# Hazardous Materials: Reverse Logistics (RRR)

- **operation:** document
- **citation:** 81 FR 18527
- **title:** Hazardous Materials: Reverse Logistics (RRR)
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2016-03-31
- **effective on:** 2016-03-31
- **summary:** In this final rule, the Pipeline and Hazardous Materials Safety Administration (PHMSA) is adopting regulatory amendments applicable to the reverse logistics shipments of certain hazardous materials by highway transportation. This final rule revises the Hazardous Materials Regulations (HMR) to include a definition of "reverse logistics" and provides appropriate provisions for hazardous materials within the scope of this definition. This final rule also expands a previously existing exception for return shipments of used automobile batteries transported between a retail facility and a recycling center. The PHMSA incorporated recommendations from petitions for rulemaking and public comment into this rulemaking.
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- **source url:** https://www.federalregister.gov/documents/2016/03/31/2016-07199/hazardous-materials-reverse-logistics-rrr
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Federal Register, Volume 81 Issue 62 (Thursday, March 31, 2016) [Federal Register Volume 81, Number 62 (Thursday, March 31, 2016)] [Rules and Regulations] [Pages 18527-18541] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2016-07199] [[Page 18527]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171 and 173 [Docket No. PHMSA-2011-0143 (HM-253)] RIN 2137-AE81 Hazardous Materials: Reverse Logistics (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this final rule, the Pipeline and Hazardous Materials Safety Administration (PHMSA) is adopting regulatory amendments applicable to the reverse logistics shipments of certain hazardous materials by highway transportation. This final rule revises the Hazardous Materials Regulations (HMR) to include a definition of ``reverse logistics'' and provides appropriate provisions for hazardous materials within the scope of this definition. This final rule also expands a previously existing exception for return shipments of used automobile batteries transported between a retail facility and a recycling center. The PHMSA incorporated recommendations from petitions for rulemaking and public comment into this rulemaking. DATES: Effective: March 31, 2016. FOR FURTHER INFORMATION CONTACT: Steven Andrews, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents of Supplementary Information I. Executive Summary II. Background A. Advance Notice of Proposed Rulemaking B. Notice of Proposed Rulemaking III. Review of Amendments and Response to Comments A. Definition of ``Reverse Logistics'' and Applicability and Hazard Classes B. Packaging C. Hazard Communication D. Training E. Segregation F. Incident Reporting G. Battery Recycling IV. Regulatory Review and Notices A. Statutory Authority B. Executive Order 12866, Executive Order 13563, Executive Order 13610, 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 of 1995 I. Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act List of Subjects I. Executive Summary This final rule creates a new section (Sec. 173.157) in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) with provisions specific to reverse logistics (e.g., returning shipments from retail stores to a product's manufacturer, supplier, or distribution facility) by highway transportation. The PHMSA believes that the requirements adopted in this final rule will benefit retail operators by establishing a regulatory framework targeted to a distinct and limited segment of the supply chain that is associated with retail stores. In this rule, the PHMSA codifies a definition for the ``reverse logistics'' of hazardous materials as ``the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g., to receive manufacturer's credit), recall, replacement, recycling, or similar reason.'' The PHMSA is also addressing the reverse logistics transportation of used automobile batteries to recycling centers. This change to the HMR will address the concerns of stakeholders pertaining to the consolidation of shipments of lead-acid batteries for recycling. II. Background As noted in its petition (P-1528), the Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA) and the PHMSA entered into a partnership agreement in November 2006 for the purpose of enhancing hazardous materials transportation safety involving the return of consumer products to a manufacturer or distributor (referred to in the petition as ``reverse logistics''). In an effort to reduce undeclared hazardous materials shipments and raise awareness of applicable regulations, COSTHA worked with the PHMSA to develop and disseminate outreach materials, training programs, and other resources. Consequently, COSTHA engaged stakeholders in meetings, forums, and other communications to address the challenges posed by reverse logistics shipments. A product of this engagement was the development of COSTHA's 2008 petition for rulemaking. In its petition, COSTHA notes that its organization ``identified an unquantifiable exposure to risk presented through undeclared hazmat, specifically from retail operations that unknowingly return articles containing hazmat to the product manufacturer or a distributor.'' \1\ --------------------------------------------------------------------------- \1\ P-1528, Page 2. http://www.regulations.gov/#!docketDetail ;D=PHMSA-2008-0249. --------------------------------------------------------------------------- This petition also notes that many reverse logistics shipments of hazardous materials were eligible (at the time the petition was drafted) to be classified as Other Regulated Material (ORM-D) and could be shipped under the ``Consumer Commodity'' proper shipping name.\2\ COSTHA also notes that equipment powered by internal combustion engines may be returned to retail outlets after being used and may contain residual fuel, therefore posing a risk in transportation. As a result, such articles transported in forward logistics may not be initially regulated as hazardous materials, but once used, the same article transported in reverse logistics may be regulated as a hazardous material. --------------------------------------------------------------------------- \2\ Consumer commodity means a material that is packaged and distributed in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use. This term also includes drugs and medicines. 49 CFR 171.8. --------------------------------------------------------------------------- COSTHA's petition requested that the PHMSA include a definition in Sec. 171.8 for ``reverse logistics'' and add a new Sec. 173.157 to outline the general requirements and exceptions for hazardous materials shipped in reverse logistics. In addition, the petitioner also requested regulatory relief from certain training, packaging, segregation, hazard communication, and other baseline provisions in the HMR. After the acceptance of this petition, the PHMSA published a final rule: Hazardous Materials: Harmonization With the United Nations Recommendations, the International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air; PHMSA-2009-0126 (HM- 215K) [76 FR 3308].\3\ HM-215K implemented a system for the shipment of limited quantities of hazardous materials consistent with the requirements in the United Nations Model Regulations.\4\ By [[Page 18528]] harmonizing the HMR with international standards, a common, internationally recognized mark was adopted.\5\ In making this change, HM-215K (as appealed) phased out the ORM-D classification and the use of packagings marked ``Consumer commodity, ORM-D'' in surface transportation after December 31, 2020. The majority of shipments in reverse logistics are within the scope and quantity limits of the HMR's limited quantity provisions. --------------------------------------------------------------------------- \3\ 76 FR 3308. \4\ Limited quantity, when specified as such in a section applicable to a particular material, means the maximum amount of a hazardous material for which there is a specific labeling or packaging exception. 49 CFR 171.8. \5\ See 49 CFR 172.315(a)(1). --------------------------------------------------------------------------- The PHMSA also received a petition for rulemaking (P-1561) from the Battery Council International (BCI) addressing return shipments of used lead-acid batteries. In its petition, the BCI requested that the PHMSA authorize the shipment of used batteries from multiple shippers on a single transport vehicle under the exception provided in Sec. 173.159(e). The BCI noted in its petition that it is unclear whether the current exception in Sec. 173.159(e) authorizes the shipment of used batteries from multiple shippers for the purposes of recycling. This rule advances government-wide efforts to clarify, streamline, and allow for flexibility in regulations when possible. Accordingly, this final rule is part of the DOT's Retrospective Regulatory Review (RRR) designed to identify ways to improve the HMR. There are three (3) Executive Orders that make up the RRR review process: Executive Order 13563 (``Improving Regulation and Regulatory Review''), Executive Order 12866 (``Regulatory Planning and Review''), and Executive Order 13610 (``Identifying and Reducing Regulatory Burden''). Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome. Executive Order 13563 supplements and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 issued on September 30, 1993. Furthermore, Executive Order 13610 urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified or whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. The PHMSA's review of the reverse logistics process determined that current regulations could better account for what is a distinct and limited segment of the supply chain associated with the return shipment of consumer items containing hazardous materials from retail store for return to its manufacturer, supplier, or distribution facility. Therefore, consistent with the DOT's RRR efforts, this final rule is intended to clarify, streamline, and allow for flexibility in the regulatory requirements with regards to reverse logistics. As a result of investigative activities conducted by its field operations staff, the PHMSA identified a need to consider regulatory amendments to specifically address the unique issues encountered by this distinct and limited segment of the supply chain. Some of the unique problems that can occur during the reverse logistics of hazmat are: The lack of knowledge regarding the risks of transporting certain products; The lack of hazmat training by employees at a retail store; The difficulty in applying hazmat regulations to reverse logistics shipments; The different packaging(s) other than the original packaging being used to ship the material; The potential for hazmat to be subject to Environmental Protection Agency (EPA) waste manifest rules; The inclusion of items once classified as consumer commodities that no longer meet the ``consumer commodity'' definition. In order to reduce undeclared, misdeclared, or improperly packaged hazmat from being offered and transported in commerce, we are amending the HMR to better address the reverse logistics supply chain. Specifically, we are seeking to ensure retail employers properly identify hazardous materials in the reverse logistics chain and ensure that their employees have clear instructions to safely offer such shipments. Even when intended for ground transportation, the complex transportation network in the U.S. means that these shipments could inadvertently enter into air transportation--a mode of transportation where clear hazard communications is essential. Clear and correct hazard communication allows air carriers to manage the risk in their system by either rejecting, or properly accepting, handling, and segregating hazardous materials. The PHMSA believes that the reverse logistics of hazmat will continue to rise with the increased consumption of goods in a growing economy. By adopting, in part, petitions P-1528 and P-1561, the PHMSA is seeking to account for the distinct challenges associated with this issue. A. Advance Notice of Proposed Rulemaking On July 5, 2012 [77 FR 39662], the PHMSA published an Advance Notice of Proposed Rulemaking (ANPRM) to request comments on reverse logistics. Specifically, we requested comments on regulatory changes intended to address retail operations that ship consumer products containing hazmat in the reverse logistics supply chain. We presented targeted questions in the ANPRM in order to evaluate reverse logistics shipments by highway, rail, and vessel, as these types of shipments are not intended for transportation by air. The PHMSA used the data collected by the ANPRM in its development of the NPRM. B. Notice of Proposed Rulemaking On August 11, 2014 [79 FR 46748], the PHMSA published a Notice of Proposed Rulemaking (NPRM) to request comments on a proposed new section of the regulations for reverse logistics shipments. In response to the NPRM, the PHMSA received comments from the following entities: ---------------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------- Advanced Auto Parts............................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0056. Airline Pilots Association (APA)................................................ http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0049. Alaska Airlines................................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0043. American Coatings Association (ACA)............................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0060. American Pyrotechnics Association............................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0070. American Trucking Association (ATA)............................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0055. Anonymous....................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0050. [[Page 18529]] Anonymous....................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0039. Association of HAZMAT Shippers (AHS)............................................ http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0061. Battery Council International (BCI)............................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0065. Billy Puk....................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0052. C&S Wholesale Grocers........................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0068. Council on the Safe Transportation of Hazardous Articles (COSTHA)............... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0064. Crazy Cracker................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0042. Dangerous Goods Advisory Council (DGAC)......................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0063. Federal Express (FedEx)......................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0053. g2 Revolution................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0044. Giant Cement Holding, Inc....................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0073. Graylin Presbury................................................................ http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0051. Heritage Environmental Services................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0059. Inmar Inc....................................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0045. Kellner's Fireworks Inc......................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0046. National Association of Manufactures............................................ http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0071. National Fireworks Association.................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0047. Orion Safety Products........................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0062. Rechargeable Battery Association (PRBA)......................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0074. Retail Industry Leaders Association (RILA)...................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0058. RSR Corporation................................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0066. Siemens Healthcare.............................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0072. Sporting Arms and Ammunition Manufacturers' Institute (SAAMI)................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0069. Stephen Charles................................................................. http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0040. United Parcel Service (UPS)..................................................... http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0057. Wal-Mart........................................................................ http://www.regulations.gov/#!documentDetail ;D=PHMSA-2011- 0143-0048. ---------------------------------------------------------------------------------------------------------------- III. Review of Amendments and Response to Comments With regard to providing clarity and concise hazmat transport regulations for reverse logistics shipments, the PHMSA considered petitions for rulemaking submitted by the regulated community, input from the PHMSA's enforcement division, and comments submitted to both the July 5, 2012 ANPRM and the August 11, 2014 NPRM. The PHMSA received 34 comments to the ANPRM and 33 comments to the NPRM. As a result, in this final rule, the PHMSA is amending the HMR to: Define the term ``reverse logistics''; Establish a new section in the HMR specifically for the reverse logistics shipment of hazmat; Ensure employees have knowledge and familiarity in preparing hazardous materials shipments subject to the reverse logistics shipments; Define the authorized packaging for reverse logistics shipments; Allow more flexibility in the transportation of lead-acid batteries; Authorize certain materials to be offered in accordance with the new reverse logistics requirements when transported by private carrier. A. Definition of ``Reverse Logistics'' and Applicability and Hazard Classes Definition of ``Reverse Logistics'' In the NPRM, we proposed to define ``reverse logistics'' as ``the process of moving goods from their final destination for the purpose of capturing value, recall, replacement, proper disposal, or similar reason.'' We received several comments pertaining to this definition from the regulated community. The American Coatings Association (ACA) supports a definition for ``reverse logistics'' provided the definition is broad enough to capture recycling, business-to-business transactions, and return scenarios that exist in the marketplace. While the PHMSA appreciates ACA's comments, this rule is more focused on the specific relationship between retail stores and distribution facilities, and not business-to- business operations. However, the PHMSA agrees with ACA's comment pertaining to recycling and is adding the term ``recycling'' to the definition for ``reverse logistics'' in Sec. 171.8 of the HMR. In addition, the Retail Industry Leaders Association (RILA) suggests adding ``such as a retail store'' to the definition of ``reverse logistics'' to provide an example of a final destination. The PHMSA agrees with the intent of this comment and, in the final rule, has amended the definition of ``reverse logistics'' by removing the term ``final destination'' to clarify that, for the purposes of this rulemaking, reverse logistics applies solely to shipments of hazardous materials returned to their manufacturer, supplier, or distribution facility. The American Trucking Association (ATA) and COSTHA are concerned that the proposed definition for ``reverse logistics'' did not include carriers. COSTHA asserts that the term ``moving'' is not appropriate and instead suggests adding the language ``offering for transport or transporting'' to include carriers in the reverse logistics definition. The PHMSA agrees and is addressing COSTHA's comment by modifying the definition of ``reverse logistics'' to include both the process of offering hazmat for transport and the transport of hazmat. The Dangerous Goods Advisory Council (DGAC) suggests limiting the carrier scenarios proposed in Sec. 173.157(b)(1)(ii) and (iii) of the NPRM to only private or dedicated carriers. The DGAC is aware that contract and common carriers have significant concerns with aspects of this rulemaking, whereas private or dedicated carriers are supportive. It is DGAC's view that while exceptions are necessary, the shipper, as appropriate, should retain responsibility for the transportation of hazmat shipments and the responsibility without control should not be placed on contract or common carriers. The PHMSA agrees and is adopting revisions in this final rule so that reverse logistics shipments by non-private carriers are consistent with the HMR's marking requirements for limited quantity shipments. It should be noted that training requirements are an exception to this alignment. This issue is discussed later in this final rule (see heading ``Training.'') We also note that certain types of hazmat proposed in the NPRM, such as retail fireworks, would not be appropriate for shipment as reverse logistics by non-private carriers. Therefore, we are limiting those hazard classes to private carriers only. For the purposes of this final rule, a non-private [[Page 18530]] carrier is anyone who does not own or operate its own fleet of vehicles. The ACA asked for clarification of ``capturing value'' in the definition for ``reverse logistics.'' The PHMSA intended ``capturing value'' to be a way for retailers to return consumer products containing hazmat to their manufacturer, supplier, or distribution facility to receive manufacturer's credit, be resold, or be donated, etc. This final rule seeks to clarify this term within the definition. Several commenters, including Mr. Billy Puk and the ACA, raise concerns about the use of the term ``proper disposal'' in the definition of ``reverse logistics.'' These commenters express concern about potential overlaps with EPA rules for the Federal regulation of hazardous waste. In order to avoid confusion, the PHMSA is removing the term ``proper disposal'' and adding language to the general section in Sec. 173.157 that specifically excludes hazardous waste as defined in Sec. 171.8 as a material eligible for shipment under the reverse logistics section. By eliminating the term ``proper disposal'' from the definition, the PHMSA is avoiding any potential inconsistencies with EPA hazardous waste regulations. Furthermore, the PHMSA notes there is nothing in this final rule that supersedes EPA's Resource Conservation and Recovery Act (RCRA) regulations related to when a material is considered a solid or hazardous waste. The PHMSA is therefore clarifying in Sec. Sec. 171.8 and 173.157 that hazardous waste is outside the scope of this rulemaking. As previously stated, the PHMSA is also clarifying that the definition of ``reverse logistics'' applies only to the return of hazardous materials from a retail store to the product's manufacturer, supplier, or distribution facility. Therefore, in this final rule, the definition for ``reverse logistics'' has been revised to read, ``Means the process of offering for transport or transporting by motor vehicle goods from a retail store for return to its manufacturer, supplier, or distribution facility for the purpose of capturing value (e.g. to receive manufacturer's credit), recall, replacement, recycling, or similar reason.'' In addition, the PHMSA notes that individual consumers are not considered hazmat employees under Sec. 171.8 of the HMR and, therefore, would not be directly affected by the new requirements in this rulemaking. Applicability and Hazard Classes In the NPRM, we proposed hazard classes and quantities of hazmat authorized for reverse logistics shipments. We also proposed to limit shipments under the reverse logistics to highway transportation only. Several commenters request that the PHMSA extend the applicability to rail and vessel transportation. These commenters believe the rule should authorize the use of domestic vessel and rail shipments where such modes of transportation are used as part of the reverse logistics process. Commenters express that without an extension of the proposed rule to cover domestic vessel and rail shipments utilized during reverse logistics, some retailers may have to create two reverse logistics processes, which will add complexity, confusion, and ultimately, difficulty in execution. Since additional modes were not proposed in the NPRM, these comments are beyond the scope of this rulemaking, and the PHMSA is not adding these modes to the applicability section of this final rule. Heritage Environmental Services notes that the PHMSA already provides limited quantity provisions in Part 173 of the HMR for retail products that would typically be shipped under the reverse logistics section. The PHMSA agrees and notes that the hazmat classes and quantities addressed in this final rule are consistent with existing limited quantity provisions when using non-private carriers. One exception is that the final rule authorizes the transportation by private carrier of certain Division 2.1 and 2.2 cylinders without the cylinders being tested for pressure. This exception would authorize retail stores to offer certain returned cylinders as a hazardous material when they may no longer meet the definition of a Division 2.1 or Division 2.2 hazardous material. Other deviations from the limited quantities approach, which would allow for the shipment of 1.4G (fireworks and flares), Division 2.1 and 2.2 cylinders (that do not qualify as limited quantity shipments) sold as retail products, and the return of equipment powered by flammable liquids or flammable gases, are permitted under this section only when offered and transported by private carrier. As discussed later in this final rule, the PHMSA also revised employee training requirements for the shipments under the reverse logistics section. Comments submitted by FedEx seek clarification on the methodology used to develop the authorized hazard classes for this rulemaking. The list of hazardous classes eligible for the reverse logistics section in the NPRM was developed based on information provided in petitions, comments to the ANPRM, and the initial regulatory analysis. However, in response to comments to the NPRM, the PHMSA has revised this final rule to be consistent (with exception of the deviations noted in the previous paragraph) with the hazard classes and quantity limitations found in the applicable corresponding limited quantities sections of the HMR. In the NPRM, we proposed to limit applicable Division 1.4 hazmat to consumer fireworks and ammunition. The PHMSA received comments from the American Pyrotechnics Association, Kellner's Fireworks, the National Fireworks Association, and Greyland Presbury supporting the inclusion of 1.4S and 1.4G fireworks in the final rule. COSTHA commented that the PHMSA should implement a quantity-per-package limit for Division 1.4 hazmat and does not believe that the PHMSA demonstrated an adequate safety analysis to justify including flares and fireworks. The DGAC commented that Division 1.4 materials should not be limited to fireworks and flares and proposed a tiered approach to regulating Division 1.4 hazmat. United Parcel Service (UPS) indicates that Division 1.4 hazmat should not be included as part of this rulemaking since there are already applicable limited quantity provisions. We agree. Therefore, in response to the comments, the PHMSA has revised the proposed language to include Division 1.4 materials in the final rule with certain limitations. For the purposes of fireworks and flares, the reverse logistics transportation of these materials will be limited to consumer grade fireworks sold at retail facilities. In addition, the PHMSA is requiring consumer grade fireworks to be packaged as required by the approval assigned to those fireworks. This will help to ensure that fireworks packages are shipped in an equivalent manner to when they were originally shipped in the forward logistics chain. In response to comments discussed later, the PHMSA has also added language that limits all reverse logistics shipment of Division 1.4 materials to 30 kg (66 pounds) per package. This is consistent with what is required for limited quantities shipments in the forward logistics chain. Also, in response to UPS and other commenters, the PHMSA is limiting the shipment of 1.4S and 1.4G fireworks and flares to transportation by private carrier when shipped as reverse logistics. By authorizing the shipment of these materials as limited quantities by private carrier, the PHMSA is providing an exception from existing limited quantity provisions to authorize for transportation the shipment of consumer fireworks and flares as reverse [[Page 18531]] logistics. However, we believe that the proposed controls coupled with limitation to private carrier-only appropriately balances any safety concerns. With the exception pertaining to 1.4S and 1.4G fireworks and flares as noted above, explosive materials authorized under Sec. 173.157 for non-private carrier will be consistent with the types of 1.4S (ammunition-related) materials authorized to be shipped as limited quantities. Specifically, the PHMSA is authorizing 1.4S hazardous materials that are allowed for shipment as a limited quantity under Sec. 173.63(b) to be allowed for both private and non-private carrier transport of reverse logistics shipments. By ensuring consistent hazard communications for non-private carrier shipments under reverse logistics, air carrier employees will be better able to recognize and reject shipments not authorized for air transportation. The PHMSA received several comments regarding other hazard classes proposed in the applicability section of the NPRM. Several commenters present concerns with including hazard Divisions of 5.2 (organic peroxides), 6.1 (toxic materials), and 6.2 (infectious substances). Specifically, ATA and COSTHA question the inclusion of Division 6.1 hazmat that is also toxic-by-inhalation (TIH). In addition to noting that these materials are inherently dangerous in transport and are not permitted to be shipped as limited quantities, COSTHA asserts its belief that it would be prudent to also prohibit these materials from being offered as reverse logistics shipments. Further, ATA notes its concern with the inclusion of Division 6.2 materials and adds that a shipper with limited training could ship Ebola, for example, under the proposed exception. FedEx and UPS also comment that Division 6.1 and 6.2 materials should not be included in the final rule. Specifically, FedEx contends that even when transported in limited quantities, Division 6.2 hazardous materials may pose a risk to health, safety, and property when transported under the scope of ``reverse logistics.'' Further, UPS notes that including Division 6.2 materials could conflict with various state regulations involving the transportation of medical waste. UPS adds that under the limited quantities section, Division 6.1 hazmat is limited to Packaging Groups (PG) II and III. We agree. Therefore, based on these comments, the PHMSA has determined that Division 5.2 and 6.2 materials would not be appropriate for reverse logistics shipments. Therefore, we are removing the applicability of this rule to Division 5.2 and 6.2 hazardous materials. In addition, the PHMSA is also excluding Division 4.1 materials that are also self-reactive as these materials present a similar risk as Division 5.2 materials. With regards to Division 6.1 materials, the PHMSA notes that there are consumer products found in retail outlets (such as rat poison), that would meet the definition of Division 6.1 and be appropriate for reverse logistics shipments. Additionally, the PHMSA agrees with UPS that these materials should be limited to PG II and III in order to remain consistent with the limited quantities provisions of the HMR. The PHMSA also agrees that TIH materials should not be included and is clarifying in this final rule that Division 6.1 materials which also meet the definition of a TIH material cannot be transported as a reverse logistics shipment. Therefore, in this final rule we are limiting Division 6.1 materials (excluding TIH materials) to PG II and III only. The DGAC suggested that the PHMSA should not include any materials found in Table 1 of the Sec. 172.504 general placarding requirements as part of this rulemaking. Hazardous materials found in Table 1 of Sec. 172.504 must display appropriate placards when any quantity of a material is being transported. We agree. Therefore, we are not including any materials found in Table 1 of the Sec. 172.504 general placarding requirements as part of this rulemaking. In addition, we are also limiting this rulemaking to only a portion of materials found in Table 2 of Sec. 172.504. Wal-Mart requests that the PHMSA extend the applicability to Class 7 (radioactive) materials, which would include retail products such as smoke detectors. Since the PHMSA did not propose to include Class 7 materials as part of the NPRM, the comment is beyond the scope of this rulemaking, and we are not able to accommodate the change it as part of this rulemaking. The ATA expresses concern about the inclusion of Division 4.3 (dangerous when wet) materials and notes that these substances can flare when exposed to water, thus causing issues for emergency responders. COSTHA adds that the PHMSA should consider limits on Division 4.3 materials. We agree. Therefore, based on comments received the PHMSA is no longer considering Division 4.3 materials for this rulemaking and is removing it from the applicability section. Similarly, the PHMSA believes that Class 8 and Class 5, PG I materials are not typically sold as retail products and are otherwise inappropriate due to their risk profile. Therefore, the PHMSA is limiting Class 8 and Class 5 materials to PG II and III, which will also be consistent with the hazard classes authorized under the limited quantity provisions. The PHMSA is not authorizing the shipment of lithium batteries as reverse logistics as the current exceptions for the shipment of lithium batteries in Sec. 173.185 already provide a means for the return of these products. Specifically, Sec. 173.185(d) authorizes the shipment of lithium cells and batteries (including lithium cells and batteries contained in equipment) for disposal and recycling. Section 173.185(f) authorizes the shipment of lithium cells and batteries that are damaged, defective, or recalled. Particularly with the international supply chain associated with these products, establishing a new, alternative, and domestic-only hazard communication requirement for these shipments would be duplicative and would not be in the interests of safety. In summary, after careful review and consideration of the comments to the NPRM, the PHMSA is including certain consumer products in Classes 3, 8 (PG II and III), and 9 (except lithium batteries); certain Division 1.4S materials; and Divisions 2.1, 2.2, 4.1 (excluding self- reactive materials), 5.1 (PG II and III), and 6.1 (excluding TIH and PG I), within the scope of reverse logistics under this final rule. The PHMSA believes, based on comments and petitions, that these hazard classes and divisions cover much of the hazmat in the reverse logistics process, and the risk presented by the quantities of such hazmat used in consumer products can be managed within the reverse logistics provisions established under this rule. In order to codify these hazmat and quantities, the PHMSA is providing an exception for reverse logistics shipments in each of the applicable sections for each hazard class or division that is included as a part of this rulemaking: For example, Sec. 173.150 provides exceptions for flammable liquids. The PHMSA is adding new paragraph (h) to Sec. 173.150 to authorize reverse logistics shipments that meet the limited quantity provision of Sec. 173.150(b), the requirements in the new reverse logistics definition in Sec. 171.8, and the new reverse logistics section in Sec. 173.157. Similar language is being codified to the exceptions section for each hazard class or division included as a part of this rulemaking. However, we note that not all hazmat authorized under the limited quantity [[Page 18532]] provisions is authorized under the reverse logistics section. B. Packaging General Packaging In the NPRM, the PHMSA proposed a set of packaging standards under the reverse logistics exception to ensure consistent and safe packaging requirements for low hazard items. The proposed standard included requiring the use of the original packaging or a packaging of equivalent strength or integrity. The NPRM also proposed to require that inner packagings be leak-proof for liquids and sift-proof for solids. Further, for liquids that require an outer packaging, enough absorbent material to contain a spill from the inner packagings must be present. The proposed exception also required shippers to secure products in cages, carts, or bins to prevent shifting during transport. In response to this proposal, ATA suggests that the PHMSA redraft the packaging requirement to read ``each material must be packaged in the manufacturer's original packaging, if available, and in substantially similar condition to when it left the manufacturer, or a packaging of strength and integrity commensurate to the manufacturer's original pac
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