# Hazardous Materials: Harmonization With International Standards (RRR)

- **operation:** document
- **citation:** 81 FR 61742
- **title:** Hazardous Materials: Harmonization With International Standards (RRR)
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2016-09-07
- **effective on:** Not available
- **summary:** The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the Hazardous Materials Regulations (HMR) to maintain consistency 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 proposes several amendments to the HMR that result from coordination with Canada under the U.S.-Canada Regulatory Cooperation Council.
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- **source url:** https://www.federalregister.gov/documents/2016/09/07/2016-20580/hazardous-materials-harmonization-with-international-standards-rrr
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Federal Register, Volume 81 Issue 173 (Wednesday, September 7, 2016) [Federal Register Volume 81, Number 173 (Wednesday, September 7, 2016)] [Proposed Rules] [Pages 61742-61831] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2016-20580] [[Page 61741]] Vol. 81 Wednesday, No. 173 September 7, 2016 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 107, 171, 172, et al. Hazardous Materials: Harmonization With International Standards (RRR); Proposed Rule Federal Register / Vol. 81 , No. 173 / Wednesday, September 7, 2016 / Proposed Rules [[Page 61742]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 171, 172, 173, 175, 176, 178, and 180 [Docket No. PHMSA-2015-0273 (HM-215N)] RIN 2137-AF18 Hazardous Materials: Harmonization With International Standards (RRR) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the Hazardous Materials Regulations (HMR) to maintain consistency 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 proposes several amendments to the HMR that result from coordination with Canada under the U.S.-Canada Regulatory Cooperation Council. DATES: Comments must be received by November 7, 2016. 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, Docket 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, Docket 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-2015- 0273 (HM-215N) or RIN 2137-AF18 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: Steven Webb, Office of Hazardous Materials Standards or Aaron Wiener, International Standards, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. Incorporation by Reference Discussion Under 1 CFR Part 51 IV. Harmonization Proposals in This NPRM V. Amendments Not Being Considered for Adoption in This NPRM VI. Section-by-Section Review VII. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Regulation Identifier Number (RIN) H. Unfunded Mandates Reform Act of 1995 I. Environment 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 The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) to maintain consistency 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 our ongoing biennial process to harmonize the HMR with international regulations and standards. In this NPRM, PHMSA proposes to amend the HMR to maintain consistency with various international standards. The following are some of the more noteworthy proposals set forth in this NPRM: Incorporation by Reference: PHMSA proposes to incorporate by reference the newest versions of various international hazardous materials standards, including the 2017-2018 Edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions); Amendment 38-16 to the International Maritime Dangerous Goods Code (IMDG Code); the 19th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations); the 6th Revised Edition of the United Nations Manual of Tests and Criteria; and the 6th Revised Edition of the Globally Harmonized System of Classification and Labelling of Chemicals. Additionally, we propose to update our incorporation by reference of the Canadian Transportation of Dangerous Goods (TDG) Regulations to include SOR/2014-152 and SOR/2014-159 published July 2, 2014; SOR/2014- 159 Erratum published July 16, 2014; SOR/2014-152 Erratum published August 27, 2014; SOR/2014-306 published December 31, 2014; SOR/2014-306 Erratum published January 28, 2015; and SOR/2015-100 published May 20, 2015. Finally, in this NPRM, PHMSA proposes the adoption of updated International Organization for Standardization (ISO) standards. Hazardous Materials Table (HMT): PHMSA proposes amendments to the Sec. 172.101 Hazardous Materials Table (HMT) consistent with recent changes in the Dangerous Goods List of the 19th Revised Edition of the UN Model Regulations, the IMDG Code, and the [[Page 61743]] ICAO Technical Instructions. Specifically, we propose 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. Provisions for Polymerizing Substances: PHMSA proposes to revise the HMT consistent with amendments adopted into the UN Model Regulations. Specifically, we propose to include into the HMT four new Division 4.1 entries for polymerizing substances and to add into the HMR defining criteria, authorized packagings, and safety requirements including, but not limited to, stabilization methods and operational controls. Modification of the Marine Pollutant List: PHMSA proposes to modify the list of marine pollutants in appendix B to Sec. 172.101. The HMR maintain this list as the basis for regulating substances toxic to the aquatic environment and allow use of the criteria in the IMDG Code if a listed material does not meet the criteria for a marine pollutant. PHMSA periodically updates this list based on changes to the IMDG Code and evaluation of listed materials. Packaging Requirements for Water-Reactive Materials Transported by Vessel: PHMSA proposes various amendments to packaging requirements for vessel transportation of water-reactive substances consistent with requirements in the IMDG Code. The amendments include changes to the packaging requirements to require certain commodities to have hermetically sealed packaging and to require other commodities-- when packed in flexible, fiberboard, or wooden packagings--to have sift-proof and water-resistant packaging or packaging fitted with a sift-proof and water-resistant liner. Hazard Communication Requirements for Lithium Batteries: PHMSA proposes to revise hazard communication requirements for shipments of lithium batteries consistent with changes adopted in the 19th Revised Edition of the UN Model Regulations. Specifically, PHMSA proposes to adopt a new lithium battery label in place of the existing Class 9 label; to amend the existing marking requirements for small lithium battery shipments in Sec. 173.185(c) to incorporate a new standard lithium battery mark for use across all modes; \1\ to delete the documentation requirement in Sec. 173.185(c) for shipments of small lithium cells and batteries; and to require the lithium battery mark be applied to each package containing small lithium cells or batteries contained in equipment when there are more than four lithium cells or two lithium batteries installed in the equipment or where there are more than two packages in the consignment. --------------------------------------------------------------------------- \1\ Small cells and batteries for the purposes of this rulemaking are a lithium metal cell containing not more than 1 gram of lithium metal, a lithium metal battery containing not more than 2 grams of lithium metal, a lithium ion cell not more than 20 Watt- hours (Wh), and a lithium ion battery not more than 100 Wh (49 CFR 173.185(c) and Section II of Packing Instructions 965 and 968 in the ICAO Technical Instructions). --------------------------------------------------------------------------- Engine, Internal Combustion/Machinery, Internal Combustion: PHMSA proposes to harmonize the HMT proper shipping names utilized for the transportation of engines and machinery containing engines with those in the UN Model Regulations. Additionally, PHMSA proposes harmonization with the IMDG Code for domestic vessel shipments of engines, internal combustion, and machinery containing combustion engines. Under the proposals in this NPRM, the existing ``Engine, internal combustion'' entries would be assigned their own UN numbers and hazard class based on the type of fuel (e.g. a flammable liquid powered engine is assigned a proper shipping name with a Class 3 designation). Existing requirements and exceptions for the transportation of engines and machinery containing engines transported by road, rail, and aircraft would remain unchanged. PHMSA is, however, proposing to harmonize the transportation requirements for transportation by vessel, which includes varying degrees of hazard communication based on the type of fuel, amount of fuel, and capacity of the fuel tank. U.S.-Canada Regulatory Cooperation Council (RCC) Proposals: PHMSA proposes several amendments to the HMR resulting from coordination with Canada under the U.S.-Canada RCC. Specifically, we propose provisions for recognition of Transport Canada (TC) cylinders, equivalency certificates (permit for equivalent level of safety), and inspection and repair of cargo tanks. These changes would be made in conjunction with Transport Canada proposing similar regulatory changes that will provide reciprocal recognition of DOT cylinders and DOT special permits. If adopted in a final rule, the amendments proposed in this NPRM will result in minimal burdens on the regulated community. The benefits achieved from their adoption include enhanced transportation safety resulting from the consistency of domestic and international hazard communication and continued access to foreign markets by U.S. manufacturers of hazardous materials. PHMSA anticipates that most of the amendments in this NPRM will result in cost savings and will ease the regulatory compliance burden for shippers engaged in domestic and international commerce, including trans-border shipments within North America. PHMSA solicits comment from the regulated community on these amendments and others proposed in this NPRM pertaining to need, benefits and costs of international harmonization, impact on safety, and any other relevant concerns. In addition, PHMSA solicits comment regarding approaches to reducing the costs of this rule while maintaining or increasing the benefits. In its preliminary analysis, PHMSA concluded that the aggregate benefits of the amendments proposed in this NPRM justify their aggregate costs. Nonetheless, PHMSA solicits comment on specific changes (i.e., greater flexibility with regard to a particular amendment) that might improve the rule. II. Background Federal law and policy strongly favor the harmonization of domestic and international standards for hazardous materials transportation. The Federal hazardous materials transportation law (49 U.S.C. 5101 et seq., ``Federal hazmat law'') directs PHMSA to participate in relevant international standard-setting bodies and promotes consistency of the HMR with international transport standards to the extent practicable. Although Federal hazmat law permits PHMSA to depart from international standards to promote safety or other overriding public interest, it otherwise encourages domestic and international harmonization (see 49 U.S.C. 5120). In a final rule published December 21, 1990 (Docket HM-181; 55 FR 52402), PHMSA's predecessor--the Research and Special Programs Administration (RSPA)--comprehensively revised the HMR for international harmonization with the UN Model Regulations. The UN Model Regulations constitute a set of recommendations issued by the United Nations Sub-Committee of Experts (UNSCOE) on the Transport of Dangerous Goods (TDG) and the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The UN Model Regulations are amended and updated biennially by the UNSCOE and serve as [[Page 61744]] the basis for national, regional, and international modal regulations, including the IMDG Code and the ICAO Technical Instructions. Since publication of the 1990 rule, PHMSA has issued 11 additional international harmonization rulemakings under the following dockets: HM-215A [59 FR 67390; Dec. 29, 1994]; HM-215B [62 FR 24690; May 6, 1997]; HM-215C [64 FR 10742; Mar. 5, 1999]; HM-215D [66 FR 33316; June 21, 2001]; HM-215E [68 FR 44992; July 31, 2003]; HM-215G [69 FR 76044; Dec. 20, 2004]; HM-215I [71 FR 78595; Dec. 29, 2006]; HM-215J [74 FR 2200; Jan. 14, 2009]; HM-215K [76 FR 3308; Jan. 19, 2011]; HM-215L [78 FR 987; Jan. 7, 2013]; and HM-215M [80 FR 1075; Jan. 8, 2015]. These rulemakings were based on biennial updates of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. Harmonization becomes increasingly important as the volume of hazardous materials transported in international commerce grows. It not only facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials, but it also enhances safety when the international standards provide an appropriate level of protection. PHMSA actively participates in the development of international standards for the transportation of hazardous materials and promotes the adoption of standards consistent with the HMR. When considering the harmonization of the HMR with international standards, 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. Our goal is to harmonize with international standards without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community. Based on recent review and evaluation, PHMSA proposes to revise the HMR to incorporate changes from the 19th Revised Edition of the UN Model Regulations, Amendment 38-16 to the IMDG Code, and the 2017-2018 Edition of the ICAO Technical Instructions, which become effective January 1, 2017.\2\ --------------------------------------------------------------------------- \2\ Amendment 38-16 to the IMDG Code may be voluntarily applied on January 1, 2017; however, the previous amendment remains effective through December 31, 2017. --------------------------------------------------------------------------- In addition, PHMSA proposes to incorporate by reference the newest editions of various international standards. These standards incorporated by reference are authorized for use, under specific circumstances, in part 171 subpart C of the HMR. This proposed rule is necessary to incorporate revisions to the international standards and, if adopted in the HMR, will be effective January 1, 2017. Possible Interim Final Rule The changes to the international standards will take effect on January 1, 2017. Therefore, it is essential that a final rule incorporating these standards by reference be published no later than December 31, 2016 with an effective date of January 1, 2017. Otherwise, U.S. companies--including numerous small entities competing in foreign markets--will be at an economic disadvantage because of their need to comply with a dual system of regulations (specifically, the HMR, UN Model Regulations, and ICAO Technical Instructions). To this end, if it appears a final rule under this docket will not be published prior to January 1, 2017, PHMSA will publish a bridging document in the form of an interim final rule to amend the HMR by incorporating the 19th Revised Edition of the UN Recommendations and the 2017-2018 Edition of the ICAO Technical Instructions. With regard to Amendment 38-16 of the IMDG Code, the International Maritime Organization (IMO) approved an implementation date of January 1, 2018. The current edition of the IMDG Code (Amendment 37-14) remains in effect through 2017; therefore, we will not include the newest version of the IMDG Code in any bridging document. The proposed incorporation by reference of the newest edition of the IMDG Code and all other changes proposed in this NPRM would be addressed in a subsequent final rule also under this docket [PHMSA-2015-0273 (HM- 215N)]. Accordingly, any interim final rule will only incorporate by reference editions of the international standards that become effective on January 1, 2017. III. Incorporation by Reference Discussion Under 1 CFR Part 51 The UN Recommendations on the Transport of Dangerous Goods--Model Regulations, Manual of Tests and Criteria, and Globally Harmonized System of Classification and Labelling of Chemicals, 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 Web sites. The ICAO Technical Instructions, IMDG Code, and all ISO references are available for interested parties to purchase in either print or electronic versions through the parent organization Web sites. The price charged for those not freely available helps to cover the cost of developing, maintaining, hosting, and accessing these standards. The specific standards are discussed at length in the ``Section-by-Section Review'' for Sec. 171.7. IV. Harmonization Proposals in This NPRM In addition to various other revisions to the HMR, PHMSA proposes the following amendments to harmonize the HMR with the most recent revisions to the UN Model Regulations, ICAO Technical Instructions, and IMDG Code, as well as several amendments resulting from coordination with Canada under the U.S.-Canada RCC: Incorporation by Reference: PHMSA proposes to incorporate by reference the latest editions of various international transport standards including the 2017-2018 Edition of the ICAO Technical Instructions; Amendment 38-16 of the IMDG Code; the 6th Revised Edition of the UN Manual of Tests and Criteria; the 6th Revised Edition of the United Nations Globally Harmonized System of Classification and Labelling of Chemicals; and the 19th Revised Edition of the UN Model Regulations. Additionally, we are proposing to update our incorporation by reference of the Canadian TDG Regulations to include SOR/2014-152 and SOR/2014-159 published July 2, 2014; SOR/2014-159 Erratum published July 16, 2014; SOR/2014-152 Erratum published August 27, 2014; SOR/ 2014-306 published December 31, 2014; SOR/2014-306 Erratum published January 28, 2015; and SOR/2015-100 published May 20, 2015. This incorporation by reference augments the broad reciprocity provided in Sec. 171.12 where the HMR allow the use of the TDG Regulations under certain conditions when transporting hazardous materials to or from Canada by highway or rail. Finally, PHMSA proposes the incorporation by reference of new and updated ISO standards. Hazardous Materials Table (HMT): PHMSA proposes amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, vessel stowage and segregation requirements, and passenger and cargo aircraft maximum quantity limits. Packaging Requirements for Water-Reactive Materials Transported by [[Page 61745]] Vessel: PHMSA proposes various amendments to packaging requirements for vessel transportation of water-reactive substances. The amendments include changes to the packaging requirements to require certain commodities to have hermetically sealed packaging and to require other commodities--when packed in flexible, fiberboard, or wooden packagings--to have sift-proof and water-resistant packaging or packaging fitted with a sift-proof and water-resistant liner. These proposed changes are consistent with IMDG Code requirements. Hazard Communication Requirements for Lithium Batteries: PHMSA proposes to revise hazard communication requirements for lithium batteries consistent with changes adopted in the 19th Revised Edition of the UN Model Regulations. Specifically, PHMSA proposes to adopt a new lithium battery label in place of the existing Class 9 label; to amend the existing marking requirements for small lithium battery shipments in Sec. 173.185(c) to incorporate a new standard lithium battery mark for use across all modes; to remove the documentation requirement in Sec. 173.185(c) for shipments of small lithium cells and batteries; and to amend the exception for small lithium cells and batteries requiring the lithium battery mark from the current applicability of ``no more than four lithium cells or two lithium batteries installed in the equipment'' to ``no more than four lithium cells or two lithium batteries contained in equipment, where there are not more than two packages in the consignment.'' Engine, Internal Combustion/Machinery, Internal Combustion: PHMSA proposes to harmonize the HMT entries for the transportation of engines and machinery containing engines with those in the UN Model Regulations. Additionally, PHMSA proposes harmonization with the IMDG Code for domestic vessel shipments of engines, internal combustion, and machinery containing combustion engines. Under the proposals in this NPRM, the existing ``Engine, internal combustion'' entries would be assigned their own UN numbers and hazard class based on the type of fuel (e.g., a flammable liquid powered engine is assigned a proper shipping name with a Class 3 designation). Existing requirements and exceptions for the transportation of engines and machinery containing engines transported by road, rail, and aircraft would remain unchanged. PHMSA is, however, proposing to harmonize the transportation requirements for transportation by vessel, which includes varying degrees of hazard communication based on the type of fuel, amount of fuel, and capacity of the fuel tank. U.S.-Canada Regulatory Cooperation Council (RCC) Proposals: The Prime Minister of Canada and the President of the United States created the U.S.-Canada Regulatory Cooperation Council in 2011. Through this effort, the United States and Canada strive to strengthen regulatory cooperation and reciprocity to enhance economic competitiveness while maintaining high standards of health, safety, and environmental protection. DOT, together with Transport Canada, have collaborated to develop a regulatory partnership statement and work plan, both of which can be viewed at http://trade.gov/rcc . Stakeholder input (which can be viewed at www.regulations.gov under Docket No. PHMSA 2012-0058), as well as internal and mutual regulatory review, help determine work plan initiatives and areas where enhanced regulatory cooperation and reciprocity might be feasible and beneficial provided there is no compromise in safety. Three primary initiatives identified in the work plan are the recognition of inspection and repair of cargo tanks under the U.S. requirements for highway transport, the mutual recognition of standard pressure receptacles (cylinders), and mutual recognition of DOT special permits and Transport Canada equivalency certificates. --PHMSA proposes to address the cargo tank initiative by authorizing facilities in Canada that hold a Certificate of Authorization for repair from a provincial pressure vessel jurisdiction to repair DOT specification cargo tanks that are used to transport hazardous materials in the United States. PHMSA further proposes to except those facilities from registering in accordance with part 107 subpart F of the HMR provided they are registered in accordance with the Transport Canada TDG Regulations. This proposed authority and exception would provide carriers with additional access to repair facilities in Canada without jeopardizing the DOT specification of a cargo tank and broaden reciprocity with Canada, which already recognizes repairs of TC specification cargo tanks performed by authorized and registered facilities in the United States. --PHMSA proposes to address the cylinder initiative by authorizing the filling, requalification, and use of cylinders manufactured in accordance with the TDG Regulations that have a corresponding DOT specification in the HMR. Mutual recognition of cylinder specifications and requalification inspections will mean cylinder users that frequently conduct business that crosses the border will not need to maintain two sets of substantially similar cylinders. --PHMSA proposes to address the equivalency certificate initiative by amending the HMR to allow shipments offered in accordance with an equivalency certificate to transit to their first destination without having to apply for a duplicative special permit from PHMSA. V. Amendments Not Being Considered for Adoption in This NPRM PHMSA's goal in this rulemaking is to maintain consistency between the HMR and the international requirements. We are not striving to make the HMR identical to the international regulations but rather to remove or avoid potential barriers to international transportation. PHMSA proposes changes to the HMR based on amendments adopted in the 19th Revised Edition of the UN Model Regulations, the 2017-2018 Edition of the ICAO Technical Instructions, and Amendment 38-16 to the IMDG Code. We are not, however, proposing to adopt all of the amendments made to the various international standards into the HMR. In many cases, amendments to the international recommendations and regulations are not adopted into the HMR because the framework or structure makes adoption unnecessary. In other cases, we have addressed, or will address, the amendments in separate rulemaking proceedings. If we have inadvertently omitted an amendment in this NPRM, we will attempt to include the omission in the final rule; however, our ability to make changes in a final rule is limited by requirements of the Administrative Procedure Act (5 U.S.C. 553). In some instances, we can adopt a provision inadvertently omitted in the NPRM if it is clearly within the scope of changes proposed in the notice. Otherwise, in order to provide opportunity for notice and comment, the change must first be proposed in an NPRM. The following is a list of notable amendments to the international regulations that PHMSA is not considering for adoption in this NPRM: Large Salvage Cylinders: The 17th Revised Edition of the UN Model Regulations includes guidelines for Competent Authorities to use when issuing approvals for salvage pressure [[Page 61746]] receptacles. These revisions are found in Chapter 1.2, 4.1, 5.4, and 6.2 of the UN Model Regulations. Specifically, these requirements address the packaging, hazard communication, and safe transport of salvage pressure receptacles, also known as salvage cylinders in the United States. The 19th Revised Edition of the UN Model Regulations includes changes to the definition and packaging allowances for salvage cylinders. These changes authorize the use of a large salvage cylinder with a water capacity not exceeding 3,000 L to transport a cylinder with a water capacity up to 1,000 L. Salvage cylinders still require approval by appropriate Competent Authorities. The HMR currently address the packaging, hazard communication, and safe transport of salvage cylinders in Sec. 173.3(d) and do not require approval of the Associate Administrator to do so. PHMSA considers the current salvage cylinder requirements in the HMR to provide a sufficient level of safety and adequately address the shipment of damaged and defective cylinders. It is appropriate that larger salvage cylinders go through the existing approval process. Therefore, PHMSA is not proposing changes to the current HMR requirements for salvage cylinders. Large Packagings for Waste Aerosols: The 19th Revised Edition of the UN Model Regulations includes changes to the large packaging requirements for waste aerosols. The most notable change was to the packing group (PG) performance level required for large packagings transporting waste aerosols--from PG III to PG II. The HMR do not currently authorize the use of large packagings for aerosols. Therefore, PHMSA is not proposing changes to the current HMR requirements for large packagings for waste aerosols. Table Tennis Balls: The 19th Revised Edition of the UN Model Regulations includes a special provision assigned to ``UN 2000, Celluloid'' that excepts table tennis balls made of celluloid from the requirements of the Model Regulations if the total net mass of each table tennis ball does not exceed 3 grams and the net mass of table tennis balls does not exceed 500 grams per package. In a previously issued letter of interpretation (Ref. No. 14-0141), PHMSA stated that ``it is the opinion of this office that the entry for UN 2000 Celluloid only applies when the material is in a pre-manufactured state i.e. blocks, rod, rolls, sheets, tubes etc.'' We further stated: ``Based on the information provided in your letter, including form and quantity of celluloid contained in the table tennis balls, it is our determination the table tennis balls are not in a quantity and form that pose an unreasonable risk to health, safety or property during transportation and, therefore, are not subject to regulation under the HMR.'' PHMSA maintains our position as stated in the letter of interpretation (Ref. No. 14-0141) that table tennis balls are not subject to the requirements of the HMR and that the ``UN 2000, Celluloid'' entry only applies when the material is in a pre- manufactured state (i.e. blocks rod, rolls, sheets, tubes, etc). Therefore, PHMSA is not proposing changes to the current HMR requirements to provide an exception for UN 2000. IMO Portable Tank Marking: Amendment 38-16 to the IMDG Code includes an amendment to require IMO portable tanks manufactured before January 1, 2003, to be marked with an indication of the portable tank instruction for which it meets the minimum test pressure, minimum shell thickness, pressure relief requirements, and bottom opening requirements (i.e., the appropriate portable tank instruction). This change was made to clarify that the existing requirement for marking portable tanks with the portable tank instruction either on the tank itself or the tank data plate also applied to older IMO type portable tanks manufactured before January 1, 2003. PHMSA did not adopt the requirement for portable tanks to be marked with an indication of the portable tank instruction to which they comply when this requirement was first introduced. Therefore, PHMSA is not proposing changes to the current HMR requirements for IMO type portable tank markings. PHMSA notes, however, that portable tanks utilized in international transportation will need to be marked with an indication of an appropriate portable tank instruction. Classification Inconsistencies: The 19th Revised Edition of the UN Model Regulations includes text to address situations in which a consignor who is aware, on the basis of test data, that a substance listed by name in column 2 of the Dangerous Goods List in Chapter 3.2 of the UN Model Regulations meets classification criteria for a hazard class or division that is not identified in the list, may with the approval of the competent authority consign the substance: --Under the same UN number and name but with additional hazard communication information as appropriate to reflect the additional subsidiary risk(s) (e.g., documentation, label, placard) provided that the primary hazard class remains unchanged and that any other transport conditions (e.g., limited quantity, packing and tank provisions) that would normally apply to substances possessing such a combination of hazards are the same as those applicable to the substance listed; or --Under the most appropriate generic or n.o.s. entry reflecting all hazards. The HMR, in Sec. Sec. 172.402(a)(2) and 172.202(a)(3), allow and in most cases require hazardous materials exhibiting an additional subsidiary hazard to be labeled with the subsidiary hazard and to have the additional hazard described on shipping papers. As detailed in the definition of Competent Authority Approval in Sec. 107.1, specific regulations in subchapter A or C of the HMR are considered Competent Authority Approvals. PHMSA generally does not issue Competent Authority Approvals for situations already addressed by the HMR. Therefore, PHMSA is not proposing such changes to the current HMR requirements. Although PHMSA is not incorporating language specifically requiring a Competent Authority Approval in situations where a consignor has determined a substance has a different subsidiary risk than those identified in the HMT, we maintain the power to do so in order to facilitate commerce in situations where other competent authorities or carriers require such a document be provided. Filling Procedures for UN Pressure Receptacles: The 19th Revised Edition of the UN Model Regulations includes text in P200 requiring the filling of pressure receptacles to be carried out by qualified staff using appropriate equipment and procedures. These procedures are described as including checks of the following: conformity of receptacles and accessories with the UN Model Regulations, compatibility of the cylinder with the product to be transported, absence of damage that might affect safety, compliance with the degree or pressure of filling, and accuracy of marks and identification. Additionally, five ISO standards concerning inspection and filling of various cylinders were incorporated into P200. Compliance with these filling procedures is considered met if the appropriate ISO standard is applied. The existing HMR requirements for filling procedures for pressure receptacles provide a sufficient level of safety and adequately address filling requirements for pressure vessels. Therefore, PHMSA is not proposing changes to the current HMR requirements for the filling of pressure receptacles nor the adoption of any of [[Page 61747]] the five ISO standards applicable to filling conditions and inspections. Intentionally Infected Animals: The 2017-2018 ICAO Technical Instructions adopted changes to the classification framework for infected live animals and animal materials. These changes are intended to support consistent classification for infected animals and animal materials. The issue was brought to the attention of the UN Sub- Committee at its 48th session, but they were not able to ascertain the impact of the changes made to the ICAO Technical Instructions or if further changes were necessary to the UN Model Regulations. The representative from ICAO who presented the paper noted they would come back with an additional paper and clarifications at the next session. As work at the UN Sub-Committee is still ongoing, PHMSA is not proposing changes to the current HMR requirements for the classification or transportation of infected live animals or animal materials at this time. Special Aircraft Operations: The 2017-2018 ICAO Technical Instructions adopted changes to the general exceptions for hazardous materials carried by an aircraft in special aircraft operations (e.g., air ambulance, search and rescue). These changes are to clarify that hazardous materials involved in these special aircraft operations for related purposes (e.g., training flights and positioning flights prior to or after maintenance) are excepted from the ICAO Technical Instructions as stated in Part 1, Chapter 1. On June 2, 2016, PHMSA published a final rule [Docket No. PHMSA-2013-0225 (HM-218H); 81 FR 35483] that revised Sec. 175.1(d) (formerly Sec. 175.9(b)(4)) to clarify that staging operations and other operations related to dedicated air ambulance, firefighting, or search and rescue operations are intended to be excepted from the HMR when in compliance with the [Federal Aviation Regulations] (FAR).'' Accordingly, PHMSA and the Federal Aviation Administration (FAA) believe that the current special aircraft operation's provisions in Sec. 175.1(d) sufficiently provide the flexibility to allow for these types of flight activities (e.g., training flights and positioning flights prior to or after maintenance). Therefore, PHMSA is not proposing changes to the current HMR requirements for special aircraft operations. Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft: The 2015-2016 Edition of the ICAO Technical Instructions adopted enhanced safety provisions for lithium batteries transported by aircraft, effective April 1, 2016. These amendments (1) prohibit the transport of lithium ion cells and batteries as cargo on passenger aircraft; (2) require all lithium ion cells and batteries to be shipped at not more than a 30 percent state of charge on cargo-only aircraft; and (3) limit the use of alternative provisions for small lithium cell or battery shipments under 49 CFR 173.185(c). PHMSA is considering adopting these amendments in a separate rulemaking. Further information is available in the docket for this rulemaking [PHMSA-2016- 0014]. Sterilization Devices Containing Nitrogen Tetroxide o
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