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

- **operation:** document
- **citation:** 77 FR 31274
- **title:** Hazardous Materials: Harmonization With the United Nations Recommendations on the Transport of Dangerous Goods: Model Regulations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2012-05-25
- **effective on:** Not available
- **summary:** This document responds to administrative appeals and solicits public comment on proposals generated as a result of certain amendments adopted in an international harmonization final rule published in the Federal Register. The final rule amended the Hazardous Materials Regulations (HMR) by revising, removing or adding proper shipping names, the hazard class of a material, packing group assignments, special provisions, packaging authorizations, packaging sections, air transport quantity limitations, and vessel stowage requirements. The amendments were necessary to align the HMR with recent revisions to international standards for the transport of hazardous materials by all modes. In this notice, PHMSA proposes to amend the HMR as a result of administrative appeals submitted in response to various amendments adopted in the January 19, 2011 final rule. This document also addresses recent actions taken by the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Further, this notice proposes amendments to the HMR as a result of two administrative appeals submitted by an appellant in response to a final rule published in the Federal Register, that revised shipper responsibilities related to packaging design variation, manufacturer notification, and recordkeeping requirements for certain packaging types.
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Federal Register, Volume 77 Issue 102 (Friday, May 25, 2012) [Federal Register Volume 77, Number 102 (Friday, May 25, 2012)] [Proposed Rules] [Pages 31274-31289] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2012-12523] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176 and 178 [Docket No. PHMSA-2009-0126 (HM-215K)] RIN 2137-AE83 Hazardous Materials: Harmonization With the United Nations Recommendations on the Transport of Dangerous Goods: Model Regulations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: This document responds to administrative appeals and solicits public comment on proposals generated as a result of certain amendments adopted in an international harmonization final rule published in the Federal Register. The final rule amended the Hazardous Materials Regulations (HMR) by revising, removing or adding proper shipping names, the hazard class of a material, packing group assignments, special provisions, packaging authorizations, packaging sections, air transport quantity limitations, and vessel stowage requirements. The amendments were [[Page 31275]] necessary to align the HMR with recent revisions to international standards for the transport of hazardous materials by all modes. In this notice, PHMSA proposes to amend the HMR as a result of administrative appeals submitted in response to various amendments adopted in the January 19, 2011 final rule. This document also addresses recent actions taken by the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Further, this notice proposes amendments to the HMR as a result of two administrative appeals submitted by an appellant in response to a final rule published in the Federal Register, that revised shipper responsibilities related to packaging design variation, manufacturer notification, and recordkeeping requirements for certain packaging types. DATES: Comments must be received by July 24, 2012. ADDRESSES: You may submit comments by any of the following methods: Federal Rulemaking Portal: http://www.regulations.gov . Follow the on-line instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Hand Delivery: To U.S. Department of Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. Instructions: Include the agency name and docket number PHMSA-2009- 0126 (HM-215K) or RIN 2137-AE83 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to http://www.regulations.gov including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. Privacy Act: Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://www.regulations.gov . Docket: You may view the public docket through the Internet at http://www.regulations.gov or in person at the Docket Operations office at the above address (See ADDRESSES). FOR FURTHER INFORMATION CONTACT: Michael Stevens, telephone (202) 366- 8553, or Shane Kelley, telephone (202) 366-0656, Standards and Rulemaking Division, telephone (202) 366-0656, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC. 20590-0001. SUPPLEMENTARY INFORMATION: I. Background II. Administrative Appeals Submitted in Response to the HM-215K Final Rule A. Transportation of ORM-D Material 1. Phase-Out of the ORM-D System 2. Overpacks Containing Limited Quantity or ORM-D Material B. Use of the Square-On-Point and ID Number Limited Quantity Marking C. Fuel Cell Cartridges Transported in Passenger Checked Baggage D. Consumer Commodity Transported by Aircraft E. Incident Reporting for Limited Quantity Material F. Materials of Trade Exceptions III. Recent Changes to Part 8 of the ICAO Technical Instructions IV. Administrative Appeals Submitted in Response to the HM-231 Final Rule V. Section-by-Section Review of Changes VI. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis I. Background On January 19, 2011, PHMSA published a final rule under Docket PHMSA-2009-0126 (HM-215K; 76 FR 3308) that revised the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to align with various international standards. The final rule adopted amendments to the HMR regarding hazard communication, hazard classification including packing group assignment, packaging authorization, air transport quantity limitations, and various other international harmonization-related topics. The amendments were necessary to align the HMR with the latest revisions to the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), the International Maritime Organization's Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of Dangerous Goods Regulations (TDG Regulations), and the United Nations Recommendations on the Transport of Dangerous Goods: Model Regulations (UN Model Regulations) to facilitate to the seamless transportation of hazardous materials internationally, to, from, and within the United States. In this notice of proposed rulemaking (NPRM), PHMSA is proposing a number of amendments in response to administrative appeals filed in accordance with 49 CFR 106.110-130 regarding revisions to the HMR adopted in the January 19, 2011 final rule. This document also addresses recent actions taken by the International Civil Aviation Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain lithium ion battery-powered mobility aids (e.g., wheelchairs, travel scooters) offered by passengers for air transport. Additionally, PHMSA is proposing amendments to the HMR as a result of two administrative appeals submitted by an appellant in response to a final rule published February 2, 2010 (HM-231; 75 FR 5376), that revised shipper responsibilities related to packaging design variation and manufacturer notification recordkeeping requirements for certain packaging types. II. Administrative Appeals Submitted in Response to the HM-215K Final Rule This notice addresses administrative appeals submitted in response to the January 19, 2011 final rule from the following companies and organizations: American Coatings Association (ACA). Association of Hazmat Shippers, Inc. (AHS) Dangerous Goods Advisory Council, Inc. (DGAC). Fuel Cell and Hydrogen Energy Association (FCHEA). Healthcare Distribution Management Association (HDMA). Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI) PPG Industries (PPG). The administrative appeals are discussed in detail as follows: A. Transportation of ORM-D Material A number of administrative appeals concern issues related to our adoption of the international system for transportation of limited quantity [[Page 31276]] material. Specifically, some appellants are concerned with the eventual phase-out of our domestic system for the transportation of limited quantity material otherwise known as other regulated material (ORM-D) (i.e., the ORM-D system). Under certain conditions, the HMR and international standards allow lesser quantities of relatively low risk hazardous materials (i.e., limited quantity material) to be afforded relief from some of the requirements generally applicable to hazardous materials transported by all modes. For example, a limited quantity material is not generally required to be packaged in a DOT or UN standard packaging. Most regulatory amendments resulting from adoption of the international system and the eventual phase-out of the ORM-D system involve revisions to hazard communication requirements, material quantity limitations and the types of material authorized. In this notice, we note that the AHS petition (P-1542) and PHMSA initiative to adopt limited quantity requirements for Types B through F self-reactive liquids and solids (non-temperature controlled) will be addressed in a separate NPRM under Docket No. PHMSA-2011-0142 (HM-219). 1. Phase-Out of the ORM-D System PHMSA revised the HMR to phase out its system of reclassing and transporting limited quantity material as ORM-D. Under this system, a limited quantity of hazardous material that also meets the definition of a ``consumer commodity'' may be reclassed as ORM-D and is eligible for additional exceptions from regulation. See Sec. 171.8 for the definition of ``consumer commodity.'' The January 19 final rule amended the HMR by phasing out the ORM-D system beginning January 1, 2013, for material transported by aircraft and, January 1, 2014, for material transported by all other modes of transportation (e.g., motor vehicle). ACA and HDMA appealed our decision to phase out the ORM-D system arguing that we did so ``without any debate or consideration of [1] the type of materials that use this exception; [2] the costs incurred by the regulated community; and [3] the safety benefits.'' ACA claimed that many companies and organizations, including themselves, asked for a separate rulemaking to address these issues. ACA is also concerned that although we provided a summary of comments against the phase-out in the preamble to the final rule, PHMSA did not discuss arguments raised in the comments. They stated we arbitrarily concluded that because there would be no immediate phase-out of the current ORM-D system, there would not be a sizeable impact to companies on the basis they would have sufficient time to adjust to the eventual phase-out. ACA asked us to reconsider the decision to not move forward in a separate rulemaking and to fully consider the effects of phasing out the ORM-D system. Additionally, HDMA requested that PHMSA allow for up to a 10-year phase-out based on the longevity of its packaging systems (i.e., totes) currently in use. According to HDMA, such totes are permanently marked with the ``Consumer commodity, ORM-D'' marking on them. PHMSA response. The HMR have long-recognized the relatively low risk posed by the transportation of certain hazardous materials such as limited quantities or consumer commodities. Considerable efforts have been made internationally to harmonize multi-modal standards with regard to the transport of limited quantities, including consumer commodities. We held public meetings on this issue in February 2006 and March 2008 to discuss potential impacts on domestic stakeholders. Additionally, this issue was discussed during our pre-UN public meetings held in 2006 and 2007. There was considerable domestic interest in pursuing further harmonization internationally due to the potential for substantial savings in transportation costs and improved transportation efficiency. In the advance notice of proposed rulemaking (ANPRM) (October 21, 2009; 74 FR 53982) and NPRM we invited comments on this issue with regard to aligning the HMR with the UN Model Regulations for the domestic and international transport of limited quantities and consumer commodities. Of particular concern were any negative impacts on the domestic transportation of consumer commodities reclassed as ORM-D materials. While some changes adopted in the UN Model Regulations were similar to those currently in the HMR regarding limited quantities and consumer commodities (e.g., inner packaging limits and non-specification outer packagings allowed), some changes were not (e.g., marking, labeling, package gross mass). We stated that depending on the comments received and our own evaluation, we may determine that the significance of any amendments on the issue may warrant a separate rulemaking action. In the January 19, 2011 final rule, we concluded a separate rulemaking was not in the best interest of the hazardous material transportation community particularly when it involves international transportation. Further, creating a single global system for packaging, hazard communication, and transportation of limited quantity material would facilitate the domestic and international flow of hazardous material trade and any further delay in the phase-out would not be useful. Little or no quantification of any negative impact, including costs to domestic shippers and carriers alike, was provided in response to the ANPRM or NPRM. However, the Healthcare Distribution Management Association (HDMA) did provide some cost data related to its unique practice of reusing totes permanently embossed with the ORM-D marking. Some commenters also argued against any phase-out based on the historically safe transportation of limited quantity material under the ORM-D system. Commenters further stated that PHMSA should not adopt the international system simply based on the opportunity to align the HMR with international standards. Allowing dual systems for communicating packages of limited quantity material would likely cause confusion and place unreasonable burdens on carriers and some shippers to train their hazmat employees to recognize and comply with both systems. We believe adopting a single global system for the transportation of limited quantity material will greatly improve safety and efficiency by decreasing the aforementioned potential for delays and confusion during transportation and by removing the burden of providing training in dual systems used to communicate the transportation of limited quantity material. However, we recognize the need to provide sufficient time for domestic shippers and carriers to adjust to the revised system and are sympathetic to the concerns expressed by ACA, HDMA and others regarding this need. Therefore, in this notice we are proposing only to authorize the continued use of packagings marked ``Consumer commodity, ORM-D'' until December 31, 2015 for domestic highway, rail and vessel transportation. 2. Overpacks Containing Limited Quantity or ORM-D Material In the January 19, 2011 final rule, PHMSA revised the regulation for overpacks (as defined in Sec. 171.8) by requiring the ``OVERPACK'' marking on an overpack containing limited quantity packaging if all markings are not visible. DGAC expressed concern over the manner in which the language in the requirement is phrased, and that it implies all markings on each packaging in the overpack must be visible. DGAC noted that this is not consistent with the [[Page 31277]] UN Model Regulations which states the overpack ``shall be marked with the word ``OVERPACK'' and the marking required by this Chapter unless the markings representative of all dangerous goods in the overpack are visible.'' See 3.4.11 of the 16th Revised Edition of the UN Model Regulations. It is their understanding this refers to the limited quantity marking and not to all markings that may be required by the UN Model Regulations. Their understanding is that use of the term ``representative'' communicates a requirement that only one limited quantity package marking needs to be visible to represent all limited quantity packaging. DGAC requested that PHMSA revise the overpack requirements in Sec. 173.25(a)(6) to be consistent with the UN Model Regulations. PHMSA response. The HMR do not currently require that every individual mark (or label) on each package contained in an overpack be visible. For example, as stated in Sec. 173.25(a)(2), an overpack must be marked with the proper shipping name and identification number (when applicable) for each hazardous material contained in the overpack, unless marking and labels representative of each hazardous material in the overpack are visible. We recommend where packages are stacked and/ or banded on a pallet as part of an overpack, the packages should be positioned, when possible, so that the markings and labels are visible on the outside of the overpack. However, this does not mean that every package marking (or label) must be visible or the overpack must be marked accordingly. With regard to the ``OVERPACK'' marking requirement for overpacks containing limited quantity and ORM packages, in this NPRM we are accepting DGAC's appeal and are proposing to revise Sec. 173.25(a)(6) to clarify that not all limited quantity and ORM markings must be visible and that the marking requirement is only applicable to the limited quantity and ORM mark itself. Additionally, a new Sec. 173.25(a)(7) is proposed to be added for clarity to separate limited quantity and ORM overpack marking requirements from excepted quantity overpack marking requirements. B. Use of the Square-On-Point and ID Number Limited Quantity Marking Formerly, Sec. 172.315 excepted for other than transportation by aircraft, a package containing a limited quantity substance or article from being marked with the proper shipping name if it was marked with a square-on-point containing the UN identification (ID) number of the limited quantity substance or article. In the January 19, 2011 final rule, we provided a one-year transition period to authorize continued use of this marking before the revisions to the limited quantity markings become effective. ACA, DGAC, and PPG all stated the one-year transition period does not allow sufficient time to deplete stock(s) of packagings pre-printed with the square-on-point mark containing the ID number and requested an extension of three- to five-years. Specifically, ACA requested a three- to five-year timeframe while DGAC and PPG ask for a three-year timeframe. ACA, DGAC, and PPG maintained that without a longer transition period, shippers will be forced to remark packaging at their cost and there is no impact to safety by allowing continued use of the existing marking. Appellants also pointed out this alternative limited quantity marking communicates more information than the newly adopted markings or the original ORM-D markings. They stated that PHMSA already provides for a two- to three- year transition period for the phase-out of the ORM-D marking, depending on the mode of transportation. They also requested, for clarification, that any transition periods be included in Sec. 171.14 (transitional provisions) and Sec. 172.300 (marking applicability). PHMSA response. We agree that shippers should be provided with the same transition period to continue using the square-on-point mark containing the UN identification (ID) number that was provided for the continued use of the ORM-D marking(s). In the administrative appeal final rule (HM-215K; RIN 2137-AE76), we granted the appeals submitted by ACA, DGAC, and PPG and revised Sec. 172.315 accordingly to extend the transition period to December 31, 2013. The administrative final rule also authorized, for domestic air transportation, use of the square-on-point mark containing the ID number to continue until December 31, 2012. In response to administrative appeals filed by ACA, HDMA and DGAC, in this NPRM we are proposing that for other than air transportation, continued use of the square-on-point mark containing the ID number would be authorized until December 31, 2015. PHMSA is also soliciting public comment on whether for other than air transportation, a previously authorized limited quantity package marking (i.e., proper shipping name only) should be reauthorized for a similar transition period. C. Fuel Cell Cartridges Transported in Passenger Checked Baggage In the January 19, 2011 final rule, we revised the 49 CFR 175.10 passenger exceptions to allow passengers and crew members to place certain spare fuel cell cartridges containing a flammable liquid (Class 3) or corrosive material (Class 8) in checked baggage. We limited the scope of fuel cell cartridge chemistries allowed in checked baggage by excluding fuel cell cartridges containing Divisions 2.1 (flammable gas) and 4.3 (dangerous when wet) material. Although this is inconsistent with the ICAO Technical Instructions, in that ICAO only restricts spare fuel cell cartridges containing Division 4.3 material from checked baggage, we believed that the prohibition should include spare cartridges containing Division 2.1 materials. Flammable gases are generally prohibited from transportation on passenger-carrying aircraft as cargo. When combined with the uncertainty of the effect of baggage handling on the durability of these products when stowed in a passenger's checked baggage, the risks posed are of concern. In their administrative appeals, FCHEA and LSI requested that PHMSA revise Sec. 175.10 to align with the ICAO Technical Instructions and allow spare fuel cell cartridges containing Division 2.1 flammable gas to be carried in checked baggage. PHMSA response. We are granting the appeal for reconsideration of the issue by providing additional opportunity for comment. We are soliciting public comment until July 24, 2012 for the limited purpose of gathering information to help us determine whether or not to allow fuel cell cartridges containing Division 2.1 flammable gas to be carried aboard a passenger-carrying aircraft in checked baggage. D. Consumer Commodity By Air In the January 19, 2011 final rule, PHMSA adopted requirements for certain consumer commodities intended for transportation by aircraft in new Sec. 173.167. The new description and identification number (ID8000) are consistent with the consumer commodity entry in the ICAO Technical Instructions in Packing Instruction Y963. In its appeal submitted in response to the final rule, DGAC expressed concerns that the alignment between the two standards was not consistent. For example, DGAC pointed out that absorbent material requirements and stack test criteria were not included in the Sec. 173.167 packaging section. [[Page 31278]] PHMSA response. DGAC is correct in its assessment of the inconsistencies that exist between the consumer commodity provisions adopted in the HMR and the ICAO Technical Instructions. Thus, we are granting DGAC's administrative appeal and propose to revise Sec. 173.167 accordingly. E. Incident Reporting for Limited Quantity Material The detailed hazardous materials incident reporting requirements of the HMR allow for exceptions from these requirements, specifically, Sec. 171.16(d)(2) excepts, under certain conditions, the unintentional release of a hazardous material properly classed as ORM-D and a PG III material in Class or Division 3, 4, 5, 6.1, 8, or 9, from the written reporting requirements. ACA indicated in its appeal that the reporting requirements as they apply to limited quantity material should be reviewed based on the eventual phase-out of the ORM-D hazard class and suggested the exception for ORM-D material should be extended to limited quantity packagings. PHMSA response. We agree with ACA that relief from incident reporting previously provided to ORM-D material should continue to be provided for such materials now transported as limited quantities. We are not, however, proposing to extend the exception from incident reporting to limited quantity Class 7 (radioactive) material, instruments, and articles due to the unique nature of the hazard and because this type of material was never authorized to be reclassed and transported as ORM-D. Additionally, this exception is not applicable to air transportation. F. Materials of Trade The materials of trade (MOTS) exceptions of the HMR allow certain hazardous material articles and substances, including ORM-D, to be transported by motor vehicle as part of a business operation under less regulation. PHMSA response. Similar to the applicability of written incident reporting exceptions to limited quantity material, our review of the HMR revealed that we did not amend the materials of trade exceptions under the January 19, 2011 final rule to reflect the eventual phase-out of the ORM-D system. Similar to the revisions to the written incident reporting requirements, we believe there is no impact to safety by extending the exception for ORM-D to limited quantity material. Most materials reclassed as ORM-D are limited quantity material themselves; an ORM-D is a limited quantity material that also meets the definition of a ``consumer commodity.'' See Sec. 171.8 for the definition of consumer commodity. In this notice, we are proposing to extend the MOTS exceptions to limited quantity packages consistent with the exception provided to ORM-D material. We are not, however, proposing to extend the exception to limited quantities of Division 4.3 (dangerous when wet) liquid material or Class 7 (radioactive) material, instruments or articles due to the unique nature of these hazards and because these materials were never authorized to be reclassed and transported as ORM-D. Additionally, we propose to clarify that exceptions for limited quantity material also include limited quantity material authorized under Sec. 173.63 for certain Division 1.4S explosives and Sec. 173.306 for compressed gases. III. Recent Changes to Part 8 of the ICAO Technical Instructions At the 23rd Meeting of the ICAO Dangerous Goods Panel (DGP), held October 11-21, 2011, the DGP recommended amending Part 8 of the ICAO Technical Instructions applicable to passengers and crew members and the hazardous materials (dangerous goods) they may introduce aboard an aircraft either in checked or carry-on baggage or on one's person. Such provisions form the basis of similar provisions provided in Sec. 175.10 of the HMR. One recommendation adopted by the DGP addressed concerns over wheelchairs and other mobility aids found activated after flight. Additionally, the DGP addressed the absence of any reference to mobility aids powered by nickel metal hydride batteries, and wheelchairs and other mobility aids specifically designed to allow its battery or batteries to be removed from the device and carried aboard the aircraft by a passenger within a protective bag or pouch. In this NPRM, PHMSA is proposing to amend the HMR by addressing the potential for unintended activation of all stowed devices on an aircraft and providing for the intentional removal of a lithium ion battery from a device and its stowage in the passenger cabin. PHMSA intends to address remaining Part 8 and Sec. 175.10 revisions, including wheelchairs and other mobility aids powered by nickel metal hydride batteries, in a separate rulemaking under Docket PHMSA-2012-0027 (HM-215L). The ICAO Technical Instructions and the HMR limit lithium ion batteries used to power portable electronic devices and medical devices to 160 watt-hours and 25 grams aggregate equivalent lithium content, respectively. Additionally, the ICAO Technical Instructions and the HMR limit any spare lithium ion batteries used to power portable electronic devices and medical devices to carry-on baggage only. At its 23rd Meeting, the DGP was informed of lithium ion batteries developed for wheelchairs and other mobility aids which did not exceed 160 watt-hours (13.5 grams aggregate equivalent lithium content). Therefore, the DGP adopted a proposal introduced by the International Air Transport Association (IATA) to include spare lithium ion batteries for battery- powered wheelchairs and other mobility aids in Part 8 consistent with the provisions for spare lithium ion batteries used to power portable electronic devices and medical devices. In this NPRM, PHMSA is proposing similar provisions by revising Sec. 175.10(a)(17) of the HMR. The DGP was also informed of new mobility aid designs which require the lithium ion battery to be removed from the device to permit efficient and effective stowage and transport of the mobility aid in the cargo compartment of the aircraft. The DGP agreed it would be safer to require that the removed lithium ion battery be carried in the passenger cabin rather than being stowed as checked baggage with the mobility aid. Subsequently, at the same meeting, the DGP was informed of mobility aid designs equipped with lithium ion batteries, which required removal for stowage (e.g., collapsible), that exceed the 160 watt-hour limit (13.5 grams aggregate equivalent lithium content). The DGP Panel therefore adopted an upper limit of 300 watt-hours (25 grams aggregate equivalent lithium content) for batteries which must be removed and carried aboard in the passenger cabin. The DGP Panel agreed, that when applicable, the battery must be removed by the user. Because the HMR currently places an upper limit on such batteries to 25 grams aggregate equivalent lithium content (300 watt-hours), no corresponding revision to Sec. 175.10(a)(17) of the HMR is necessary. Therefore, in this NPRM, PHMSA proposes to amend the HMR for consistency with the ICAO DGP/23 Panel recommendations. This NPRM also proposes to clarify and correct some related amendments adopted in the original January 19, 2011 final rule. See the Section-by-Section discussion of specific amendments being proposed in Sec. 175.10 in Section V. of this preamble. [[Page 31279]] IV. Administrative Appeal Submitted in Response to the HM-231 Final Rule In this notice, PHMSA responds to an administrative appeal submitted in response to a final rule published February 2, 2010 (HM- 231; 75 FR 5376) that adopted miscellaneous amendments to packaging provisions in the HMR. The final rule revised recordkeeping requirements in Sec. 173.22 for shipper retention of manufacturer notification (including closure instructions) and required shippers to maintain a packaging's manufacturer notification (including closure instructions) for 365 days subsequent to offering the package for transportation. The final rule also revised Sec. 178.2(c) to strengthen manufacturer notification requirements and to allow them greater flexibility in how they provide the notification. The final rule was effective on October 1, 2010. On March 3, 2010, we received an administrative appeal from DGAC requesting that PHMSA delay the effective date of the final rule for two years to provide sufficient time for packaging manufacturers to review their current packaging design manufacturer notification (including closure instructions) for compliance with the new requirement to ensure closure instructions provide a repeatable method of closing the packaging consistent with the way it was closed prior to performing qualification testing on the packaging design. We did not grant the DGAC administrative appeal in our September 30, 2010 final rule (75 FR 60333) that responded to a petition for rulemaking and several other administrative appeals. Specifically, we did not grant DGAC's request for a two-year extension of the effective date; however, we did agree that aligning the review and preparation of a packaging's manufacturer notification with its periodic retest merited consideration because it would facilitate the packaging manufacturer's and distributor's compliance with new packaging manufacturer notification requirements adopted in the rule. Thus, in the September 30, 2010 final rule, we revised the recordkeeping requirement from 365 days to a two-year period for combination packagings and a one-year period for single packagings consistent with a typical packaging design's periodic retest frequency. DGAC submitted a follow-up administrative appeal objecting to our revision in the September 30, 2010 final rule to the recordkeeping requirement for manufacturer notification and requested that PHMSA return the recordkeeping duration to the 365 days adopted under the February 2, 2010 final rule. DGAC stated that while the preamble discussion in the September 30, 2010 final rule recognized its concerns in the initial appeal, the regulatory response did not grant its request for the extension of the effective date and, instead, created a recordkeeping requirement of two years that is more difficult to comply with than the original one-year (365-day) requirement in the February 2, 2010 final rule. DGAC claimed there is no need for a shipper to retain a copy of a packaging's manufacturer notification (including closure instructions) for longer than 365 days. DGAC also asked whether the words ``supporting documentation'' were intentionally omitted from the September 30, 2011 final rule revision to 49 CFR 178.601(g)(1). Further, DGAC requested that PHMSA amend 49 CFR 171.14 to extend the effective date of the February 2, 2010 final rule to October 1, 2011. PHMSA response. Although not stated clearly in both final rules, it was our intent that the new manufacturer notification requirements apply to all applicable hazardous materials packagings manufactured on or after October 1, 2010. Packagings manufactured before this date should already conform to HMR performance standards for their design type in effect at the time of manufacture. As we stated in the February 2, 2010 final rule, we revised this regulation to address an increase in hazardous materials releases as a result of improperly closed packagings. In our opinion, review of existing manufacturer notifications for packaging designs that should already be in compliance with the HMR would involve much less effort than DGAC described in its administrative appeal. We also believe sufficient time has elapsed since the February 2, 2010 final rule was published to complete this task and any additional time is not warranted. Therefore, in this notice, we are denying DGAC's appeal to extend the effective date of the rule. However, we are proposing to amend Sec. 178.2(c)(1)(ii) of the HMR based on DGAC's request to revert back to the original recordkeeping retention duration for manufacturer notification to the 365-day period adopted in the February 2, 2010 final rule. Additionally, PHMSA is proposing to amend Sec. 173.22(a)(4)(ii) by requiring a shipper to retain manufacturer notification (including closure instructions) for a period of 90 days once a package is offered to the initial carrier for transportation in commerce. In this NPRM, PHMSA is proposing to clarify that only bulk packagings and cylinders manufactured in accordance with Part 178 of the HMR are excepted from the manufacturer notification (including closure instructions) retention requirements specified in Sec. 173.22(a)(4) if such information is permanently embossed or printed on the packaging. This exception was only provided with such packagings in mind and was originally adopted as a result of public comment. For clarification, we did not revise Sec. 178.601(g)(1) in the September 30, 2010 final rule as DGAC asserts; we did correct punctuation in Sec. Sec. 178.601(g)(8)(xiii)(C) and (g)(8)(xiii)(D), which do not include references to supporting documentation. Moreover, we note that the requirement for supporting documentation adopted in the February 2, 2010 final rule remains in Sec. 178.601(g)(1) with the statement that the method used to determine whether the inner packaging, including closure, of a Variation 1 packaging maintains an equivalent level of performance to the originally tested packaging design must be ``documented in writing by the person certifying compliance and retained in accordance with paragraph (l)'' of Sec. 178.601. Therefore, no further revision of this paragraph is needed or is proposed in this notice. V. Section-by-Section Review of Changes Part 171 Section 171.16 This section prescribes written hazardous material incident report requirements. In this notice, we are proposing to revise the paragraph (d) exceptions to reflect the eventual phase-out of the ORM-D system on December 31, 2015 and to extend the exception provided for material classed as ORM-D to hazardous materials authorized for transportation as limited quantity material under Subparts C through E and Subpart G of Part 173 of the HMR. This exception is not applicable to air transportation. See section II.E for a comprehensive discussion of the proposed changes. Part 172 Section 172.200 Section 172.200 prescribes the applicability of shipping paper requirements for the transportation of hazardous materials. In the January 19 final rule, paragraph (b)(3) was revised to remove the exceptions for ORM-D material in conformance with revisions [[Page 31280]] made to the limited quantity requirements. In this notice, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA. Additionally, we propose to revise paragraph (b)(3) to correct the shipping paper applicability for a vessel shipment of ORM-D material that was inadvertently adopted in the January 19, 2011 final rule. Additionally, we want to emphasize that limited quantity shipments offered for transportation by air or vessel are required to be accompanied by shipping papers as adopted in the January 19, 2011 final rule. Section 172.315 Section 173.315 prescribes the requirements for marking packages containing limited quantity material. Based on administrative appeals submitted and requests to make the requirements for limited quantity marking clearer, we propose to revise Sec. 172.315 to allow the continued use of alternative limited quantity markings (i.e., square- on-point with Identification Number) marking for the same duration offered for continued use of the ORM-D marking, that is, until December 31, 2015. The expiration date for the square-on-point with Identification Number marking remains December 31, 2012 for air transportation. Section 172.316 Section 172.316 prescribes marking requirements for packages containing materials classed as ORM-D and ORM-D-AIR. As adopted in the January 19 final rule, the marking prescribed in this section will no longer be authorized for limited quantities effective January 1, 2014. In this document, we are proposing to revise the effective date for expiration of the authorization to reclassify to the ORM-D hazard class from December 31, 2013 to December 31, 2015 in response to the appeal submitted by HDMA. The expiration date for the ORM-D-AIR hazard class marking remains December 31, 2012 for air transportation. Part 173 Section 173.6 This section prescribes exceptions from certain requirements of the HMR for the transportation of hazardous materials defined as material of trade when transported by motor vehicle. See Sec. 171.8. In this notice, we are proposing to revise the paragraph (d) exceptions to reflect the phase-out of the ORM-D system on December 31, 2015 and extend
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