 12, 2007, Transport Canada published, “Regulations Amending the Transportation of Dangerous Goods Regulations (International Harmonization Update, 2016).” In this publication, Transport Canada indicated that recognition of OTMA may be included in a future amendment. This amendment aims to facilitate international transportation and at the same time ensures the safety of people, property, and the environment. Finally, for low-risk movements of non-conforming tank cars, Transport Canada authorizes the one-time movement without the need to obtain a temporary certificate (see TP-14877). For clarification, such movements under the TDG Regulations are already authorized by § 171.12, provided the movements are compliant with all applicable requirements in the TDG Regulations and § 171.12. PHMSA received comments from DGAC and Dow in support of the changes to § 174.50 noting these amendments work to facilitate cross border trade.

Part 175—Carriage by Aircraft

Section 175.10 Exceptions for Passengers, Crewmembers, and Air Operators

Section 175.10 specifies the conditions under which passengers, crew members, or an operator may carry hazardous materials aboard an aircraft. Consistent with revisions to the ICAO Technical Instructions, in this final rule, PHMSA is making several revisions to this section.

PHMSA is revising paragraph (a)(2) to account for lighters powered by lithium batteries (e.g., laser plasma lighters, tesla coil lighters, flux lighters, arc lighters, and double arc lighters). The assigned provisions would be consistent with a combination of the existing requirements applicable to portable electronic devices powered by lithium batteries and battery powered portable electronic smoking devices. Specifically, each lithium battery must be of a type which meets the requirements of each test in the UN Manual of Tests and Criteria, Part III, Subsection 38.3 and must not exceed the size limits authorized for portable electronic devices. Recharging of the devices and/or the batteries on board the aircraft is not permitted consistent with the requirements for portable electronic smoking devices. In addition, lithium battery powered lighters without a safety cap or means of protection against unintentional activation are prohibited in carry-on baggage, checked baggage, and when carried on one's person.

PHMSA is revising paragraph (a)(3), to authorize medical devices containing radioactive material fitted externally as the result of medical treatment, consistent with the ICAO Technical Instructions. In addition, the reference to implanted medical devices containing lithium batteries is removed. For medical devices containing lithium batteries (including those implanted, externally fitted, or carried by passengers or crew members) the quantity limits provided in (a)(18)(i) or (ii) apply, as applicable.

PHMSA is revising paragraph (a)(14) for consistency with the ICAO Technical Instructions and other paragraphs in this section. The first sentence is revised to clarify that the paragraph is applicable to battery powered heat-producing devices rather than “electrically powered” articles. For lithium battery powered devices, quantity limits are added in new paragraphs (i) and (ii) consistent with the existing requirements applicable to portable electronic devices powered by lithium batteries and battery powered portable electronic smoking devices. The requirements for spare batteries are revised to reference the provisions for spare batteries in paragraph (a)(18).

PHMSA is revising paragraph (a)(15) by adding a new paragraph (vi) to separate and clarify the handling requirements applicable to each “non-spillable” and “dry sealed” battery presently prescribed in paragraph (v). PHMSA is also adding a new paragraph (vii) to authorize passengers with restricted mobility to carry a spare non-spillable or dry sealed battery for their mobility aid. Prior to this rulemaking, spare lithium batteries were permitted for passengers with lithium battery-powered mobility aids; this was deemed acceptable for mobility aids equipped with non-spillable or dry sealed batteries. This action is consistent with the ICAO Technical Instructions.

PHMSA is amending provisions for carriage of wheelchairs or other mobility aids equipped with a lithium ion battery by removing the requirement that “collapsible” mobility aids necessitate removal of the battery. The intent of the existing requirement was to allow the removal of the batteries from lightweight collapsible mobility aids when these do not afford any protection to the batteries. However, the existing text in both the HMR and ICAO Technical Instructions can be construed to mean that if the battery was designed to be removable from the mobility aid, that it must be removed in all circumstances, even when adequate protection to the batteries is provided. In cases when the batteries are adequately protected, it is preferable that they remain installed in the mobility aid; however, there may be situations when that is not possible or safe to do, and in these cases the batteries must be removed. Therefore, in this final rule, PHMSA is amending (a)(17)(v) by removing the word “collapsible” and clarifying that when the wheelchair or mobility aid does not provide adequate protection to the battery, that the battery must be removed and handled in accordance with the existing conditions prescribed in (a)(17)(v)(A) through (E).

PHMSA is amending the provisions for carriage of portable electronic devices (PEDs) containing lithium batteries to address safety concerns requiring passengers to carry PEDs in checked baggage. Consistent with the ICAO Technical Instructions, § 175.10(a)(18) is revised to require that when PEDs powered by lithium batteries are in checked baggage, they must be completely powered off and protected to prevent unintentional activation or damage. PHMSA received a comment from Yvonne Keller noting that in an October 18, 2018, final rule [Docket No. PHMSA-2015-0100 (HM-259) [83 FR 52878], PHMSA amended paragraph (a)(18)(i) to authorize passengers and crewmembers to carry on board an aircraft lithium metal battery-powered portable medical electronic devices and two spare batteries for those devices exceeding 2 grams of lithium content per battery, but not exceeding 8 grams of lithium content per battery, with the approval of the operator. We agree that the NPRM did not account for this amendment. Therefore, in this final rule, we are revising this paragraph consistent with the earlier published final rule.

PHMSA is revising the carriage requirements for battery-powered portable electronic smoking devices in paragraph (a)(19). The 2015-2016 Edition of the ICAO Technical Instructions incorporated provisions prohibiting passengers and crew from carrying such devices in checked baggage or recharging them in the cabin, and requiring that any spare batteries be protected from short circuit. In a working paper (DGP/26-WP/42) submitted by the United States at the ICAO DGP/26 meeting, it was reported that even after the prohibition, 10 incidents involving these devices were documented between May 2015 and May 2017. As described in the working paper, seven of the incidents occurred inside a passenger aircraft and three occurred inside an airport. These incidents typically involved the electronic smoking device while it was being transported in carry-on baggage, with the suspected cause of the majority of these incidents being the accidental activation of the device.

In this final rule, PHMSA is aligning the HMR with the ICAO Technical Instructions by requiring passengers or crew to take effective measures for preventing accidental activation of the heating element of the device when transporting such devices in carry-on baggage on board passenger aircraft. Examples of effective measures include, but are not limited to: Removing the battery from the electronic smoking device; separating the battery from the heating coil; placing the electronic smoking device into a protective case; using a protective cover, safety latch, or locking device on the electronic smoking device's heating coil activation button; and electronics or technology in the device designed to prevent accidental activation, such as those requiring the electronic smoking device to be powered on before the heating coil button can be activated.

PHMSA is adding a new paragraph (a)(26) that amends the passenger provisions for carriage of baggage equipped with lithium batteries (e.g., smart baggage) intended to power features designed to make travel easier, such as location tracking, PED battery charging, short range wireless connections, digital weighing, or motors. To address concerns that passengers would check baggage containing lithium batteries (e.g., power banks) despite existing requirements that articles whose primary purpose is to provide power to another device be carried as spare batteries in the cabin as carry-on baggage, the ICAO Technical Instructions were amended to require that passengers remove lithium batteries from baggage they intend to check, in accordance with the provisions for spare batteries. Specifically, baggage equipped with a lithium battery or batteries is required to be carried as carry-on baggage, unless the battery or batteries are removed from the baggage. Once the battery or batteries are removed from baggage intended to be checked, the battery or batteries must be carried in the cabin in accordance with the provisions for spare batteries prescribed in paragraph (a)(18). This restriction in checked baggage does not apply to baggage containing lithium metal batteries with a lithium content not exceeding 0.3 grams, or lithium ion batteries with a Watt-hour rating not exceeding 2.7 Wh.

PHMSA received a comment from Alaska Airlines requesting that additional text be added to clarify that batteries must be removable without the use of any tool for baggage to be carried on, in the event the bag must subsequently be placed in the cargo compartment. However, in the NPRM, we proposed to align with the text of the ICAO Technical Instructions, which does not include this requirement. The requested language would, therefore, result in unalignment with the ICAO Technical Instructions and additional changes in existing practices in manufacturing and design of these types of bags.

Section 175.33 Shipping Paper and Information to the Pilot-in-Command

Section 175.33 establishes requirements for shipping papers and for the notification of the pilot-in-command when hazardous materials are transported by aircraft. Consistent with revisions to the ICAO Technical Instructions, in paragraph (a)(13)(i), PHMSA is including a requirement to indicate the airport at which the lithium batteries will be unloaded in the information to the pilot-in-command when a summary is used for lithium batteries. Including the airport at which the batteries will be unloaded is consistent with the existing authorization in paragraph (a)(12) to use a summary instead of the default information to the pilot in command for “UN 1845, Carbon dioxide, solid (dry ice).” Yevon Keller commented noting that the HM-215O NPRM did not take into account recent changes to this section made in an October 18, 2018, final rule [Docket No. PHMSA-2015-0100 (HM-259); 83 FR 52878]. The NPRM did not fully account for this amendment and, in this final rule, we are revising paragraphs (a)(12) and (13) to make them editorially consistent with the earlier published final rule.

Additionally, in a recent interim final rule (IFR) published March 6, 2019, [HM-224I; 84 FR 8006], PHMSA made revisions to some lithium battery requirements in the HMR.^[16] As part of the IFR, we made changes to § 173.185(c) including redesignating paragraph (c)(4)(vi) as paragraph (c)(5). However, in the HM-224I IFR, we did not make a conforming amendment to § 175.33, specifically § 175.33(a)(13)(iii), which continued to incorrectly reference § 173.185(c)(4)(vi). As such, the reference in § 175.33(a)(13)(iii) should be to § 173.185(c)(5), as this will correctly indicate that UN3480, UN3481, UN3090, and UN3091 materials prepared in accordance with § 173.185(c)(5) are still required to appear on the information to the pilot-in-command. This HM-215O final rule makes that necessary editorial correction.

Section 175.78 Stowage Compatibility of Cargo

Section 175.78 prescribes the stowage compatibility of hazardous materials offered for transportation by aircraft. Consistent with international standards, in a March 30, 2017, final rule [HM-215N; 82 FR 15796], PHMSA added new Class 3 HMT entry “UN 3528,” applicable to the fuel contained in engines and machinery powered by Class 3 flammable liquids. In accordance with the segregation requirements prescribed in this section, engines and machinery classified under the new UN 3528 entry in Class 3 are required to be segregated from dangerous goods with a primary or subsidiary hazard of Division 5.1. Prior to the addition of the UN 3528 HMT entry, such engines and machinery were classed in Class 9 and, therefore, not required to be segregated from Division 5.1 materials. The packing requirements by air for UN 3528 require engines to be drained and the tank caps fitted securely. These precautions ensure that there is only a negligible amount of residual fuel remaining. There is no indication that, as prepared for transport, UN 3528 poses any more hazard now that would require these items to be segregated than when these items were previously identified as a Class 9. Therefore, in this final rule, PHMSA is adding an exception to the segregation requirement by including a “Note 3” to the paragraph (b) Segregation Table and adding a new paragraph (c)(8) stating that materials consigned under UN 3528 need not be segregated from packages containing hazardous materials in Division 5.1.

Consistent with the ICAO Technical Instructions, PHMSA is requiring that packages and overpacks containing lithium cells and batteries that bear the Class 9 label must not be stowed on an aircraft next to, in contact with, or in a position that would allow interaction with, packages or overpacks containing other hazardous materials in Class 1 (other than Division 1.4S), Division 2.1, Class 3, Division 4.1 and Division 5.1. Specifically, the current paragraph (b) is reformatted into two paragraphs. A new paragraph (b)(2) is added to prescribe the segregation requirements applicable to lithium cells and batteries. The existing Segregation Table is revised by adding the necessary columns and rows representing hazard classes not presently in the Table. These changes to the Table indicate that hazardous materials in the classes described above must be segregated from packages and overpacks containing lithium cells or batteries prepared in accordance with § 173.185(b)(3) and (c)(4)(vi). PHMSA is taking this action to promote consistency with the ICAO Technical Instructions and in response to a NTSB recommendation (A-16-001). The recommendation stemmed from NTSB's investigation of the July 28, 2011, in-flight fire and crash of Asiana Airlines Flight 991, which resulted in the loss of the aircraft and crew. The investigation report cited as a contributing factor the flammable materials and lithium ion batteries that were loaded together either in the same or adjacent pallets.

PHMSA received two comments from COSTHA and Alaska Airlines in support of the segregation requirements. Alaska Airlines supports the changes to the segregation requirements and COSTHA supports the new Note 3 in § 175.78 exempting “UN3528” from Division 5.1 segregation requirements. Alaska Airlines asked if it was an oversight that PHMSA did not propose to amend § 175.310(c)(1)(ii) to include similar prohibitions on shipping lithium metal and lithium ion batteries with flammable liquids, which authorizes transportation of flammable liquid fuel by passenger and cargo aircraft when other means of transportation are impracticable. Shipments made in accordance with § 175.310 may vary from the packaging references and quantity limits listed in Columns 7, 8, and 9 of the HMT. PHMSA did not propose or intend to propose amendments to § 175.310 in the NPRM. As no amendments were proposed to this section or these provisions, we are not amending the requirements in this section in this final rule. The FAA and PHMSA have agreed to look at the issue further and any potential future rulemaking action would afford stakeholders the opportunity to review and provide comments.

Part 176—Carriage by Vessel

Section 176.30 Dangerous Cargo Manifest

Section 176.30 prescribes requirements for DCMs, lists, or stowage plans required to be carried aboard vessels transporting hazardous materials. For consistency with the IMDG Code in this final rule, PHMSA is adding a new paragraph (a)(9) to require that DCMs include information on shipments of excepted packages containing Class 7 materials. For shipments of excepted packages containing Class 7 material only the UN identification number, the name and address of the consignor and the consignee, and the stowage location of the hazardous material on board the vessel is required to be entered on the DCM, list, or stowage plan carried aboard the vessel.

Section 176.84 Other Requirements for Stowage, Cargo Handling, and Segregation for Cargo Vessels and Passenger Vessels

Section 176.84 prescribes the meanings and requirements for numbered or alphanumeric stowage provisions for vessel shipments listed in column (10B) of the § 172.101 HMT. The provisions in § 176.84 are separated into general stowage provisions, which are defined in the “table of provisions” in paragraph (b), and the stowage provisions applicable to vessel shipments of Class 1 explosives, which are defined in the table in paragraph (c)(2). In a previous final rule [Docket No. PHMSA-2015-0273 (HM-215N); 82 FR 15796], a subsidiary hazard of 6.1 was added to the UN 2977 and UN 2978 uranium hexafluoride entries, and the primary hazard for UN 3507, Uranium hexafluoride, radioactive material, excepted package was changed from 8 to 6.1. Consequential amendments to the stowage and segregation requirements codes for these materials were not addressed at the time of these changes in the IMDG Code or the HMR. In this final rule, we are adding new stowage provisions that clarify what segregation requirements apply to shipments of uranium hexafluoride.

PHMSA is adding a new stowage provision 151 and assigning it to the UN 2977 and UN 2978 uranium hexafluoride entries. This new stowage provision requires segregation for Class 7 materials to apply to uranium hexafluoride shipped under these two UN numbers.

Additionally, consistent with Amendment 39-18 of the IMDG Code, PHMSA is adding a new stowage provision 152 and assigning it to UN 3507, Uranium hexafluoride, radioactive material, excepted package. This new stowage provision requires segregation for Class 8, but excepts segregation in relation to Class 7 materials. This exception to the general segregation requirements between Class 8 and Class 7 materials allows shipments of excepted packages of uranium hexafluoride to be stowed in close proximity to shipments of fully regulated uranium hexafluoride.

Based on changes to the IMDG Code to address the appropriate segregation requirements for shipments of uranium hexafluoride, PHMSA is adding a new stowage provision 153 and assigning it to the UN 2977 and UN 2978 uranium hexafluoride HMT entries. This new stowage provision requires these materials to be stowed “separated longitudinally by an intervening complete compartment or hold from” Divisions 1.1, 1.2, and 1.5.

Based on changes to the IMDG Code to provide additional flexibility in the stowage requirements for jet perforating guns, PHMSA is adding a new stowage provision 154 and assigning it to the NA 0124, NA 0494, UN 0494, and UN 0124 jet perforating gun HMT entries. This new stowage provision indicates that, notwithstanding the stowage category assigned to the entries in the HMT, jet perforating guns may be stowed in accordance with the provisions of packing instruction US 1 in § 173.62. These jet perforating guns are currently assigned to stowage categories “02” and “04.” Both stowage categories require stowage in closed cargo transport units. The inclusion of new stowage provision 154 clarifies that regardless of the stowage category assigned, jet perforating guns offered in accordance with US 1 in § 173.62 are not required to be offered for transport or transported in closed cargo transport units.

Part 178—Specifications for Packagings

Section 178.71 Specifications for UN Pressure Receptacles

Section 178.71 prescribes specifications for UN pressure receptacles. Consistent with the UN Model Regulations, PHMSA is amending paragraphs (d)(2), (f), (i), (j), and (q)(12), to reflect the adoption of the latest ISO standards for the design, construction, and testing of gas cylinders and their associated service equipment. In paragraph (d)(2), PHMSA is adding a phase out date for ISO 13340:2001, which is authorized for valves manufactured until December 31, 2020, and incorporating by reference ISO 14246:2014 (E) “Gas cylinders—Cylinder valves—Manufacturing tests and examination,” which addresses initial inspection and testing requirements for valves. ISO 13340:2001 is being phased out because the applicable valve requirements have been incorporated into ISO 11118:2015. In paragraph (f), PHMSA is amending the title of the paragraph to include pressure drums and adding ISO 21172-1:2015(E), “Gas cylinders—Welded steel pressure drums up to 3 000 litres capacity for the transport of gases—Design and construction—Part 1: Capacities up to 1 000 litres” in new paragraph (f)(4). A note was added to the UN Model Regulations that authorizes welded steel gas pressure drums with dished ends convex to pressure to be used for the transport of corrosive substances provided all applicable additional requirements are met, irrespective of section 6.3.3.4 of this standard which prohibits such use.^[17] Therefore, PHMSA is authorizing the same deviation from the ISO standard in paragraph (f).

In addition, in paragraph (i), PHMSA is adding a phase out date for ISO 11118:1999 “Gas Cylinders for Non-refillable Metallic Gas Cylinders,” which is authorized until December 31, 2020, and replacing it with the new standard, ISO 11118:2015. In paragraph (j), PHMSA is adding a phase out date for ISO 111120:1999, “Gas Cylinders for Refillable Seamless Steel Tubes,” which is authorized until December 31, 2022, and replacing it with ISO 111120:2015. In paragraph (q)(12), PHMSA is incorporating ISO/TR 11364, “Gas cylinders—Compilation of national and international valve stem/gas cylinder neck threads and their identification and marking system” to specify a harmonized identification code and marking system for both cylinders and valves.

Section 178.75

Section 178.75 prescribes specifications for multi-element gas containers (MEGCs). In paragraph (d)(3)(v), PHMSA is adding a phase out date for ISO 11120:1999, which is authorized for construction and testing of receptacles of MEGCs until December 31, 2022, and authorizing the new, updated standard ISO 11120:2015. Changes to the new edition of this standard include the addition of an annex outlining typical chemistry groupings for seamless steel tubes, the addition of nickel chromium molybdenum steel, the modification of ultrasonic examination provisions, and revisions to the provisions for the design of tubes for embrittling gases.

Section 178.601 General Requirements

Section 178.601 prescribes the general requirements for test procedures for non-bulk packagings and packages. A test report must be prepared and made available to a user of a packaging or a DOT representative upon request. In this final rule, PHMSA is requiring in paragraph (l)(2)(viii) that the test report for plastic packagings that are subject to the hydraulic pressure test include the temperature of the water used for the test. Tests with different water temperatures applied to one design type can produce different test results (pass or fail). This action is consistent with amendments to the UN Model Regulations. PHMSA received a comment from RIPA supporting the requirement.

Section 178.801 General Requirements

Section 178.801 prescribes the general requirements for test procedures of an IBC containing a hazardous material. A test report for an IBC must be prepared and made available to a user of a packaging or a DOT representative upon request. In this final rule, PHMSA is requiring in paragraph (l)(2)(viii) that the test report for rigid plastics and composite IBCs that are subject to the hydraulic pressure test must include the temperature of the water used for the test. Tests with different water temperatures applied to one design type can produce different test results (pass or fail). The inclusion of the temperature of the water used for the test will allow for tests that more accurately simulate the original design type testing when such additional testing is performed. PHMSA received a comment from RIPA supporting the requirement.

Section 178.810 Drop Test

Section 178.810 prescribes the requirements for an IBC drop test. In the NPRM, we proposed to amend paragraph (c)(1), to clarify that the same IBC or a different IBC of the same design type may be utilized for the required drop tests. PHMSA received a comment from Frits Wybenga noting that IBCs exceeding 450 L (0.45 cubic meters) capacity only require one drop test and that our proposed language could confuse users. PHMSA agrees and has determined that (c)(2), addressing IBC design types with a capacity of 0.45 cubic meters or less is the most appropriate paragraph for this provision. As such, we are amending paragraph (c)(2).

Part 180—Continuing Qualification and Maintenance of Packagings

Section 180.207 Requirements for Requalification of UN Pressure Receptacles

Section 180.207 prescribes requirements for requalification of UN pressure receptacles. In March 2017, PHMSA published a final rule under Docket HM-215N [82 FR 15796 (March 30, 2017)]. In this rule, PHMSA amended the HMR to expand recognition of cylinders and pressure receptacles, cargo tank repair facilities, and certificates of equivalency in accordance with the Transport Canada TDG Regulations. The goal of these amendments is to promote flexibility and permit the use of advanced technology for the requalification and use of pressure receptacles, to provide for a broader selection of authorized pressure receptacles, to reduce the need for special permits, and to facilitate cross-border transportation of these cylinders. Section § 171.12(a)(4) permits the transportation of a cylinder authorized by Transport Canada TDG Regulations to, from, or within the United States. In HM-215N, PHMSA amended (a)(4)(ii) to authorize the use of Canadian manufactured cylinders. Specifically, PHMSA authorized the transportation of CTC, CRC, BTC, and TC cylinders that have a corresponding DOT specification cylinder prescribed in the HMR. HM-215N did not remove or amend existing requirements for DOT specification cylinders; rather, PHMSA provided that a shipper may use either a DOT specification cylinder or a TC cylinder, as appropriate. In this final rule, PHMSA is clarifying the amendments in HM-215N and allowing for the requalification of “CAN” marked UN cylinders in the United States.

In the NPRM, PHMSA proposed that cylinders marked with the letters “CAN” for Canada as a country of manufacture or a country of approval may be requalified in the United States, provided the requirements in §§ 178.69, 178.70, and 178.71, as applicable, are met. PHMSA received a comment from Transport Canada stating that it disagrees that UN cylinders marked with the letters “CAN” must comply with the U.S. manufacturing and approval requirements in §§ 178.69, 178.70, and 178.71, as the cylinders are manufactured to comply with the TDG Regulations. Transport Canada recommended that consistent with the reciprocity provisions for TC cylinders added in the HM-215N final rule, UN cylinders marked with the letters “CAN” be requalified and marked by a facility registered by Transport Canada in accordance with the Transport Canada TDG Regulations. PHMSA agrees with the commenter that allowing this method of requalification is consistent with previous amendments concerning requalification of Canadian pressure vessels using TDG Regulations, promotes U.S. and Canadian regulatory reciprocity and facilitates international trade. In this final rule, PHMSA is revising paragraph (a)(2) per the recommendation from Transport Canada.

Consistent with changes to the UN Model Regulations, PHMSA is revising paragraph (d)(1) to incorporate ISO 16148:2016, which addresses the requalification of seamless steel cylinders and tubes. This addition allows the internal inspection and hydraulic pressure test for seamless steel ISO cylinders and tubes to be replaced by non-destructive testing methods identified in ISO 16148:2016. Non-destructive test methods in this ISO standard have been updated to provide a method for evaluating the significance of acoustic emission examination identifed emission sources. This standard specifies the ultrasonic examination method as a follow-up procedure to evaluate the significance of sources identified through acoustic emissions examinations. Additionally, in paragraph (d)(4), PHMSA is adding a phase out date for ISO 11623:2002, which is authorized for inspection and testing of composite UN cylinders until December 31, 2020, and authorizing the new standard, ISO 11623:2015. Finally, PHMSA is adding new paragraph (d)(6) to incorporate inspection and maintenance requirements for cylinder valves as found in ISO 22434:2006 “Transportable gas cylinders—Inspection and maintenance of cylinder valves.” Changes to the revised standard include: Up-to-date terminology, particularly for the various types of composite cylinders; up-to-date references to additional documents for steel and aluminum-alloy liner materials; and an update of some photographs to provide sharper examples of damage.

Section 180.217 Requalification Requirements for MEGCs

Section 180.217 contains requalification requirements for MEGCs. PHMSA received a comment from Transport Canada that the HM-215N final rule did not extend reciprocity to the requalification of MEGCs performed by facilities registered with Transport Canada. The commenter noted that having mutual recognition for cylinder requalification was one of the main goals of the U.S.-Canada Regulatory Cooperation Council. PHMSA agrees that the ability to requalify MEGC's is consistent with previous amendments concerning pressure vessels and promotes U.S. and Canadian regulatory reciprocity and facilitates international trade. In this final rule PHMSA is revising paragraph (a) by authorizing MEGCs to be requalified by a facility registered by Transport Canada in accordance with the Transport Canada TDG Regulations.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Final Rule

This final rule amends the HMR to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. This final rule is published under the statutory authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. Additionally, 49 U.S.C. 5120(b) authorizes the Secretary to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. The Secretary's authority is delegated to PHMSA at 49 CFR 1.97.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning and Review, 58 FR 51735 and, therefore, was not formally reviewed by the Office of Management and Budget. This final rule is not considered a significant rule under the Department of Transportation's Policies and Procedures for Rulemakings (DOT Order 2100.6; Dec. 20, 2018).

E.O. 12866 requires agencies to design regulations “in the most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” In this final rule, PHMSA accomplishes the directives of E.O. 12866 by harmonizing the HMR with widely used consensus international standards to address specific safety concerns, reduce regulatory burdens, and facilitate international trade. Such alignment promotes international trade through standardization, facilitates domestic transportation and reduces regulatory burden by using a single set of guiding principles worldwide.

Overall, the issues discussed in this final rule promote the continued safe transportation of hazardous materials while producing net cost savings. Cost savings are derived from generalized harmonization effects (such as avoided costs of compliance) and the specific provisions related to corrosivity classification that adds alternative packing group assignment methods to classify corrosive mixtures without conducting physical testing. Details on the estimated cost savings and benefits of this final rule can be found in the rule's Regulatory Impact Analysis (RIA), which is available in the public docket.

Based on the discussions of benefits and costs provided above, PHMSA estimates discounted net cost savings at a 3 percent discount rate of approximately $93,000-$2.2 million per year and at a 7 percent discount rate of approximately $55,000-$2.1 million per year. Please see the complete RIA for a more detailed analysis of the costs and benefits of this final rule.

C. Executive Order 13771

This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings of this final rule are discussed in the rule's RIA, which has been uploaded to the docket.

D. Executive Order 13132

This final rule was analyzed in accordance with the principles and criteria contained in E.O. 13132, Federalism, 64 FR 43255. E.O. 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” The regulatory changes in this final rule may preempt State, local, and Indian tribe requirements but do not have substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous materials transportation law contains an express preemption provision, 49 U.S.C. 5125(b), that preempts State, local, and Indian tribe requirements on certain covered subjects, unless the non-Federal requirements are “substantively the same” as the Federal requirements:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous material 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, inspection, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

This final rule addresses covered subject items (1), (2), (3), and (5) above. Therefore, this final rule preempts State, local, or tribal requirements concerning these subjects unless the non-Federal requirements are “substantively the same” as the Federal requirements. PHMSA received no comments on the NPRM regarding the effect of the adoption of the specific proposals on State, local or tribal governments.

E. Executive Order 13175

This final rule was analyzed in accordance with the principles and criteria contained in E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249. E.O. 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that significantly or uniquely affect Tribal communities by imposing “substantial direct compliance costs” or “substantial direct effects” on such communities or the relationship and distribution of power between the Federal government and Indian tribes. This final rule is likely to affect offerors and carriers of hazardous materials, some of whom are small entities, such as chemical manufacturers, users and suppliers, packaging manufacturers, distributors, and training companies. It does not impose substantial direct compliance costs and does not have substantial direct effects on Native American tribal governments. Therefore, the funding and consultation requirements of E.O. 13175 do not apply. Further, PHMSA did not receive comments on the tribal implications of the rulemaking.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess its impact on small entities, unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking, 68 FR 7990,” requires agencies to establish procedures and policies to promote compliance with the Regulatory Flexibility Act and to “thoroughly review draft rules to assess and take appropriate account of the potential impact” of the rules on small businesses, governmental jurisdictions and small organizations. This rule was developed in accordance with this E.O. and DOT's procedures and policies (DOT Order 2100.6) to promote compliance with the Regulatory Flexibility Act and to ensure that the potential impacts of a regulatory action on small entities were properly considered.

Section 603(b) of the Regulatory Flexibility Act requires an analysis of the possible impact of the rule on small entities, including the need for the rule, the description of the action, the identification of potentially affected small entities, the reporting and recordkeeping requirements, the related Federal rules and regulations, and the alternative proposals considered.

PHMSA expects the amendments in this rule to result in overall net cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. Additionally, the changes effected by this rule will relieve U.S. companies, including small entities competing in foreign markets, from the burden of complying with a dual system of regulations. Therefore, PHMSA expects that these amendments will not have a significant economic impact on a substantial number of small entities. However, PHMSA solicited comments in the NPRM on the anticipated economic impacts to small entities. Comments from Amazon and NRF to the NPRM indicated that the requirement to prepare a test summary and the subsequent distribution to others in the supply chain for all lithium cells and batteries manufactured would have a disproportionate impact on small businesses. While the commenters provided no quantitative context, PHMSA estimated the burden on manufacturers and subsequent distributors for the lithium cell and battery test summary requirement in the SBA below to address this issue. Such analysis for this final rule is as follows, supplemented by the analysis contained in the RIA, which can be found in the docket for this rulemaking:

1. Need for the Final Rule

This final rule adopts the conditional use of international standards, and where appropriate, harmonizes domestic transportation requirements for hazardous materials with those found in the applicable international standards. This harmonization promotes compliance cost savings, process efficiencies/time savings, reduced potential property, health and environmental damages, and increased trade flows/reduction in barriers to trade.

The benefits from the adoption of the amendments include enhanced transportation safety resulting from the consistency of domestic and international hazard communication and continued access to foreign markets by U.S. manufacturers and other businesses that are transporters of hazardous materials.

2. Description of the Action

This final rule facilitates the transportation of hazardous materials in international commerce by providing consistency with international standards. The rule will align the HMR with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements.

3. Identification of Potentially Affected Small Entities

The term “small entities,” as described in 5 U.S.C. 601, comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000. The amendments considered here are likely to affect offerors and carriers of hazardous materials, some of whom are small entities, such as chemical manufacturers, users and suppliers, packaging manufacturers, distributors, and training companies.

As noted above, PHMSA expects that these amendments will not have a significant economic impact on a substantial number of small entities. However, to address comments to the NPRM indicating that the requirement to create a test summary for lithium cells and batteries and for subsequent distributors to make this information available to others in the supply chain would have a disproportionate impact on small businesses, PHMSA estimated the burden on manufacturers and subsequent distributors for the lithium cells and batteries test summary requirements. PHMSA identified approximately 3,700 small entities that may be impacted by the lithium cell and battery test summary requirements. PHMSA examined the entities in NAICS codes for battery retailers, wholesalers, and merchants and identified the percentage of entities in each NAICS industry that are involved in distributing batteries based on the sub-NAICS product series information provided in the 2012 Economic Census by Industry. PHMSA assumed that product manufacturers would include 27.9 percent of Electrical Apparatus and Equipment, Wiring Supplies, and Related Equipment Merchant Wholesalers (NAICS 423610), 50 percent of Power-Driven Handtool Manufacturing (NAICS 333991) and 100 percent of Electronic Computer Manufacturing (NAICS 334111) and Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing (NAICS 334220). Finally, PHMSA determined that retailers would need to make the test summary document available to customers. PHMSA assessed that retailers would predominantly fall within the All Other Miscellaneous Store Retailers (NAICS 453998) and that 2.2 percent of all firms in this sector may be affected. Then PHMSA multiplied this percent by the more recent U.S. Census Bureau Statistics of U.S. Businesses (SUSB) 2016 ^[18] to estimate the total number of potentially impacted respondents. Please see the RIA submitted to the docket for this rulemaking for a more detailed analysis of these small entities. As a result of our analysis on the impacts test summary document requirements will have on small buisnesses, PHMSA believes that although some small businesses will be directly impacted, particular firms and their associated industries are unlikely to experience significant (i.e., greater than 1 percent) impacts.

• Reporting and recordkeeping requirements

Reporting and recordkeeping requirements are discussed in detail in the RIA submitted to the docket for this rulemaking and the “Paperwork Reduction Act” section of this rulemaking. These requirements will apply to all regulated entities, including small entities.

4. Related Federal Rules and Regulations

PHMSA is unaware of any Federal rules and regulations that are substantially similar to the requirements in this final rule.

5. Alternative Proposals for Small Business

The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where it is possible to do so and still meet the objectives of applicable regulatory statutes. PHMSA does not believe there are alternative compliance standards for small businesses that still meet the objectives of these regulatory statutes.

Excepting small entities from the test summary requirements would not fully harmonize the HMR with the UN Model Regulations, IMDG Code, ICAO Technical Instructions, IATA Dangerous Goods Regulations and other related national and international dangerous goods regulations that require manufacturers and distributors of lithium cells and batteries and equipment powered by cells and batteries to make available a “test summary” as specified in the UN Manual of Tests and Criteria, Sixth Revised Edition, Amendment 1, Part III, sub-section 38.3, paragraph 38.3.5. Fully harmonizing the test summary requirements allows traceability and accountability of those involved in the lithium cells and batteries transport chain, including small entities, thereby ensuring that lithium cell and battery designs offered for transport contain specific information on the required UN tests. In addition, it allows those in the distribution chain, including small entities, to more easily identify non-counterfeit products by providing confirmation to users that the battery is from a legitimate and compliant source and that they are receiving, and potentially reoffering for transportation, a battery that is of a tested and approved type. PHMSA believes this may generate safety benefits if counterfeit batteries are more likely to rupture, catch fire or otherwise increase the risk of a dangerous incident.

6. Conclusion

PHMSA conducted a Small Business Analysis (SBA) for this final rule (see RIA in the docket for this rulemaking). Based on this analysis, PHMSA believes that some small businesses will be directly impacted by the lithium cells and batteries test summary requirement; however, PHMSA found particular firms and their associated industries are unlikely to experience significant impacts. In particular, PHMSA demonstrated that the average annual cost of the test summary document is less than one percent of the average annual revenue for each NAICS revenue category for which data was available. Please see the RIA for a more detailed analysis.

Comments from Amazon and NRF to the NPRM indicated that the requirement that subsequent distributors produce a test summary would have disproportionate impact on small businesses. While the commenters provided no quantitative data, PHMSA did review the initial estimation of burden on subsequent distributors in the SBA for the lithium cells and batteries test summary requirement to address this issue. Please see the RIA for this rulemaking in the docket.

Many companies, including small entities, will realize overall economic benefits as a result of the amendments in the final rule. As previously discussed, PHMSA expects the amendments in this rule to result in a net cost savings and ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. Additionally, the changes effected by this final rule will relieve U.S. companies, including small entities, competing in foreign markets, from the burden of complying with a dual system of regulations. Consequently, PHMSA certifies that this final rule does not have a significant economic impact on a substantial number of small entities.

G. Paperwork Reduction Act

PHMSA has analyzed this rule in accordance with the Paperwork Reduction Act of 1995 (PRA) (Pub. L. 96-511). PHMSA is revising the approved information collections under the following OMB Control Numbers: OMB Control No. 2137-0018, “Inspection and Testing of Portable Tanks and Intermediate Bulk Containers;” OMB Control No. 2137-0034, “Hazardous Materials Shipping Papers & Emergency Response Information;” OMB Control No. 2137-0557, “Approvals for Hazardous Materials;” OMB Control No. 2137-0572, “Testing Requirements for Non-Bulk Packaging (Formerly: Testing Requirements for Packaging);” OMB Control No. 2137-0559, “Rail Carriers and Tank Car Tank Requirements, Rail Tank Car Tanks—Transportation of Hazardous Materials by Rail.”

OMB Control Number 2137-0018, “Inspection and Testing of Portable Tanks and Intermediate Bulk Containers”

PHMSA anticipates that this final rule will result in an increase in burden due to the proposed requirement to indicate the water temperature during a hydraulic pressure test for rigid plastics and composite IBCs. PHMSA does not estimate an increase in the number of respondents or responses, because the proposed amendment only adds burden for respondents already pressure testing rigid plastics and composite IBCs. PHMSA estimates that it will take an average of 1 additional minute to add the additional information to the already required test report. This information collection currently accounts for 20 respondents completing 100 test reports per year at 6 minutes per response. Increasing the burden time to 7 minutes per response increases the burden by 33.33 hours. At a mean hourly wage of $38.77,^[19] it is estimated to increase annual salary costs by $1,292.34. PHMSA does not anticipate this requirement will affect out-of-pocket expenses.

Annual Increase in Number of Respondents: 0.

Annual Increase in Number of Responses: 0.

Annual Increase in Burden Hours: 33.33.

Annual Increase in Salary Costs: $1,292.34.

Annual Increase in Burden Costs: $0.

OMB Control Number 2137-0034, “Hazardous Materials Shipping Papers & Emergency Response Information”

PHMSA estimates that this rulemaking will result in an overall increase in burden attributed to the proposed requirement to create a test summary for lithium cells and batteries manufactured after January 1, 2008. Lithium cell or battery manufacturers will need to create a test summary for all the previously manufactured lithium cells and batteries. Following the publication of the final rule, PHMSA will revise the annual burden, as a test summary will only need to be created following manufacture of a new lithium cell and battery. Because this final rule accounts for previously manufactured lithium cells and batteries, PHMSA believes that the burden will substantially decrease for subsequent years after a final rule goes into effect.

In the NPRM, PHMSA estimated the requirement to create a test summary for lithium cells and batteries manufactured after June 30, 2003 would result in an overall increase in burden. In response to comments received in the NPRM, discussed in more detail above, PHMSA is adopting a requirement to require a test summary for lithium cells and batteries manufactured after January 1, 2008. This will result in less lithium cells and batteries requiring test summaries than estimated in the NPRM. Cells and batteries that ceased being manufactured between June 30, 2003 and December 31, 2007 would not require a test summary or subsequent distribution to downstream distributors. In addition, PHMSA is changing the implementation date for this provision from year 2020 to year 2022. During the voluntary compliance period of the final rule, lithium cell or battery manufacturers will need to create a test summary for all of the previously manufactured lithium cells and batteries; after the final rule goes into effect, lithium cell or battery manufacturers will need to create a test summary for newly manufactured lithium cells and batteries. Therefore, PHMSA is adding two information collections associated with this OMB Control Number—one for lithium cells and batteries manufactured from January 1, 2008 to a final rule implementation date and one accounting for the annual manufacture of new lithium cells and batteries after a final rule compliance date.

In the preliminary RIA, PHMSA identified 73 domestic lithium cell or battery manufacturers per U.S. Census' Annual Survey of Manufactures (NAICS code 335912).^[20] PHMSA looked at publicly available company websites for 35 domestic companies known to manufacture lithium cells or batteries.^[21] Of the 35 domestic lithium cell or battery manufacturers websites that were reviewed, 14 provided product information (e.g., specification sheets or safety data sheets) for specific lithium cells or batteries the company currently manufactures or sells. Based on the information provided on these 14 company websites, the mean number of lithium cell and battery design types currently manufactured by these domestic manufacturers is 32. PHMSA estimated in the preliminary RIA that the number of batteries and cells currently manufactured that were tested between June 30, 2003 and the estimated date of a final rule publication by each domestic lithium cell or battery manufacture to be 80 per manufacturer (32 lithium cells or batteries manufactured × 2.5).^[22] Therefore, 5,840 new test summaries must be created for lithium cells or batteries (73 manufacturers × 80 lithium cells or batteries).

The time to create a test summary is estimated conservatively at 30 minutes per document. PHMSA personnel obtained various existing test reports for lithium cells and batteries and completed sample test summary documents using these test reports with an average time to complete of 13 minutes. In these exercises, the test reports contained almost all the information required for completion of the test summary. PHMSA expected this to be the case for most test summaries and assumes that test reports will be readily available for most design types, but to account for the procuring of any missing information where required, we have estimated the test summary completion time to be 30 minutes. Therefore, PHMSA estimated in the preliminary RIA that this proposal will increase burden by 2,920 hours (5,840 test reports × 30 minutes).

To determine the projected salary cost for preparing new test summaries, PHMSA estimated in the preliminary RIA a mean hourly wage rate of approximately $67.03 ^[23] for a total of $195,727.76 in salary cost (2,920 burden hours × $67.03). PHMSA does not estimate any out-of-pocket expenses for the creation of the test summary.

As noted above, comments received to the NPRM indicated that applying the test summary requirements to batteries manufactured after June 30, 2003 is too long of a time frame to include. For the reasons explained above, PHMSA is changing this provision to require a test summary for lithium cells and batteries manufactured after January 1, 2008. Therefore, cells and batteries that ceased being manufactured between June 30, 2003 and December 31, 2007 will not require a test summary or subsequent distribution to downstream distributors. No comments were received regarding our estimation of the number of domestic cell and battery manufacturers, the number of design types they make, or the time it takes to develop a test summary. Therefore, PHMSA is utilizing the preliminary RIA figures for these items and adjusting to account for the final rule applicability date change.

This final rule extends the applicability date for this provision from year 2020 to year 2022. This increases the compliance time from one year to two years, which results in a reduction of the costs estimated with this provision at the NPRM stage. In the preliminary RIA, PHMSA estimated that the number of batteries and cells currently manufactured—that were tested between June 30, 2003 and the estimated date of a final rule publication—by each domestic lithium cell or battery manufacture to be 80 per manufacturer and that 5,840 new test summaries would need to be created for lithium cells or batteries. To account for the change in not requiring the creation and distribution of test summaries from batteries and cells manufactured between June 30, 2003 to January 1, 2008, PHMSA is reducing the uncertainty multiplier utilized to determine the number of test summaries required from 2.5 to 2.0. Based on the uncertainties noted below, PHMSA estimates the number of batteries and cells currently manufactured—that were tested between January 1, 2008 and the estimated compliance date of a final rule—by each domestic lithium cell or battery manufacture to be 64 per manufacturer (32 lithium cells or batteries manufactured × 2). This change results in a reduction in the number of test summaries required from 5,840 to 4,672 (32 lithium cells or batteries per manufacturer × 2 × 73 manufacturers). Therefore, PHMSA estimates that this requirement will increase the total burden by 2,336 hours (4,672 test reports × 30 minutes).

Uncertainties:

—Information on company websites generally only accounts for battery and cells that are currently actively offered for sale by the company. The test summary requirement would be applicable to all batteries and cells manufactured after January 1, 2008. Thus, the information available on manufacturer websites does not account for these previously made cells and batteries.

—While several websites did show component cells for sale, others did not. It is difficult to know if some battery manufacturers that only list completed batteries on their websites also make their own cells.

—PHMSA identified 14 domestic lithium battery cell and battery manufacturers with usable information on design types on their websites as a representative sample. Companies that did not provide individual product listings on their websites were not included in the above calculations. The companies that were researched constitute a representative sample of lithium cell and battery manufacturers because they make cells and batteries for automobiles, military, medical, and portable electronic devices.

To calculate the total salary cost for preparing new test summaries, PHMSA estimates in this final analysis a mean hourly wage rate of approximately $67.0278,^[24] for a total of $156,577 in salary cost, reduced from the total salary cost estimated at the NPRM stage of $195,721.23. Because there is a two year compliance date, PHMSA estimates that half of the test summary will be created in the first year. Therefore, to estimate first year burden, PHMSA divided the estimated number of responses by 2, resulting in half of the estimated annual burden hours and costs.

Annual Increase in Number of Respondents: 73.

Annual Increase in Number of Responses: 2,336.

Annual Increase in Burden Hours: 1,168.

Annual Increase in Salary Costs: $78,288.

Annual Increase in Burden Costs: $0.

This test summary requirement is also anticipated to increase the burden for recordkeeping requirements. As detailed in the new requirements, the test summary must be made available for every cell or battery design type, including to subsequent distributors, upon request. For the purposes of this analysis, PHMSA assumes that in order to make a test summary available, manufacturers and downstream distributors of lithium cells and batteries will choose the alternative that requires the least amount of recordkeeping burden possible. PHMSA believes the least burdensome method is to make the test summaries available on company websites by utilizing links to battery manufacturer websites where the information is made available. This method presumes that cell and battery manufacturers and distributors maintain infrastructure such as websites that have storage capacity to link to these reports.

To estimate the burden hours and salary costs for this recordkeeping requirement, in the preliminary RIA, PHMSA examined entities in NAICS codes for battery retailers, wholesalers, and merchants (NAICS 453998 & 423610) and identified the percentage of entities in each NAICS industry that is involved in distributing batteries based on the sub-NAICS product series information provided in the 2012 Economic Census by Industry. PHMSA multiplied this percent by the more recent, 2016 County Business Patterns estimate of the total number of entities to estimate the number of potentially impacted respondents. Based on these calculations, PHMSA estimated that 5,644 downstream distributors of lithium cells and batteries comprised of product manufacturers and distributors/retailers, in addition to the 73 domestic manufacturers identified above could be subject to additional recordkeeping requirements as a result of this proposal. PHMSA further estimated that product manufacturers utilize cells and batteries from an average of five different cell or battery manufacturers. Lastly, PHMSA estimated that distributors and retail outlets utilize cells and batteries from an average of 20 cell or battery manufacturers. See Table 5 for a breakdown of the lithium cell and battery supply chain, the number of estimated entities, and the number of estimated test summaries that are required to be made available.

As noted above, to account for the change in requiring creation and distribution of test summaries from batteries and cells manufactured June 30, 2003 to January 1, 2008, PHMSA is reducing the uncertainty multiplier utilized in the preliminary RIA to determine the number of test summaries required from 2.5 to 2.0. This change results in a reduction in the number of test summaries required from 5,840 to 4,672. See below the breakdown of the lithium cell and battery supply chain, the number of estimated entities, and the number of estimated test summaries required to be made available.

PHMSA estimated in the preliminary RIA that ensuring test summaries are available will take 5 minutes per report utilizing the electronic methods noted above.^[25] This results in a total recordkeeping requirement of 3,363.33 annual burden hours (40,360 responses × 5 minutes). At an estimated mean hourly annual salary wage of approximately $67.03 ^[26] PHMSA estimates the salary cost for recordkeeping will increase by $225,444.01. PHMSA does not estimate that this will result in a increase in any out-of-pocket expenses.

Comments to the NPRM from Amazon indicated that the requirement that subsequent distributors produce a test summary would have disproportionate impact on small businesses. While the commenter provided no quantitative information, PHMSA has reviewed our initial estimation of burden on subsequent distributors (both large and small) and revised our estimated impact. The initial review of impacts adequately accounts for the time required to ensure a test summary exists in the least burdensome method of compliance noted above. However, we are amending our estimated impact to account for additional time that may be needed to verify that appropriate information exists, either after initial procurement of the document or link and verification on request of subsequent downstream distributors. This additional time will add another 2 minutes to each test summary increasing the annual burden hours from 5 minutes a response to 7 minutes a response.^[27] This results in a total recordkeeping requirement of 4,572.4 hours (39,192 responses × 7 minutes). At an estimated mean hourly wage of $67.03,^[28] PHMSA estimates the total cost for recordkeeping increases to $306,478 from the preliminary estimate with recordkeeping requirement of $225,437. To estimate the annual increases in the number of respondents, responses and in the burden hours and costs, PHMSA divides the total estimated burden by 2, the number of years of voluntary compliance with this provision due to the change in the implementation date as noted above.

Annual Increase in Number of Respondents: 5,790.

Annual Increase in Number of Responses: 19,596.

Annual Increase in Burden Hours: 2,286.

Annual Increase in Salary Costs: $153,239.

Annual Increase in Burden Costs: $0.

PHMSA is adding additional requirements that would affect the burden for OMB Control No. 2137-0034, but PHMSA believes that the overall effect on the number of respondents and burden hours are negligible in relation to the number of respondents and burden hours currently associated with this information collection. The revisions include: A new requirement to indicate “TEMPERATURE CONTROLLED” on a shipping paper if not already indicated in the proper shipping name, when appropriate; removing 1-dodecene to the list of marine pollutants in Appendix B to § 172.101; a new requirement to include the UN identification number for the material being offered, the name and address of the consignor and consignee, and a container packing certificate on a Dangerous Cargo Manifest for excepted packages containing Class 7 materials transported by vessel.

OMB Control Number 2137-0557, “Approvals for Hazardous Materials”

We anticipate this final rule will increase the overall burden for this information collection request. PHMSA is adding special provision 347 to four explosive Division 1.4S entries on the HMT, which would require the articles to pass the 6(d) test from Part I of the UN Manual of Tests and Criteria to maintain Compatibility Group “S” classification. It is estimated that this will increase the number of annual respondents by 54. PHMSA estimates that each respondent will submit 10 applications each year, for a total increase of 540 annual responses (54 respondents × 10 responses). PHMSA estimates that each application will take 4.75 hours to complete, for a total increase of 2,565 annual burden hours (2,500 response × 4.75 hours). Please see the RIA submitted to the docket for this rulemaking for more information. At a mean hourly wage of $79.06,^[29] PHMSA estimates an increase of $202,797 in salary costs. PHMSA does not estimate any additional out-of-pocket expenses.

Annual Increase in Number of Respondents: 54.

Annual Increase in Number of Responses: 540.

Annual Increase in Burden Hours: 2,565.

Annual Increase in Salary Costs: $202,797.

Annual Increase in Burden Costs: $0.

PHMSA is also adding additional requirements that would affect the burden for OMB Control No. 2137-0557, but PHMSA believes that the overall effect on the number of respondents and burden hours are negligible in relation to the number of respondents and burden hours associated with this OMB Control Number. PHMSA expects a minimal increase due to the proposed revision of special provision A105, which would allow a person to obtain approval from the Associate Administrator for Hazardous Materials Safety if the quantity of hazardous materials exceeds the quantity limits and applicability provisions of § 173.222(c). PHMSA also expects a minimal decrease in the number of approval applicants based on the adoption of a new entry in the § 173.224 Self-Reactive Materials Table and the adoption of three new entries in the § 173.225 Organic Peroxide Table. Respondents wishing to offer these materials in transportation, are no longer required to obtain approval from the Associate Administrator for Hazardous Materials Safety.

OMB Control No. 2137-0572, “Testing Requirements for Non-Bulk Packaging (Formerly: Testing Requirements for Packaging)”

PHMSA estimates this rulemaking will result in an increase in burden due to the proposed requirement to include the water temperature during the hydraulic pressure test for plastic non-bulk packagings. PHMSA does not estimate an increase in the number of respondents or responses, because the proposed amendment only adds burden to persons currently pressure testing plastic non-bulk packagings.

OMB Control Number 2137-0572, as currently approved by OMB, is divided into five Information Collections (IC), one of which is identified as Testing Requirements for Non-Bulk Packaging. This IC is specific to the requirements in § 178.601 for creating the test report. As mentioned in the approved supporting statement (see reginfo.gov), PHMSA has estimated that 5,000 persons will complete this requirement based on historic stakeholder feedback. It's important to note, that this IC is not specific to each packaging type, instead it is for all persons testing non-bulk packaging.

In the approved IC, PHMSA estimated a total of 2 hours for the creation of each test report. Because the change in requirement is only for a small subset of the 5,000 respondents, PHMSA estimated an increase of 1 minute to determine the appropriate water temperature and note in the existing test report. This accounts for a reasonable average increase for all persons completing the test report. At a mean hourly wage of $68.58,^[30] it is estimated to increase annual salary costs of $17,145 (5,000 × 3 = 15,000 responses × 1 min/= 15,000 minutes) (15,000 minutes/60 = 250 hours × $68.58 = $17,145). PHMSA does not anticipate this requirement to affect out-of-pocket expenses.

Annual Increase in Number of Respondents: 0.

Annual Increase in Number of Responses: 0.

Annual Increase in Burden Hours: 250.

Annual Increase in Salary Costs: $17,145.

Annual Increase in Burden Costs: $0.

OMB Control No. 2137-0559 “Rail Carrier and Tank Car Tank Requirements, Rail Tank Car Tanks—Transportation of Hazardous Materials by Rail”

PHMSA anticipates this final rule will result in a decrease in burden because of the proposed requirement to recognize Transport Canada issued Temporary Certificates for one time movements of non-compliant tank cars, in lieu of a DOT-issued OTMA when the tank car shipment's origin or destination is in Canada. Data from the FRA indicates that in calendar year 2017 there were 214 one-time movement requests for tank car shipments with an origin or destination in Canada. PHMSA estimates that half of these movements will operate under a Temporary Certificate issued by Transport Canada, and thus not require PHMSA approval. Therefore, PHMSA estimates there will be a decrease in 54 annual respondents. Each of these respondents is estimated to annually request two OTMAs, for a decrease of 108 responses. PHMSA estimates that each application requires 4.75 hours to complete, resulting in a reduction of 513 burden hours. At an estimated mean hourly wage of $68.58,^[31] this reduction is expected to save $35,181.54 in salary cost. PHMSA estimates there is no reduction in out-of-pocket expenses.

Annual Decrease in Number of Respondents: 54.

Annual Decrease in Number of Responses: 108.

Annual Decrease in Burden Hours: 513.

Annual Decrease in Salary Costs: $35,181.54.

Annual Decrease in Burden Costs: $0.

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

H. Regulation Identifier Number (RIN)

A 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.

I. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act (UMRA) of 1995, Public Law 104-4, establishes significance thresholds for the direct costs of regulations on state, local, or tribal governments or the private sector that trigger certain agency reporting requirements. The statutory thresholds established in UMRA were $50 million for intergovernmental mandates and $100 million for private-sector mandates in 1996. According to the Congressional Budget Office, the thresholds for 2019, which are adjusted annually for inflation, are $82 million and $164 million, respectively, for intergovernmental and private-sector mandates.^[32] This final rule results in cost savings of approximately $55,000 to $2,100,000 per year at a 7 percent discount rate and is the least burdensome alternative that achieves the objective of the rule. It is not significant under UMRA. Therefore, PHMSA is not required to prepare a written statement.

J. Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4375), and implementing regulations by the Council on Environmental Quality (CEQ) (40 CFR part 1500), require that Federal agencies consider the consequences of major Federal actions and prepare a detailed statement on actions that significantly affect quality of the human environment. The CEQ regulations require Federal agencies to conduct an environmental review considering (1) the need for the action, (2) alternatives to the action, (3) probable environmental impacts of the action and alternatives, and (4) the agencies and persons consulted during the consideration process.

1. Need for the Action

This final rule amends the HMR (49 CFR parts 171-180) to maintain alignment with international standards, in part, by incorporating the 20th Revised Edition of the UN Model Regulations, Amendment 39-18 to the IMDG Code, the 2019-2020 ICAO Technical Instructions, and Transport Canada's newest amendments to TDG Regulations.

This action is necessary to incorporate changes adopted in the IMDG Code, the ICAO Technical Instructions, and the UN Model Regulations, effective January 1, 2019. If the changes in this final rule are not adopted in the HMR, U.S. companies—including numerous small entities competing in foreign markets—would be at an economic disadvantage because they would be required to comply with a dual system of regulations. The changes to the HMR contained in this rulemaking are intended to avoid this result.

The intended effect of this action is to align the HMR with international transport standards and requirements to the extent practicable in accordance with Federal hazmat law (see 49 U.S.C. 5120). When considering the adoption of international standards under the HMR, PHMSA reviews and evaluates each amendment on its own merit, on its overall impact on transportation safety, and on the economic implications associated with its adoption. The rule harmonizes the HMR with international standards without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated public. PHMSA has provided a brief summary of each revision and the justification for the revision in this rule.

2. Alternatives

In developing this rulemaking, PHMSA is considering the following alternatives:

Alternative (1): No Action Alternative

If PHMSA were to take no action, current regulations would remain in place and no new provisions would be added.

Alternative (2): Preferred Alternative

This alternative is the adoption of this final rule. The amendments included in this alternative are more fully addressed in the preamble and regulatory text sections of this final rule.

3. Environmental Impacts

Hazardous materials are substances that may pose a threat to public safety or the environment during transportation because of their physical, chemical, or nuclear properties. Under the HMR, hazardous materials are transported by aircraft, vessel, rail, and highway. The hazardous materials regulatory system is a risk management system that is prevention-oriented and focused on identifying a safety hazard and reducing the probability and quantity of a hazardous material release. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, loading, unloading, collisions, handling problems, or deliberate sabotage. The release of hazardous materials can cause the loss of ecological resources (e.g., wildlife habitats) and the contamination of air, aquatic environments, and soil. Contamination of soil can lead to the contamination of ground water. Compliance with the HMR substantially reduces the possibility of accidental release of hazardous materials.

Alternative (1): No Action Alternative

If PHMSA takes no action, the current regulations would remain in place and no new provisions would be added. With this alternative, efficiencies gained through harmonization with updates to international transport standards—including regulated substances, definitions, packagings, stowage requirements/codes, flexibilities allowed, enhanced markings, segregation requirements, etc.—would not be realized. Taking no action would mean enhanced and clarified regulatory requirements intended to decrease the risk of environmental and safety incidents would not be adopted. PHMSA believes these amendments will increase standardization and consistency of regulations, which will result in greater protection of human health and the environment. Consistency between United States and international regulations enhances the safety and environmental protection of international hazardous materials transportation through a better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response procedures in the event of a hazardous materials incident. The HMR authorize shipments prepared in accordance with the ICAO Technical Instructions from transport by aircraft and for transport by motor vehicle either before or after being transported by aircraft. Similarly, the HMR authorize shipments prepared in accordance with the IMDG Code if all or part of the transportation is by vessel. The authorizations to use the ICAO Technical Instructions and the IMDG Code are subject to certain conditions and limitations outlined in part 171 subpart C.

Harmonization will result in more targeted and effective training, thereby facilitating enhanced environmental protection. This rule will reduce inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, air and vessel carriers engaged in the transportation of hazardous materials generally elect to comply with the ICAO Technical Instructions and IMDG Code, as appropriate.

Not adopting the proposed environmental and safety requirements in the final rule under the No Action Alternative would result in a lost opportunity for reducing environmental and safety-related incidents.

Alternative (2): Preferred Alternative

PHMSA selected the preferred alternative. Potential environmental impacts of each proposed amendment in the preferred alternative are discussed as follows:

1. Incorporation by Reference: PHMSA is updating references to various international hazardous materials transport standards including, in part, the 2019-2020 ICAO Technical Instructions; Amendment 39-18 to the IMDG Code; the 20th Revised Edition of the UN Model Regulations; Amendment 1 to the 6th Revised Edition of the UN Manual of Tests and Criteria; and the latest amendments to the Transport Canada TDG Regulations. Additionally, PHMSA is adding three new references to standards and updating six other references to standards applicable to the manufacture use and requalification of pressure vessels published by the ISO.

PHMSA believes these amendments will increase standardization and consistency of regulations, which will result in greater protection of human health and the environment. Consistency between United States and international regulations enhances the safety and environmental protection of international hazardous materials transportation through a better understanding of the regulations, an increased level of industry compliance, the smooth flow of hazardous materials from their points of origin to their points of destination, and consistent emergency response procedures in the event of a hazardous materials incident. The HMR authorize shipments prepared in accordance with the ICAO Technical Instructions from transport by aircraft and for transport by motor vehicle either before or after being transported by aircraft. Similarly, the HMR authorize shipments prepared in accordance with the IMDG Code if all or part of the transportation is by vessel. The authorizations to use the ICAO Technical Instructions and the IMDG Code are subject to certain conditions and limitations outlined in part 171 subpart C.

Harmonization will result in more targeted and effective training, thereby facilitating enhanced environmental protection. This rule will reduce inconsistent hazardous materials regulations, which hamper compliance training efforts. For ease of compliance with appropriate regulations, air and vessel carriers engaged in the transportation of hazardous materials generally elect to comply with the ICAO Technical Instructions and IMDG Code, as appropriate.

2. Consistent with amendments adopted into the UN Model Regulations, PHMSA is revising the Hazardous Materials Table in § 172.101 to include 12 new n.o.s. entries for articles containing dangerous goods and adding defining criteria, authorized packagings, and safety requirements for transportation of these articles. Inclusion of the new entries in the HMT allows for identification of appropriate packaging for 12 n.o.s. entries, which is intended to reduce the likelihood of release of hazardous materials that threaten human health and safety and the environment.

3. PHMSA is making amendments to the HMT to add, revise, or remove certain proper shipping names, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and vessel stowage requirements. Amendments to HMT proper shipping names include: Requiring additional 6(d) testing for certain explosive articles; adding an entry for “Lithium batteries installed in cargo transport unit”; and adding two new entries for “Toxic solid, flammable, inorganic, n.o.s.” Additionally, we also propose to add and revise special provisions, large packaging authorizations, and intermediate bulk container (IBC) authorizations consistent with the UN Model Regulations to provide a wider range of packaging options to shippers of hazardous materials.

Inclusion of entries in the HMT reflects a degree of danger associated with a particular material and identifies appropriate packaging. These inclusions in the HMT provide a greater level of protection against release and consistency across borders. These provisions are not expected to have a material impact on the environment.

4. Changes to the corrosivity classification procedures to include methods that do not involve testing for making a corrosivity classification determination for mixtures.

This amendment permits additional flexibility for classifying corrosive mixtures and provides offerors the ability to make a classification and packing group assignment without having to conduct physical tests. This allowance does not compromise environmental protection or safety. The increased use of not-test methods for classification of mixtures results in less product being utilized to conduct physical testing, less clean-up and disposal that occurs after testing, which provide environmental benefits along with expanded alternatives to traditional testing methods.

5. Consistent with amendments adopted into the UN Model Regulations, PHMSA is requiring the creation of a lithium cell or battery test summary.

PHMSA believes that these amendments provide important additional information to downstream shippers and consumers of lithium batteries, including a standardized set of elements that provide traceability and accountability that lithium cells and batteries offered for transport contain specific information on the required UN tests. Testing standards for lithium batteries help ensure design types are subject to as many as eight separate tests designed to assess their ability to withstand the anticipated rigors incurred during transport. Increased availability of documentation indicating that cells and batteries are of a tested type could lead to a decrease in the number of illegitimate lithium batteries that can present a hazard to users and the environment.

6. Amendments to the HMR regarding the segregation of lithium cells and batteries offered for transport or transported on aircraft in relation to other hazardous materials.

PHMSA believes that the amendments requiring lithium batteries to be segregated from other listed dangerous goods would enhance safety and environmental protection by decreasing the risk posed by a fire involving lithium batteries or another hazardous material. The segregation requirements are intended to avoid the cumulative effects of a fire involving both goods simultaneously. PHMSA believes that this amendment will provide for a net increase in environmental protection and safety by potentially lessening the severity of a fire aboard an aircraft, thus preventing damage to human health and the natural environment.

Summary

In summary, consistency between these international regulations and the HMR allows shippers and carriers to train their hazmat employees in a single set of requirements for classification, packaging, hazard communication, handling, stowage, etc., thereby minimizing the possibility of improperly preparing and transporting a shipment of hazardous materials because of differences between domestic and international regulations. These changes closely mirror changes in the Dangerous Goods List of the 20th Revised Edition of the UN Model Regulations, the 2019-2020 ICAO Technical Instructions, and Amendment 39-18 to the IMDG Code. It is important for the domestic HMR to mirror these international standards regarding the entries in the HMT to ensure consistent naming conventions across modes and international borders.

In some instances, the changes in this final rule may result in a streamlining or reduction in burden to industry. However, in each case, PHMSA believes that those changes are consistent with safety and will not significantly increase the risk of release. Most of the proposed regulations in this final rule increase protections aimed at avoiding safety and environmental risks.

4. Agencies Consulted

PHMSA has coordinated with the FAA, the FMCSA, the FRA, and the U.S. Coast Guard in the development of this final rule. PHMSA considered the views expressed in comments to the NPRM submitted by members of the public, state and local governments, and industry.

5. Conclusion

PHMSA has determined that no significant environmental impacts will result from this the adoption of this final rule. The provisions of the rule build on current regulatory requirements in order to enhance the transportation safety and security of shipments of hazardous materials transported by highway, rail, aircraft, and vessel, thereby reducing the risks of an accidental or intentional release of hazardous materials and consequent environmental damage. PHMSA received no comments specially addressing the environmental impacts of the changes made in this final rule.

K. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), and at http://www.dot.gov/​privacy.

L. International Trade Analysis and Executive Order 13609

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. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standards have a legitimate domestic objective, such as the protection of safety, and do not operate in a manner that excludes 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 notes the purpose is to ensure the safety of the American public and has assessed the effects of this final rule to ensure that it does not exclude imports that meet this objective. The final rule will have positive impacts on international trade because it increases the level of harmonization between U.S. regulations and international standards, which is also consistent with the policy in Executive Order 13609, “Promoting International Regulatory Cooperation,” 77 FR 26413. As a result, this final rule is not considered as creating an unnecessary obstacle to foreign commerce.

M. National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary consensus standards in their regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specification of materials, test methods, or performance requirements) that are developed or adopted by voluntary consensus standard bodies. This final rule involves multiple voluntary consensus standards that are identified and discussed in the section-by-section analysis for § 171.7.

List of Subjects

49 CFR Part 171

• Exports
• Hazardous materials transportation
• Hazardous waste
• Imports
• Incorporation by reference,

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 174

• Hazardous materials transportation
• Rail carriers
• Reporting and recordkeeping requirements
• Security measures

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

49 CFR Part 180

• Hazardous materials transportation
• Motor carriers
• Motor vehicle safety
• Packaging and containers
• Railroad safety
• Reporting and recordkeeping requirements

In consideration of the foregoing, PHMSA amends 49 CFR 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; Pub. L. 101-410 section 4; Pub. L. 104-134, section 31001; Pub. L 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and 1.97.

2. In § 171.7:

a. Add paragraph (s)(2);

b. Revise paragraphs (t)(1) and (v)(2);

c. Redesignate paragraphs (w)(53) through (68) as follows:

d. Add paragraphs (w)(53), (62), and (66) and paragraphs (w)(71), (72) and (75) through (77);

e. Revise paragraphs (aa)(1) through (4);

f. Add paragraphs (bb)(1) (xx), (xxi), and (xxii) and (bb)(2); and

g. Revise paragraphs (dd)(1) through (3).

The revisions and additions read as follows:

3. In § 171.8,:

a. Add the definition for “UN pressure drum” in alphabetical order; and

b. Revise the definition of “UN pressure receptacle”.

The addition and revision read as follows:

4. In § 171.12, paragraphs (a)(1), (a)(3)(v), (a)(4), and (a)(4)(i) are revised to read as follows:

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

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.

6. In § 172.101:

a. Paragraph (e) is revised;

b. The Hazardous Materials Table is amended by removing the entries under “[REMOVE]”, by adding the entries under “[ADD]” and revising entries under “[REVISE]” in the appropriate alphabetical sequence; and

c. In appendix B to § 172.101, the List of Marine Pollutants is amended by revising the entry for Dodecene.

The revisions and additions read as follows:

7. In § 172.102:

a. In paragraph (c)(1):

i. Special provisions 132, 150, 238, the first sentence of special provision 369, and special provision 387 are revised;

ii. Special provisions 325, 388, 389, and 391 are added; and

iii. Special provisions 421 and 422 are revised;

b. In paragraph (c)(2), special provisions A56 and A105 are revised;

c. In paragraph (c)(3), special provision B136 is added;

d. In paragraph (c)(8)(ii), special provision TP10 is revised; and

e. In paragraph (c)(9), special provision W32 is removed.

The additions and revisions read as follows:

8. In § 172.203, paragraph (o) is revised to read as follows:

9. In § 172.407, paragraph (c)(1) is revised to read as follows:

10. In, § 172.514 paragraphs (a) and (c)(3) are revised and paragraph (d) is added to read as follows:

11. In § 172.604, paragraph (d)(2) is revised to read as follows:

12. In § 172.800, paragraph (b)(15) is revised to read as follows:

PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and 1.97.

14. In § 173.2a, revise paragraph (a) introductory text to read as follows:

15. In § 173.6, paragraph (a)(7) is added and paragraph (b)(3) is revised to read as follows:

16. In § 173.21, revise paragraph (f) introductory text and paragraph (f)(1) to read as follows:

17. Effective January 2, 2023, in §  173.21, revise paragraph (f) introductory text and paragraph (f)(1) to read as follows:

18. In § 173.62:

a. Amend paragraph (b) by revising the heading of the Explosives Table; and

b. Amend paragraph (c), by revising the heading of the Table of Packing Methods, and Packing Instruction US 1 to read as follows:

19. In § 173.121, paragraph (b)(1)(iii) is revised to read as follows:

20. In § 173.124, paragraph (a)(4)(iv) is revised to read as follows:

21. In § 173.127, paragraph (a)(1) is revised and (a)(3) is added to read as follows:

22. In § 173.134, paragraph (a)(4) is revised to read as follows:

23. In § 173.136, paragraph (a) is revised to read as follows:

24. Section 173.137 is revised to read as follows:

25. In § 173.159, paragraphs (a)(2)(i) through (iii) and (d)(1) are revised to read as follows:

26. Revise § 173.185 to read as follows:

27. In § 173.218, paragraph (c) is revised to read as follows:

28. In § 173.220, paragraph (b)(2)(ii)(C) is added and paragraph (d) is revised to read as follows:

29. In § 173.222, paragraphs (c) and (d) are revised to read as follows:

30. In § 173.224, revise paragraph (b)(4), the table to paragraph (b), and paragraph (c) to read as follows:

31. In § 173.225, revise the table to paragraph (c), the heading of the table to paragraph (d), paragraph (e), paragraph (g) introductory text, and the heading to the table to paragraph (g) to read as follows:

32. Section 173.232 is added to subpart E to read as follows:

33. In § 173.301b, paragraphs (c)(1) and (d)(1) are revised to read as follow:

34. In § 173.304b, paragraph (b)(5) is revised to read as follows:

35. In, § 173.422 paragraphs (d) and (e) are revised and paragraph (f) is added to read as follows:

36. Add appendix I to part 173 to read as follows:

Appendix I to Part 173—Calculation Method

PART 174—CARRIAGE BY RAIL

37. The authority citation for part 174 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and 1.97.

38. Revise § 174.50 to read as follows:

PART 175—CARRIAGE BY AIRCRAFT

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.

40. In § 175.10, revise paragraphs (a)(2), (3), (14), (15), (a)(17)(v) introductory text, paragraphs (a)(18) and (19), and add paragraph (a)(26) to read as follows:

41. In § 175.33, paragraphs (a)(13)(i) and (iii) are revised to read as follows:

42. In § 175.78, paragraph (b) is revised and paragraph (c)(8) is added to read as follows:

PART 176—CARRIAGE BY VESSEL

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

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

44. In § 176.30, paragraph (a)(9) is added to read as follows:

45. In § 176.84, add provisions 151, 152, 153, and 154 to the table in paragraph (b) to read as follows:

PART 178—SPECIFICATIONS FOR PACKAGINGS

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

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

47. In § 178.71:

a. Revise paragraph (d)(2);

b. Revise parargah (f) introductory text,

c. Add paragraph (f)(4); and

d. Revise paragraphs (i), (j), and (q)(12).

The addition and revisions read as follows:

48. In § 178.75, paragraph (d)(3)(v) is revised to read as follows:

49. In § 178.601, paragraph (l)(2)(viii) is revised to read as follows:

50. In § 178.801, paragraph (l)(2)(viii) is revised to read as follows:

51. In § 178.810, paragraph (c)(2) is revised to read as follows:

PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

52. The authority citation for part 180 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

53. In § 180.207, paragraphs (a)(2) and (d)(1) and (4) are revised and paragraph (d)(6) is added to read as follows:

54. In § 180.217, paragraph (a) is revised to read as follows:

Footnotes