{"operation":"document","citation":"83 FR 52878","title":"Hazardous Materials: Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2018-10-18","effective_on":"2018-10-18","summary":"PHMSA, in consultation with the Federal Aviation","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2018-22114.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2018-22114.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2018-22114","source_url":"https://www.federalregister.gov/documents/2018/10/18/2018-22114/hazardous-materials-notification-of-the-pilot-in-command-and-response-to-air-related-petitions-for","body":"Federal Register, Volume 83 Issue 202 (Thursday, October 18, 2018) [Federal Register Volume 83, Number 202 (Thursday, October 18, 2018)] [Rules and Regulations] [Pages 52878-52900] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2018-22114] [[Page 52877]] Vol. 83 Thursday, No. 202 October 18, 2018 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 172 and 175 Hazardous Materials: Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking; Final Rule Federal Register / Vol. 83 , No. 202 / Thursday, October 18, 2018 / Rules and Regulations [[Page 52878]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 172 and 175 [Docket No. PHMSA-2015-0100 (HM-259)] RIN 2137-AF10 Hazardous Materials: Notification of the Pilot-in-Command and Response to Air Related Petitions for Rulemaking AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA, in consultation with the Federal Aviation Administration, issues this final rule to align the U.S. Hazardous Materials Regulations with current international standards for the air transportation of hazardous materials. These amendments revise certain special provisions, packaging requirements, information to the pilot- in-command requirements, and exceptions for passengers and crewmembers. In addition to facilitating harmonization with international standards, several of the amendments in this rule are responsive to petitions for rulemaking submitted by the regulated community. DATES: Effective date: This rule is effective October 18, 2018. Delayed compliance date: Unless otherwise specified, compliance with the amendments adopted in this final rule is required beginning October 18, 2019. FOR FURTHER INFORMATION CONTACT: Aaron Wiener, Office of Hazardous Materials Standards, International Standards, (202) 366-4579, 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. Background II. Comment Discussion A. Transportation by Air Intermediate Packaging Requirements for Certain Low and Medium Danger Hazardous Materials (P-1637) B. Quantity Limits for Portable Electronic Medical Devices Carried by Passengers, Crewmembers, and Air Operators (P-1649) C. Information to the Pilot-in-Command, Harmonization With the ICAO Technical Instructions (P-1487) D. Amendments to Package Inspection (P-1671) and Securing Requirements III. Section-by-Section Review IV. 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 13771 D. Executive Order 13132 E. Executive Order 13175 F. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures G. Paperwork Reduction Act H. Regulation Identifier Number (RIN) I. Unfunded Mandates Reform Act J. Environmental Assessment K. Privacy Act L. Executive Order 13609 and International Trade Analysis M. National Technology Transfer and Advancement Act I. Background On December 5, 2016, PHMSA (also ``we''), in consultation with the Federal Aviation Administration (FAA), published a notice of proposed rulemaking (NPRM) [Docket No. PHMSA-2015-0100 (HM-259); 81 FR 87510] to amend the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to align more closely with certain provisions of the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions). These amendments update miscellaneous regulatory requirements for hazardous materials offered for transportation, or transported, in commerce by aircraft. In addition, the NPRM proposed amendments in response to four petitions for rulemaking submitted by the regulated community. The petitions are included in the docket for this proceeding and are discussed at length in Section II (Comment Discussion) of this rulemaking. In the NPRM, the phrase ``notification to the pilot-in- command'' and the acronym ``NOTOC'' were used. In this final rule, consistent with the ICAO Technical Instructions, the phrase ``information to the pilot-in-command'' is used. II. Comment Discussion In response to the NPRM [81 FR 87510], PHMSA received comments from the following organizations: Air Line Pilots Association (ALPA) Airlines for America (A4A) Council on Safe Transportation of Hazardous Articles (COSTHA) Dangerous Goods Advisory Council (DGAC) United Parcel Service (UPS) See below for discussion of the comments received and PHMSA's determined action in this final rule. This section addresses comments made to proposals to revise the HMR based on petitions for rulemaking. Additional comments are addressed in Section III (Section-by-Section Review) of this rulemaking. A. Transportation by Air Intermediate Packaging Requirements for Certain Low and Medium Danger Hazardous Materials (P-1637) The DGAC petitioned PHMSA to remove the additional intermediate packaging requirements found in special provisions A3 and A6, see 49 CFR 172.102(b)(2), by deleting these special provisions and all references to them in the Hazardous Materials Table (HMT) in Sec. 172.101. See P-1637.\\1\\ Special provisions A3 and A6 apply to certain commodities as assigned in column (7) of the HMT when transported by aircraft: --------------------------------------------------------------------------- \\1\\ See https://www.regulations.gov/docket?D=PHMSA-2014-0094 . --------------------------------------------------------------------------- Special provision A3 states that if glass inner packagings are used for transportation of referenced commodities, they must be packed with absorbent material in tightly closed metal receptacles before being packed in outer packagings. Special provision A6 states that if plastic inner packagings are used for transportation of referenced commodities, they must be packed in tightly closed metal receptacles before being packed in outer packagings. The petitioner notes that the packaging requirements imposed by special provisions A3 and A6 are domestic provisions not found in the ICAO Technical Instructions and that maintaining these differences creates both a trade barrier to U.S. exports and a burden to the domestic market. The petitioner contends that the requirement for ``metal receptacles'' is overly restrictive and provides a competitive advantage to shippers in countries that allow these products to be shipped without additional intermediate packagings. The petitioner further notes that the following requirements in Sec. 173.27(d) and (e) of the HMR make special provisions A3 and A6 unnecessary: (1) When transported by air, inner packagings of Packing Group (PG) I materials currently assigned A3, A6, or both are already required to be packed in either a rigid and leakproof receptacle or an intermediate packaging containing sufficient absorbent material to absorb the entire contents of the inner [[Page 52879]] packaging before packing the inner packaging in its outer package; and (2) PG II and III commodities are already subject to secondary closure requirements. Therefore, the petitioner asks that the intermediate packaging requirements in special provisions A3 and A6 be removed. Section 173.27(d) of the HMR establishes the type of closure required for transportation of liquid hazardous materials by air. It states that the inner packaging for PG I liquid hazardous materials must have a secondary means of closure applied. The inner packaging for PG II or III liquid hazardous materials must have a secondary closure applied unless the secondary closure is impracticable. If the secondary closure is impracticable, the closure requirements for PG II and III liquids may be satisfied by securely closing the inner packaging and placing it in a leakproof liner or bag before placing the inner packaging in the outer packaging. Section 173.27(e) sets the absorbency requirements for PG I liquid hazardous materials of Classes 3, 4, or 8, or Divisions 5.1 or 6.1, when the materials are packaged in glass, earthenware, plastic, or metal inner packagings and offered for transport by air. It requires that inner packagings be packed in a rigid and leakproof receptacle or intermediate packaging that is sufficiently absorbent to absorb the entire contents of the inner packaging before the inner package is packed in the outer package. In the NPRM, PHMSA proposed to: (1) Amend special provision A3 in Sec. 172.102 to authorize rigid and leakproof receptacles for intermediate packaging; (2) remove references to special provision A3 from assigned PG I entries in the HMT; and (3) remove references to special provision A6 from assigned liquids in the HMT. PHMSA received positive feedback from commenters. Specifically, ALPA and UPS expressed support for this amendment. The DGAC also expressed support for the proposed amendment; however, consistent with their petition, DGAC continues to believe that the secondary closure requirements in Sec. 173.27(d) satisfy the provisions in A3, making A3 unnecessary for PG II and III materials. As stated in the NPRM, PHMSA agrees that current requirements in Sec. 173.27(d) and (e) make special provisions A3 and A6 unnecessarily redundant for liquid PG I materials. We also agree that the requirements in Sec. 173.27(d) for inner packagings to have a secondary means of closure or a leakproof liner or bag adequately address the hazards that special provision A6 was designed to mitigate for PG II and III materials. As commenters did not provide any supplemental information or justification for the removal of special provision A3 from the assigned PG II and III entries other than originally included in the petition, PHMSA maintains its position stated in the NPRM that the material of construction of the inner packaging referenced in special provision A3 (glass) necessitates an intermediate packaging to perform a containment function in the event an inner packaging breaks. Therefore, PHMSA is maintaining the intermediate packaging requirements for PG II and III materials in special provision A3; however, we are amending special provision A3 to authorize rigid and leakproof receptacles for use as intermediate packagings that are currently limited to metal construction. This will provide a wider range of intermediate packaging options to shippers of hazardous materials subject to special provision A3. Additionally, in the NPRM, PHMSA solicited comment on maintaining special provision A6 for currently assigned solid materials or whether revisions to the packaging provisions for these materials should be considered in a future rulemaking. Special provision A6 is currently assigned to four solid materials (UN Nos. 1326, 1390, 1889, and 3417) in the HMT. Unlike the liquids currently assigned special provision A6, these solid materials are not subject to the intermediate or secondary packaging provisions in Sec. 173.27. PHMSA received two comments in support of removing special provision A6 from the currently assigned solid materials. The DGAC commented that the special provision is unnecessary because these solid materials are not subject to the intermediate or secondary packaging requirements. UPS supports removing the special provision provided the packaging provisions in Sec. 173.27 are modified to require secondary or intermediate containment for these commodities. Based on the comments received, PHMSA will consider removing special provision A6 from the four solid materials in a future rulemaking. B. Quantity Limits for Portable Electronic Medical Devices Carried by Passengers, Crewmembers, and Air Operators (P-1649) Phillips Healthcare petitioned PHMSA to revise Sec. 175.10(a)(18)(i) to increase the quantity limits applicable to the transportation of portable medical electronic devices (e.g., automated external defibrillators (AED); nebulizers; continuous positive airway pressure (CPAP) devices containing lithium metal batteries; and spare batteries) carried on aircraft by passengers and crewmembers. See P- 1649.\\2\\ The current HMR requirements limit all lithium metal batteries carried on an aircraft by passengers or crewmembers for personal use to a lithium content of not more than 2 grams per battery. The ICAO Technical Instructions allow portable medical electronic devices containing lithium metal batteries and spare batteries for these devices to contain up to 8 grams of lithium content per battery to be carried by passengers with the approval of the operator. The petitioner stated: --------------------------------------------------------------------------- \\2\\ See https://www.regulations.gov/docket?D=PHMSA-2015-0107 . A global increase in air travel, as well as a growing aged population in many countries, makes it reasonable to assume that there will be a significant increase in older passengers and passengers with illness. An automated external defibrillator can --------------------------------------------------------------------------- make the difference between life and death during cardiac arrest. The petitioner further asserted that the current HMR requirements prohibit many people who need to travel with their portable medical electronic devices from doing so because the lithium content exceeds the amount allowed. In addition, the petitioner noted that increasing the quantity limits for portable medical electronic devices containing lithium metal batteries and spare batteries would be consistent with section 828 of the ``FAA Modernization and Reform Act of 2012'' (Pub. L. 112-98, 126 Stat. 133; Feb. 14, 2012),\\3\\ which prohibits the Secretary of Transportation from issuing or enforcing any regulation or other requirement regarding the air transportation of lithium cells or batteries if the requirement is more stringent than the requirements of the ICAO Technical Instructions. --------------------------------------------------------------------------- \\3\\ See http://www.gpo.gov/fdsys/pkg/CRPT-112hrpt381/pdf/CRPT-112hrpt381.pdf . --------------------------------------------------------------------------- In the NPRM, PHMSA proposed to amend Sec. 175.10(a)(18)(i) to authorize passengers and crewmembers to carry on board an aircraft lithium metal battery-powered portable medical electronic devices and two spare batteries for those devices exceeding 2 grams of lithium content per battery, but not exceeding 8 grams of lithium content per battery, with the approval of the operator. PHMSA received three comments from A4A, COSTHA, and DGAC in support of the proposed amendment. [[Page 52880]] A4A commented that the current inability of passengers and crewmembers to carry lithium metal battery-powered portable medical electronic devices exceeding 2 grams imposes unnecessary travel restrictions for passengers with medical needs requiring the equipment. DGAC commented that harmonization with the ICAO Technical Instructions on this issue will benefit the travelers by allowing them to carry life-saving medical devices. In contrast, ALPA provided comments that oppose the proposed amendment, stating that they do not support changing regulations based on the end use of batteries. Specifically, ALPA notes ``batteries installed in a medical device can be the same as used in a non-medical device . . . and are not inherently safer than non-medical devices.'' PHMSA agrees with ALPA that hazardous materials are not generally regulated by end-use application when offered as cargo, but rather on the hazard posed during transport. In addition, PHMSA does not dispute ALPA's assertion that lithium batteries used in medical devices present the same hazard as lithium batteries used in non-medical devices. However, the exceptions for passengers and crewmembers prescribed in Sec. 175.10 do not apply to cargo consignments. Instead, they are based on the need of individual passengers and crewmembers to carry personal items containing relatively small quantities of hazardous materials for common ``end-use'' items subject to certain conditions. In the 2011-2012 edition of the ICAO Technical Instructions, the 2-gram limit was expanded for medical devices only. Specifically, the limit was expanded to allow for medical devices known to exceed these limits, notably Automated External Defibrillators (AEDs), which typically had a lithium content between 4 and 8 grams.\\4\\ Therefore, PHMSA is adopting the amendment to Sec. 175.10(a)(18) as proposed in the NPRM consistent with the provisions of the ICAO Technical Instructions. --------------------------------------------------------------------------- \\4\\ See paragraph 5.4.10 of ICAO Dangerous Goods Panel Working Paper DGP/22-WP/100 (October 2009). --------------------------------------------------------------------------- In addition to the comments above, A4A and COSTHA recommended that PHMSA extend this allowance for lithium metal battery-powered portable medical electronic devices exceeding current regulatory limits to all portable electronic devices powered by lithium metal batteries. They stated that maintaining differences between medical and non-medical devices increases training costs, adds confusion, and the risk of potential inadvertent non-compliance by aircraft operators who elect to approve portable medical devices exceeding 2 grams of lithium content per battery, but not exceeding 8 grams of lithium content per battery. As this proposal was not presented in the December 5, 2016 NPRM, it is considered beyond the scope of the rulemaking and is not addressed in this final rule. C. Information to the Pilot-in-Command, Harmonization With the ICAO Technical Instructions (P-1487) UPS petitioned PHMSA to revise the information to the pilot-in- command requirements to match the ICAO Technical Instructions. The pilot-in-command must receive the information in order to appropriately consider the presence, amount, and location of hazardous materials onboard the aircraft in an emergency. See P-1487.\\5\\ This information, which also includes the hazard classification, proper shipping name, and packing group of the hazardous materials onboard the aircraft can help inform the decision-making of the pilot-in-command. If an in- flight emergency did occur, the pilot-in-command or the operator's ground personnel would need to convey information to air traffic control and/or emergency responders in order to support a safe and effective response. --------------------------------------------------------------------------- \\5\\ See https://www.regulations.gov/docket?D=PHMSA-2006-26159 . --------------------------------------------------------------------------- In its petition, UPS asked PHMSA to amend the domestic information to the pilot-in-command requirements in Sec. 175.33 to reduce what it considers extraneous information and more closely align the HMR with existing international practices. The petitioner stated that harmonization with more elements of the ICAO Technical Instructions' information to the pilot-in-command requirements will reduce the regulatory burden for operators, as well as the costs associated with training employees and contract personnel to two sets of standards. In the NPRM, PHMSA proposed adding each of the following requirements to the HMR: 1. The operator must provide to the flight dispatcher \\6\\ the same information as provided on the information to the pilot-in-command; --------------------------------------------------------------------------- \\6\\ For the purposes of this rulemaking the ``flight dispatcher'' refers to the personnel with responsibilities for operational control of the aircraft (e.g., the flight operations officer, flight dispatcher, or designated ground personnel responsible for flight operations). --------------------------------------------------------------------------- 2. The information must be provided to the pilot-in-command and flight dispatchers prior to an aircraft moving under its own power; 3. The air operator must retain the pilot-in-command's confirmation via signature or other appropriate indication that the required information was received; and 4. The person responsible for loading the aircraft must provide a signed confirmation or other form of indication that no damaged or leaking packages or packages showing evidence of damage or leakage were loaded on the aircraft. PHMSA received comments from A4A, ALPA, DGAC, COSTHA, and UPS providing general support for aligning the information to the pilot-in- command requirements with the ICAO Technical Instructions. UPS commented, ``This action will improve consistency between the HMR and ICAO, thereby promoting clarity of requirements, and overall compliance and safety in flight for operations around the world.'' DGAC commented, ``. . . Harmonizing the provisions of the HMR with those in the ICAO will provide for enhanced safety, minimize potential for errors, enhance training in only one set of harmonized requirements, and otherwise minimize costs of maintaining two systems of operations.'' These and other general changes discussed below will result in PHMSA harmonizing with the ICAO Technical Instructions in regards to the information required to be provided in the information to the pilot-in-command. Requirement that the operator provide the same information to the flight dispatcher that is required to be provided to the pilot- in-command. In an emergency, a flight dispatcher may be more readily able to communicate with air traffic control and emergency responders about the nature and location of hazardous materials onboard an aircraft than the pilot-in-command. Harmonizing with the ICAO Technical Instructions and requiring flight dispatchers to have the same information as the pilot-in-command regarding the nature, amounts, and locations of hazardous materials improves information sharing in an emergency situation. Incorporating this provision into the HMR is also relevant to the National Transportation Safety Board's (NTSB) Safety Recommendation A-11-042, which recommends that the FAA ``develop a method to quickly communicate information regarding the number of persons on board and the presence of hazardous materials to emergency responders when airport [[Page 52881]] emergency response or search and rescue is activated.'' \\7\\ --------------------------------------------------------------------------- \\7\\ See http://www.ntsb.gov/safety/safety-recs/recletters/A-11-039-047.pdf . --------------------------------------------------------------------------- Consistent with the ICAO Technical Instructions, operators are responsible to specify the personnel to be provided the information to the pilot-in-command in their operations manual and/or other appropriate manuals. The term ``provided'' covers the information to the pilot-in-command when made available in a handwritten, printed, or electronic format. Providing an additional and potentially quicker means for airport rescue and firefighting (ARFF) personnel to receive the information to the pilot-in-command underscores that the ARFF community is as much an intended consumer of the information as is the pilot-in-command. ARFF training in hazardous materials incidents is required under 14 CFR part 139, which specifies the FAA's requirements for certificated airports. PHMSA received comments from A4A, COSTHA, and UPS concerning use of the term ``written'' in the proposed paragraphs Sec. 175.33(a) and (b)(2). A4A and COSTHA commented that the ``accurate and legible written information'' language in proposed Sec. 175.33(a) and the ``copy of the written notification'' language in proposed Sec. 175.33(b)(2) do not support electronic notification method as air operators continue to move away from paper documents towards electronic systems for messaging and direct information upload to, and retrieval from, the cockpit. In their comments, A4A stated, ``Electronic storage and messaging allows the most up-to-date and accurate documentation to be retrieved by flight crews, dispatchers and ground personnel at any time, providing a safety enhancement in addition to considerable cost and environmental benefits.'' UPS commented that including the ``legible written'' language in the proposed Sec. 175.33(a) allows for the interpretation that a printed information to the pilot-in-command is required for issuance to the pilot-in-command, as well as having the unintended effect of requiring printed information to be furnished to a flight dispatcher or equivalent operator employee. UPS explained that large carrier operations such as theirs would face difficulties as ``information is readily available in other formats and the task of managing printed copies would be inefficient and contrary to technological advances.'' The three commenters provided similar alternative language removing the word ``written'' from paragraphs (a) and (b)(2). The intent of the NPRM was to more closely align the information to the pilot-in-command provisions in the HMR with those in the ICAO Technical Instructions. Consistent with the language in the NPRM, the current requirements in both regulations require that the operator of the aircraft provide the pilot-in-command with ``accurate and legible written information.'' Chapter 7;4.1.1 b) of the ICAO Technical Instructions requires that the aircraft operator provide personnel with responsibilities for operation control of the aircraft (e.g., flight dispatcher) with the same information required to be provided to the pilot-in-command. The ICAO requirement is followed by an example indicating that an operator may satisfy this requirement by providing the flight dispatcher with a copy of the written information provided to the pilot-in-command. However, the requirement in the ICAO Technical Instructions, while using the phrase ``copy of the written information'' as an example, does not specify the format or method in which the information is provided to the flight dispatcher, but rather only that the information is the same as provided to the pilot-in- command. PHMSA agrees that the term ``written'' may not be clear to everyone that the use of an electronic format for the information to the pilot- in-command is allowed. Based on the information provided by the three commenters, this final rule revises paragraphs (a) and (b)(2) to clarify that for the purposes of Sec. 175.33, ``written'' means in a handwritten, printed, or an electronic format. Therefore, the information provided to both the pilot-in-command and the flight dispatcher may be provided legibly in writing (e.g. handwritten, printed, or electronic format) provided all requirements of the section are met. We recognize the trend of providing the pilot-in-command and flight dispatchers with operational data through electronic means and that the use of electronic means to supplement the pilot-in-command with information about cargo, including hazardous materials, is consistent with current practices. The FAA recognizes that there are multiple electronic means that operators may use to provide information to their pilot-in-command and flight dispatchers. Requirement that the information to the pilot-in-command be provided to the pilot and flight dispatchers prior to an aircraft moving under its own power. The current HMR require the pilot-in- command to receive written information meeting the requirements in Sec. 175.33 as early as practicable before departure of the aircraft. Consistent with the ICAO Technical Instructions, PHMSA believes that this information should be provided to both the pilot-in-command and flight dispatchers prior to the aircraft moving under its own power. The pilot-in-command should not be burdened with additional information or processes during taxiing and final preparations for takeoff. This change would also allow the pilot-in-command additional time to address any safety concerns identified after a review of the information before taxiing. For example, the pilot-in-command will be more likely to have the opportunity to physically inspect (e.g., packages, paperwork, etc.), ask questions, or otherwise act on the information if they receive the information prior to the aircraft moving. Requirement that the air operator obtains and retains a confirmation (e.g., a signed confirmation from the pilot-in-command or notation via an operator's computer system) that the information was received by the pilot-in-command. The current HMR require the information to be provided to the pilot-in-command by the operator and for the operator to maintain a record of the information to the pilot- in-command for 90 days, but there is no requirement for the pilot-in- command to indicate receipt of the information. To be consistent with the ICAO Technical Instructions, PHMSA is requiring the operator to obtain and retain documentation of the pilot-in-command's receipt of the information. Requirement for the information provided to the pilot-in- command to have a signed confirmation or some other indication from the person responsible for loading the aircraft that no evidence of damaged or leaking packages were loaded on the aircraft. The current HMR require a confirmation that no damaged or leaking packages were loaded on board an aircraft, but there is no requirement for a signature or other means of verification from the person responsible for loading the aircraft. The requirement for the information provided to the pilot-in- command to have a signed confirmation or other indication from the person responsible for loading ensures that there is no evidence of damage to or leakage from the packages or evidence of leakage from the unit load device loaded on an aircraft which provides for a more accountable safety system. General harmonization with the ICAO Technical Instructions in regards to information required to be provided in the information to the pilot-in- [[Page 52882]] command associated with (and linked to) requirements for shipping papers. The current HMR require the additional description requirements of Sec. Sec. 172.202 and 172.203 to be provided in the information to the pilot-in-command. These additional information requirements necessitate the inclusion of items such as descriptions of the physical or chemical form of radioactive materials, an indication that the materials being transported are packaged under limited quantity exceptions, an indication that marine pollutants are present, etc. By aligning with the ICAO Technical Instructions, PHMSA believes that the removal of additional description requirements from the information to the pilot-in-command will result in decreased complexity and training costs for operators without negatively impacting safety. In the NPRM, we invited comment from the ARFF community pertaining to the effect this proposed rule would have had on past incident or accident responses; however, as no comments were received, we are removing the additional description requirements from the information to the pilot- in-command requirements as proposed. The current HMR contain a requirement that the information to the pilot-in-command prepared in accordance with the ICAO Technical Instructions must also include any additional elements required to be shown on shipping papers by subpart C of part 171 of this subchapter. The additional elements currently required are: An indication of the ``EX Number'' for Division 1.4G safety devices; an indication of ``RQ'' and technical names if applicable for hazardous substances; an indication that the hazardous material is a ``Waste'' for hazardous wastes; and the inclusion of the words ``Poison-Inhalation Hazard'' or ``Toxic-Inhalation Hazard'' and the words ``Zone A,'' ``Zone B,'' ``Zone C,'' or ``Zone D'' for gases, or ``Zone A'' or ``Zone B'' for liquids, as appropriate for Division 2.3 materials meeting the definition of a material poisonous by inhalation. PHMSA is removing the requirement for the information to the pilot-in-command made in accordance with the ICAO Technical Instructions to include these additional elements. This information will still be required on shipping papers. General harmonization between the HMR information to the pilot-in- command requirements and those found in the ICAO Technical Instructions ensures consistency for operators subject to both regulatory systems, thus reducing the cost of complying with two different sets of standards. However, the HMR will continue to require that the date of the flight be included on the information to the pilot-in-command, while the current ICAO Technical Instructions do not. Maintaining the flight date adds another safety control to ensure the pilot-in-command has the correct form. As many operators already include the date as a part of their information provided to the pilot-in-command, this amendment will not create an undue administrative burden. PHMSA received one comment from UPS providing support for maintaining the flight date on the information to the pilot-in-command. The ICAO Dangerous Goods Panel (DGP) took action in October 2016 to amend the ICAO Technical Instructions to include the flight date as one of the required fields on the information to the pilot-in-command. This change will align with the HMR and is expected to be reflected in the 2019- 2020 ICAO Technical Instructions. In the NPRM, PHMSA proposed maintaining the existing requirement that a hazardous material carried under the terms of a special permit must be indicated on the information to the pilot-in-command. PHMSA received a comment from UPS stating that the existing term ``special permit'' is too focused on U.S. regulations. They note that parallel ICAO provision, in Part 7; Section 4.1.1.1 j) refers to a requirement to include, ``where applicable, an indication that the dangerous goods are being carried under a State exemption.'' UPS suggested that the proposed language should be broadened to include a reference to an ``equivalent document issued by the appropriate authority of another country,'' thereby reducing potential variation from the ICAO requirement. PHMSA agrees. Therefore, consistent with the ICAO Technical Instructions, this final rule adds ``or under a State exemption as prescribed in the ICAO Technical Instructions'' in addition to ``special permit.'' ICAO defines ``exemption'' as being equivalent to a special permit under the HMR. An ``exemption'' does not include approvals, which are not required to be indicated on the information to the pilot-in-command. In their comments, A4A and COSTHA stated that carriers do not prepare the information to the pilot-in-command when the hazardous material does not require a shipping paper, noting that the HMR do not require a shipping paper for lithium cells or batteries prepared in accordance with Sec. 173.185(c) or the corresponding Section II of ICAO Packing Instructions (PI) 965-970. The commenters noted that part 7;4.1.11, Table 7-9 provides a list of dangerous goods not required to appear in the information to the pilot-in-command. The list includes entries for lithium batteries consigned under the entries UN3090, UN3091, UN3480, and UN3481 when meeting the requirements of Section II of PI 965-970. The commenters noted that the HMR do not have a corresponding exception for these same materials prepared even though a shipping paper is not required. Both commenters suggested incorporating the ICAO provisions by either adding Table 7-9 into Sec. 175.33 or by adding a specific exception stating that lithium batteries prepared in accordance with Sec. 173.185(c) are not required to appear on the information to the pilot-in-command. COSTHA suggested adding exceptions in Sec. 175.33 for all materials listed in Table 7-9 of the ICAO Technical Instructions such as excepted quantities and ``UN3373 and Biological substance, Category B'' among others. PHMSA agrees that in instances when a shipping paper is not required, the information for that material is generally not required to appear on the information to the pilot-in-command either. Because a shipping paper contains the information from which the elements of the information to the pilot-in-command are derived, it is impracticable to prepare the information for materials not requiring a shipping paper. We also agree that the HMR do not have a clear exception from the information to the pilot-in-command requirement for lithium batteries prepared in accordance with Sec. 173.185(c), which corresponds with Section II of ICAO PI 965-970. Other materials listed in Table 7-9, such as those offered in excepted quantities (Sec. 173.4a), and ``UN3373 and Biological substance, Category B'' (Sec. 173.199) are sufficiently addressed in their relevant section of the HMR, with an indication that the materials are not otherwise subject to the requirements of the subchapter, to include the requirements of Sec. 175.33, if the applicable conditions are met. Therefore, this final rule clarifies in Sec. 175.33(a)(13) that lithium batteries prepared in accordance with Sec. 173.185(c) are not required to appear on the information to the pilot-in-command, which corresponds with Section II of the applicable ICAO packing instruction. D. Amendments to Package Inspection (P-1671) and Securing Requirements Labelmaster Services petitioned PHMSA to amend Sec. 175.30(c)(1) by removing language prohibiting any package, outside container, or overpack [[Page 52883]] containing hazardous materials from being transported on an aircraft if it has holes. See P-1671.\\8\\ The petitioner noted that operators and freight forwarders have declined to transport packages with minor abrasions, tears, dents, cuts, small holes, or other minor damage from normal conditions of transportation and handling. Even where these examples of minor damage or holes did not compromise the packaging's integrity, operators and freight forwarders declined to transport them on the basis of Sec. 175.30(c)(1). --------------------------------------------------------------------------- \\8\\ See https://www.regulations.gov/docket?D=PHMSA-2015-0281 . --------------------------------------------------------------------------- PHMSA believes the current restriction prohibiting acceptance of any of these containment methods with holes to be overly prescriptive, especially as the paramount safety requirement is that there must not be any indication that the integrity of the containment method has been compromised. In the NPRM, consistent with the ICAO Technical Instructions, PHMSA proposed to amend Sec. 175.30(c)(1) to remove language prohibiting packages or overpacks containing hazardous materials from being transported on an aircraft simply due to the presence of holes when the holes do not compromise the integrity of the containment device. PHMSA received comments from A4A, COSTHA, DGAC, and UPS in response to the proposed revision. The DGAC commented in support of the proposed revision as it enhances harmonization and does not compromise safety. UPS commented in support of the proposed revision, noting that the risk of transporting such packages aboard aircraft would not be elevated, and was also supportive of the NPRM preamble language, stating operators are ultimately responsible for the decision to accept such a package for transportation. In their comments, A4A and COSTHA provided support for the NPRM preamble language, stating that operators may cont","truncated":true,"body_characters":135991}