{"operation":"document","citation":"85 FR 27810","title":"Hazardous Materials: Harmonization With International Standards","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2020-05-11","effective_on":"2020-05-11","summary":"PHMSA is issuing this final rule to amend the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the HMR with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods--Model Regulations. Additionally, PHMSA is adopting several amendments to the HMR that would allow for increased alignment with the Transport Canada, Transportation of Dangerous Goods Regulations.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2020-06205.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2020-06205.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2020-06205","source_url":"https://www.federalregister.gov/documents/2020/05/11/2020-06205/hazardous-materials-harmonization-with-international-standards","body":"Federal Register, Volume 85 Issue 91 (Monday, May 11, 2020) [Federal Register Volume 85, Number 91 (Monday, May 11, 2020)] [Rules and Regulations] [Pages 27810-27901] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2020-06205] [[Page 27809]] Vol. 85 Monday, No. 91 May 11, 2020 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, 174, 175, 176, 178 and 180 Hazardous Materials: Harmonization With International Standards; Final Rule Federal Register / Vol. 85, No. 91 / Monday, May 11, 2020 / Rules and Regulations [[Page 27810]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 174, 175, 176, 178 and 180 [Docket No. PHMSA-2017-0108 (HM-215O)] RIN 2137-AF32 Hazardous Materials: Harmonization With International Standards AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA is issuing this final rule to amend the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. These revisions are necessary to harmonize the HMR with recent changes made to the International Maritime Dangerous Goods Code, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air, and the United Nations Recommendations on the Transport of Dangerous Goods--Model Regulations. Additionally, PHMSA is adopting several amendments to the HMR that would allow for increased alignment with the Transport Canada, Transportation of Dangerous Goods Regulations. DATES: Effective date: This rule is effective May 11, 2020, except for instruction 17, which is effective January 2, 2023. Voluntary compliance date: January 1, 2019. Delayed compliance date: May 10, 2021. Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register as of May 11, 2020. FOR FURTHER INFORMATION CONTACT: Steven Webb, International Program or Aaron Wiener, International Program, telephone (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, East Building, 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. Incorporation by Reference Discussion Under 1 CFR part 51 IV. NPRM Comment Discussion V. Section-by-Section Review VI. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Final Rule B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13771 D. Executive Order 13132 E. Executive Order 13175 F. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures G. Paperwork Reduction Act H. Regulation Identifier Number (RIN) I. Unfunded Mandates Reform Act of 1995 J. Environment Assessment K. Privacy Act L. International Trade Analysis and Executive Order 13609 M. National Technology Transfer and Advancement Act List of Subjects I. Executive Summary The Pipeline and Hazardous Materials Safety Administration (PHMSA) is amending the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) to maintain alignment with international regulations and standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. This rulemaking project is part of PHMSA's ongoing biennial process to harmonize the HMR with international regulations and standards. As part of this biennial process, PHMSA is amending the HMR to incorporate changes from the 20th Revised Edition of the UN Model Regulations, Amendment 39-18 of the International Maritime Dangerous Goods (IMDG) Code, and the 2019-2020 International Civil Aviation Organization (ICAO) Technical Instructions, which became effective January 1, 2019.\\1\\ Notable amendments to the HMR in this final rule include the following: --------------------------------------------------------------------------- \\1\\ Amendment 39-18 to the IMDG Code may be voluntarily applied on January 1, 2019; however, the previous amendment remained effective through December 31, 2019. --------------------------------------------------------------------------- Incorporation by Reference: PHMSA incorporates by reference the newest versions of various international hazardous materials (hazmat) standards, including: The 2019-2020 Edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions); Amendment 39-18 to the International Maritime Dangerous Goods Code (IMDG Code); the 20th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (UN Model Regulations); Amendment 1 to the 6th Revised Edition of the UN Manual of Tests and Criteria; and the 7th Revised Edition of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). Additionally, we are updating our incorporation by reference of the Transport Canada, Transportation of Dangerous Goods (TDG) Regulations to include: SOR/2016-95, published June 1, 2016; SOR/2017-137, published July 12, 2017; and SOR/2017-253, published December 13, 2017. Finally, PHMSA is adopting various updated International Organization for Standardization (ISO) standards. Hazardous Materials Table: PHMSA amends the Hazardous Materials Table (HMT; Sec. 172.101) consistent with recent changes in the Dangerous Goods List of the UN Model Regulations, the IMDG Code, and the ICAO Technical Instructions. Specifically, PHMSA is making amendments to the HMT to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, and passenger and cargo aircraft maximum quantity limits. Articles Containing Dangerous Goods: PHMSA adds a classification system for articles containing hazardous materials that do not already have a proper shipping name. This addresses situations in which hazardous materials or hazardous materials residues are present in articles, and authorizes a safe method to transport articles that may be too large to fit into typical packages. Lithium Battery Test Summary: PHMSA adds requirements regarding lithium battery test summaries. The HMR requires lithium battery manufacturers to subject lithium batteries and cells to appropriate UN design tests to ensure they are classified correctly for transport, and to develop records of successful test completion, called a test report. The test summary includes a standardized set of elements that provide traceability and accountability, thereby ensuring that lithium cell and battery designs offered for transport contain specific information on the required UN tests. The test summary must be made available to subsequent distributors. Baggage Equipped with Lithium Batteries: PHMSA is amending the aircraft passenger provisions for carriage [[Page 27811]] of baggage equipped with lithium batteries intended to power features such as location tracking, battery charging, digital weighing, or motors (sometimes referred to as ``smart luggage''). Specifically, baggage equipped with a lithium battery or batteries will be required to be carried in the cabin of the aircraft unless the battery or batteries are removed. This restriction in checked baggage does not apply to baggage containing lithium metal batteries with a lithium content not exceeding 0.3 grams, or lithium ion batteries with a Watt- hour (Wh) rating not exceeding 2.7 Wh. Segregation of Lithium Batteries from Specific Hazardous Materials: PHMSA is adding requirements to segregate lithium cells and batteries from certain other hazardous materials, notably flammable liquids, when offered for transport or transported on aircraft. PHMSA is taking this action to promote consistency with the ICAO Technical Instructions and to implement a National Transportation Safety Board (NTSB) Safety Recommendation (A-16-001) stemming from the investigation of the July 28, 2011, in-flight fire and crash of Asiana Airlines Flight 991 that resulted in the loss of the aircraft and crew. The investigation report cited the flammable materials and lithium ion batteries that were loaded together in either the same or adjacent pallets as a contributing factor to the accident. Alternative Criteria for Classification of Corrosive Materials: PHMSA is including non-testing alternatives for classifying corrosive mixtures using existing data on its chemical properties. Currently, the HMR require offerors to classify Class 8 corrosive material and assign a packing group based on test data. The HMR authorizes a skin corrosion test and various in vitro test methods that do not involve animal testing. However, data obtained from testing is currently the only data acceptable for classification and assigning a packing group. The alternatives added in this final rule afford offerors the ability to make a classification and packing group assignment without the need to conduct physical tests. Provisions for Polymerizing Substances: PHMSA is extending the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2023. This additional time will allow PHMSA to conduct research and analyze comments and data concerning the issue submitted to the docket for this rulemaking, to have a more comprehensive understanding of polymerizing substances and further consider the most appropriate transport provisions for these materials. II. Background Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.) directs PHMSA to participate in relevant international standard-setting bodies and promotes consistency of the HMR with international transport standards to the extent practicable. Federal hazmat law permits PHMSA to depart from international standards where a more stringent standard or requirement is necessary in the public interest or if a different standard or requirement is unnecessary or unsafe. However, Federal hazmat law otherwise encourages domestic and international harmonization (see 49 U.S.C. 5120). Harmonization facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements for transportation of hazardous materials. Safety is enhanced by creating a uniform framework for compliance. As the volume of hazardous materials transported in international commerce continues to grow, harmonization is increasingly important. PHMSA published a notice of proposed rulemaking (NPRM) under Docket HM-215O [83 FR 60970 (November 27, 2018)] to incorporate various amendments to harmonize the HMR with recent changes to the IMDG Code, ICAO Technical Instructions, and the United Nations Recommendations on the Transport of Dangerous Goods--Model Regulations (UN Model Regulations). When considering alignment of the HMR with international standards, PHMSA reviews and evaluates each amendment on its own merit, on the basis of its overall impact on transportation safety, and on the basis of the economic implications associated with its adoption into the HMR. PHMSA's goal is to harmonize without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community. III. Incorporation by Reference Discussion Under 1 CFR Part 51 The UN Model Regulations, Manual of Tests and Criteria, and GHS, as well as all of the Transport Canada Clear Language Amendments, are free and easily accessible to the public on the internet, with access provided through the parent organization websites. The ICAO Technical Instructions, IMDG Code, and all ISO references are available for interested parties to purchase either print or electronic versions through the parent organization websites. The specific standards are discussed in greater detail in the section-by-section review (see Sec. 171.7). IV. NPRM Comment Discussion In response to the November 27, 2018 NPRM [83 FR 60970], PHMSA received comments from the following organizations and individuals: Air Line Pilots Association, International (ALPA) Alaska Airlines Amazon American Coatings Association (ACA) Anonymous Anonymous 2 Association of American Railroads and the American Short Line and Regional Railroad Association (AAR and ASLRRA) Association of Hazmat Shippers (AHS) The Basic Acrylic Monomer Manufacturers, Inc. (BAMM) Compressed Gas Association (CGA) Council on Safe Transportation of Hazardous Articles (COSTHA) Dangerous Goods Advisory Council (DGAC) The Dow Chemical Company (Dow) Frits Wybenga Gases and Welding Distributors Association Institute of Makers of Explosives (IME) Interested Parties for Hazardous Materials Transportation (Interested Parties) International Air Transport Association (IATA) International Vessel Operators Dangerous Goods Association (IVODGA) Yvonne Keller Medical Device Battery Transport Council (MDBTC) National Retail Federation (NRF) The Rechargeable Battery Association (PRBA) Reusable Industrial Packaging Association (RIPA) Transport Canada (TC) U.S. Chamber of Commerce (Chamber) Utility Solid Waste Activities Group (USWAG) PHMSA received comments from the ACA, CGA, ALPA, IATA, DGAC, and the Chamber all providing general support for harmonization with international standards and additional support from CGA for the incorporation by reference of the proposed ISO standards. In addition, PHSMA received a comment from IME in support of updating the edition of the GHS that is incorporated by reference. [[Page 27812]] Comments concerning the issuance of a direct final rule, the sunset provisions for polymerizing substances, compliance and applicability dates for the test summary, fuel gas containment systems, damaged and defective lithium batteries, competency based training, and safety devices in dedicated handling devices are discussed below. PHMSA concluded that comments made by Anonymous 2, portions of comments made by MDBTC concerning ``receipted for in one lot,'' in Sec. 173.185,\\2\\ portions of comments made by Alaska Airlines concerning air transport provisions for fish meal, and portions of comments made by IME concerning amendments to packaging instruction US 1 in Sec. 173.62,\\3\\ are outside the scope of this rulemaking. Therefore, PHMSA did not address these comments in this rulemaking. All other comments specific to the respective HMR sections are addressed in the ``Section-by- Section Review'' of this document.\\4\\ --------------------------------------------------------------------------- \\2\\ Section 173.185 defines consignment to mean ``one or more packages of hazardous materials accepted by an operator from one shipper at one time and at one address, receipted for in one lot and moving to one consignee at one destination address.'' \\3\\ Section 173.62 establishes specific packing requirements for explosives. US 1 is a packing instruction that is ``particular to the United States and not found in applicable international regulations.'' \\4\\ Comments which were outside the scope of this rulemaking are not addressed in this final rule. --------------------------------------------------------------------------- Delays in Issuing the Final Rule PHMSA received a comment from AAR and ASLRRA that indicated the delay associated with publication of a final rule ``presents immediate challenges for shippers and carriers involved in the transportation of hazardous materials across U.S. borders'' and suggested alternative ways for proceeding with the rulemaking. PHMSA recognizes that a delay in publication of this final rule may have presented challenges for shippers and carriers. To mitigate these challenges, on December 18, 2018, PHMSA issued a Notice of Enforcement Policy Regarding International Standards authorizing the use of the applicable international standards.\\5\\ The notice explained that PHMSA would not take enforcement action against any offeror or carrier using the updated standards when all or part of the transportation is by air with respect to the ICAO TI, or all or part of the transportation is by vessel with respect to the IMDG code. --------------------------------------------------------------------------- \\5\\ https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/international-program/70251/notice-enforcement-policy-international-standards.pdf . --------------------------------------------------------------------------- Sunset Provisions for Polymerizing Substances In the March 30, 2017, final rule [HM-215N; 82 FR 15796], PHMSA added four new Division 4.1 entries for polymerizing substances to the HMT, and added defining criteria, authorized packagings, and safety requirements including, but not limited to, stabilization methods and operational controls into the HMR. In this prior rulemaking, PHMSA indicated that these changes would be in effect until January 2, 2019. During the interim time period between publication of that final rule and January 2, 2019, PHMSA indicated it would review and research the implications of the polymerizing substance amendments, and readdress the issue in the next international harmonization rulemaking. In the HM-215O NPRM, PHMSA proposed to extend the sunset dates for provisions concerning the transportation of polymerizing substances from January 2, 2019 to January 2, 2021 as the research is still in progress. PHMSA received comments from BAMM, DGAC, and Dow expressing support for the extension of the sunset provisions proposed in the HM-215O NPRM. These commenters also requested that PHMSA harmonize the requirements for temperature control of polymerizing substances in portable tanks and testing requirements for these substances intended to be carried in portable tanks or intermediate bulk containers (IBCs) with those found in the transport international standards while awaiting the results of a currently underway research project. DGAC and Dow requested that the previously adopted changes to Sec. 173.21 in the March 30, 2017, final rule [HM-215N; 82 FR 15796], requiring temperature control at 50 [deg]C for portable tanks carrying polymerizing substances be harmonized with the internationally adopted 45 [deg]C, while PHMSA awaits the outcome of ongoing research into polymerizing substances. BAMM, DGAC, and Dow requested that PHMSA not require polymerizing substances intended to be transported in portable tanks or IBCs to undergo the Test Series E heating under confinement testing. The commenters requested that the provisions for polymerizing substances be harmonized with those found in the applicable international standards while PHMSA awaits the outcome of ongoing research into polymerizing substances. DGAC and Dow commented that differing domestic and international temperature control thresholds before temperature control is required would result in materials with a self-accelerating polymerization temperature (SAPT) greater than 45 [deg]C and less than or equal to 50 [deg]C being subject to temperature control when transported in portable tanks in the United States, but not elsewhere in the world. BAMM, DGAC, and Dow expressed their view that because the recommended test methods for Test Series E were not specifically designed for polymerizing substances that the test results would be meaningless. The commenters did not raise any new reasons for not adopting the provisions beyond those previously addressed in the March 30, 2017 final rule [HM-215N; 82 FR 15796]. PHMSA understands the concerns raised by the commenters, but to ensure the safe and efficient transportation of these commodities, PHMSA is adopting the provisions as proposed in the NPRM and codified in the March 30, 2017, final rule for the reasons that were previously outlined [HM-215N; 82 FR 15796, 15798-99]. In brief, the rationale for adopting the 50 [deg]C SAPT threshold before temperature control is required for transport in portable tanks is primarily that 50 [deg]C is the maximum temperature reasonable expected to be experienced by any selfreactive, organic peroxide, and/or polymerizing substance. The rationale for requiring Test Series E testing for polymerizing substances intended to be transported in portable tanks or IBC is that Test Series E (or an equivalent performance measure) provides information on how the material behaves when heated under confinement. For additional discussion of these issues refer to the March 30, 2017 final rule [HM- 215N; 82 FR 15796, 15798-99]. To accommodate additional potential delays in completion and reviewing the results of the research project on polymerizing substances, PHMSA is extending the date for the sunset provisions for an additional two years beyond the date proposed in the NPRM. The new sunset date for transport provisions concerning polymerizing substances is January 2, 2023. Lithium Battery Test Summary In the NPRM, PHMSA proposed the inclusion of lithium battery test summary requirements. The test summary includes a standardized set of elements that provide traceability and accountability to ensure that lithium cell and battery designs offered for transport contain specific information on the required UN tests. PHMSA proposed that manufacturers and subsequent distributers of lithium cells and batteries manufactured after June 30, 2003 must make test summaries available to others in the supply chain. [[Page 27813]] In the international standards, and as proposed in the NPRM, the lithium battery test summary requirements would have an effective date of January 1, 2020. In response to the comments received, in this final rule, PHMSA is providing additonal background on the test summary. The development of the test summary by the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods spanned several years. The work was the outgrowth of an industry-identified problem concerning lack of availability of information needed to verify compliance and facilitate transportation. Specifically, the inability of shippers to access documentation verifying that lithium cells and batteries have successfully passed the tests prescribed in part III, sub-section 38.3 of the UN Manual of Tests and Criteria. In 2014, a trade association representing major rechargeable battery manufacturers relayed to the UN Sub-Committee that shippers were experiencing difficulties in verifying compliance with the UN 38.3 tests (See UN/SCETDG/46/INF.11, paragraph 15).\\6\\ It was the industry group's suggestion to work within the UN Sub-Committee towards a summary format that would facilitate making available essential compliance information to all concerned. This suggestion led the UN Sub-Committee over the next two years in cooperation with government and industry stakeholders to develop a standardized list of information to be included in a test summary (see ST/SG/AC.10/C.3/100, paragraph 56).\\7\\ PHMSA received several comments, which are discussed throughout this rulemaking and the associated RIA, concerning the potential costs of the test summary provisions. While providing no specific cost estimates, these commenters indicated that they believed implementing the test summary provisions as proposed would be more burdensome than PHMSA estimated. In this final rule, PHMSA is adopting changes to the compliance date, the implementation date, and several other variatons from the NPRM proposals that will reduce the burden on lithium cell and battery manufacturers and distributors. --------------------------------------------------------------------------- \\6\\ https://www.unece.org/fileadmin/DAM/trans/doc/2014/dgac10c3/UN-SCETDG-46-INF11e.pdf . \\7\\ https://www.unece.org/fileadmin/DAM/trans/doc/2016/dgac10c3/ST-SG-AC10-C3-100e.pdf . --------------------------------------------------------------------------- Compliance Date PHMSA received comments from Alaska Airlines, Amazon, Chamber, COSTHA, DGAC, MDBTC, NRF, PRBA, and an anonymous commenter concerning the proposed effective date of January 1, 2020 for the proposed test summary requirements. These commenters requested that PHMSA provide additional time to comply. Alaska Airlines commented that they hope the test summary requirements can be implemented by January 1, 2021. PRBA, Amazon, MDBTC, the Chamber, and NRF indicated that PHMSA should allow manufacturers and subsequent distributors until January 1, 2022 to comply with the test summary requirements. The DGAC recommended a one- year transition period following publication of the final rule. The commenters opined that the proposed compliance deadline of January 1, 2020 would not allow sufficient time for U.S. manufacturers and subsequent distributors of these products to establish procedures for preparing and securing test summaries. In their comments, NRF commented that it will take significant time for manufacturers and shippers, especially small companies, to develop and prepare the test summaries for their products. NRF opined that a longer implementation time will give companies enough time to identify, develop, and prepare the materials that are needed for compliance. PHMSA agrees that additional time may be required to fully integrate systems, processes, and policies for preparing test summaries. The additional time can be used to help ensure the availability of test summaries and to prepare procedures for making test summaries available to subsequent distributors. In this final rule, the required compliance date for both the creation of and subsequent distribution upon request for test summaries is January 1, 2022. COSTHA noted that using the same implementation date for both battery manufacturers and distributors presents the possibility that manufacturers could wait until December 31, 2021 to prepare the documents and distributors would not have any additional time to receive and make available the test summaries throughout the supply chain. COSTHA requested a staggered implementation date that would allow distributors an additional year to comply. PHMSA believes that the extended transition period for domestic implementation of the test summary requirements (two years after the requirements enter the IMDG Code and ICAO Technical Instructions) will mitigate this concern over shared implementation dates for shippers and distributors by providing additional time for battery distributers to work with manufacturers to acquire the necessary information and establish mechanisms for further distribution. Applicability Date PHMSA received comments from PRBA, NRF, DGAC, MDBTC, Amazon, and the Chamber requesting that PHMSA reconsider which lithium batteries require a test summary be created and made available. PHMSA proposed a requirement that a test summary be made available for all lithium cells and batteries manufactured after June 30, 2003, and that manufacturers and subsequent distributers of lithium cells and batteries manufactured after June 30, 2003, must make this information available to others in the supply chain. PRBA commented that ``[i]t is not practicable to require the post- hoc generation of a Test Summary for batteries that were manufactured as far back as 2003,'' and asked that PHMSA adopt a date that requires the creation of test summaries and subsequent distribution for only batteries and cells manufactured after the effective date of the provisions. In conjunction with its request to extend the compliance date for the test summary generally to January 1, 2022, PRBA requests that only batteries and cells manufactured after this date require test summaries and subsequent distribution. The Chamber also requested that the applicability be limited to lithium cells and batteries manufactured after January 1, 2022 noting that ``there may be times when distributors are shipping older battery designs that were manufactured by a company that is no longer in business. In instances like this, it may be impossible for shippers to acquire the necessary information for the TS.'' The NRF and Amazon commented with similar requests to limit the scope of batteries subject to the test summary by using the effective date of the requirement which would then apply the requirements to cells and batteries currently in production and those made going forward. The NRF noted that it would be incredibly difficult and burdensome to locate a test certification and create a test summary for batteries dating back up to 17 years. MDBTC supported requiring test summary documents for only lithium cells and batteries manufactured after January 1, 2014. PHMSA recognizes the comments noting the potential difficulty in obtaining test summaries for older batteries, particularly in cases where a manufacturer may no longer be in business or has merged with another company. Therefore, PHMSA is applying the test summary requirements [[Page 27814]] only to cells and batteries manufactured after January 1, 2008. This date is the effective date of the final rule that required all lithium batteries (including small batteries) be of the type proven to meet the criteria in part III, sub-section 38.3 of the UN Manual of Tests and Criteria (``Hazardous Materials; Transportation of Lithium Batteries,'' August 9, 2007, 72 FR 44929). As of January 1, 2008, all batteries transported in accordance with the HMR should have valid test reports that will help facilitate the creation of and availability of test summaries. PHMSA believes that amending the scope of cells and batteries that require a test summary to those manufactured after January 1, 2008 will lead to fewer instances where insufficient information will be available to create the required test summary while still capturing the majority of batteries and cells being offered for transportation. PHMSA reiterates the importance of the test summary in providing confirmation to users that the battery is from a legitimate and compliant source and allowing those in the transport chain to more easily identify non-counterfeit products. Additionally, PHMSA maintains that the creation and subsequent distribution of test summaries for lithium batteries provides an enhanced mechanism for shippers to meet their existing requirement to only offer lithium cells and batteries of a type proven to meet the criteria in part III, sub-section 38.3 of the UN Manual of Tests and Criteria. The availability of specific information in the test summary document will enhance the users' ability to obtain the information needed to ensure they are receiving, and potentially reoffering for transportation, a battery that is of a tested and approved type. Fuel Gas Containment Systems In the NPRM, PHMSA discussed amendments to international standards that are not being considered for adoption. As stated in the NPRM, the 20th Revised Edition to the UN Model Regulations added a special provision to allow for the transportation of vehicle fuel gas containment systems containing certain gases, such as compressed natural gas and liquified petroleum gas, transported for disposal, recycling, repair, inspection, maintenance, or from where they are manufactured to a vehicle assembly plant. The provisions allow for gaseous fuels to be transported in fuel tanks designed for vehicles meeting certain European automotive standards rather than specification pressure receptacles. In the NPRM, PHMSA explained that the vehicle specification pressure vessels that are incorporated and authorized by the UN Model Regulations do not apply to U.S. domestic transportation as most of the fuel gas containment standards that are addressed in the UN Model Regulations are more appropriate for European road and rail regulations. PHMSA solicited comments on the fuel gas containment systems amendment in the UN Model Regulations and asked whether it would benefit industry to include a similar amendment in the HMR. PHMSA received a comment from COSTHA on the decision not to include provisions for fuel gas containment decisions. The commenter disagreed with the view that the amendments are more appropriate for European regulations. COSTHA commented on the benefits of adopting the provisions into the HMR. COSTHA opined that when fuel tanks are removed from the vehicle and offered for transportation they are constructed to meet motor vehicle standards, but the tanks will not be permitted for transport of gaseous fuels under the HMR without the gas being completely removed from the tank. COSTHA further commented that the gas removal process has the potential to lead to dangerous situations at repair shops, dealers, and disposal locations not equipped to properly empty these fuel tanks. COSTHA notes that U.S. automobile manufacturers often use UN or Global Technical Regulations to demonstrate compliance with equivalent Federal Motor Vehicle Safety Standards (FMVSS).\\8\\ In addition, COSTHA supports referencing applicable FMVSS in the HMR to facilitate U.S. domestic gas containment system transport. --------------------------------------------------------------------------- \\8\\ National Highway Transportation Safety Administration issues FMVSS. The regulations establishing the FMVSS are primarily found at 49 CFR part 571. https://www.nhtsa.gov/laws-regulations/fmvss . --------------------------------------------------------------------------- PHMSA thanks COSTHA for its comments on this topic, and PHMSA understands the concerns related to difficulties in ensuring gas is removed from these cylinders prior to transport, but it would be premature to adopt the FMVSS requirements into the HMR. The FMVSS requirements are not presently incorporated in the UN Model Regulations, and adoption of the FMVSS requirements would require additional coordination with Federal agencies outside of PHMSA. PHMSA may consider this action in a future rulemaking and invites COSTHA to file a petition for rulemaking in accordance with 49 CFR 106.95, 106.100 and 106.105, to formally request this change be made in the HMR. Additonally, PHMSA believes that a more comprehensive review of the current domestic standards used by vehicle fuel gas containment systems is necessary prior to incorporation in the HMR to help ensure safety standards that most closely align with existing practices are incorporated. The request could be further evaluated for merit to address in an upcoming rulemaking. Damaged and Defective Lithium Batteries In the NPRM, PHMSA discussed amendments to international standards not being considered for adoption. As stated in the NPRM, the 20th Revised Edition of the UN Model Regulations adopted transportation provisions for damaged and defective cells and batteries liable to rapidly disassemble, dangerously react, or produce a flame, a dangerous evolution of heat, or a dangerous emission of toxic, corrosive, or flammable gases or vapors under normal conditions of transport (UN Nos. 3090, 3091, 3480 and 3481). In the NPRM, PHMSA explained that the existing packaging and hazard communication requirements in Sec. 173.185(f) sufficiently address consignments of this nature. PHMSA received one comment from MDBTC in support of not adopting the provisions for damaged and defective lithium batteries. Competency-Based Training PHMSA received comments from AAR and ASLRRA, ACA, AHS, Alaska Airlines, CGA, COSTHA, DGAC, Dow, IATA, IME, Interested Parties, IVODGA, MDBTC, and RIPA in response to our request for comments on the principles of Competency-Based Training, recently published in the attachments of the ICAO Technical Instructions. As noted in the NPRM, the provisions concerning Competency-Based Training were not finalized or adopted in the 2017-2018 ICAO Technical Instructions and there were no proposals concerning this topic in the NPRM. PHMSA thanks all commenters for their views on the issue and, as noted in the NPRM, comments will be considered for the betterment of PHMSA's work in various international forums. Safety Devices in Dedicated Handling Devices PHMSA received a comment from COSTHA concerning safety devices in dedicated handling devices. COSTHA commented that PHMSA should align the provisions of Sec. 173.166(e)(4)(i) with the UN Model Regulations and the IMDG Code to authorize unpackaged articles in dedicated handling devices, vehicles, or containers to, from, or [[Page 27815]] between where they are manufactured and an assembly plant including intermediate handling locations. PHMSA notes that the provisions adopted by the UN and the IMDG Code are currently authorized in Sec. Sec. 173.166(e)(4)(i) and (ii), therefore no additional action is required. V. Section-By-Section Review The following is a section-by-section review of the amendments adopted in this final rule: Part 171--General Information, Regulations, and Definitions Section 171.7 Reference Material Section 171.7 provides a listing of all voluntary consensus standards incorporated by reference into the HMR, as directed by the ``National Technology Transfer and Advancement Act of 1995.'' According to the Office of Management and Budget (OMB), Circular A-119, ``Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,'' and in accordance with Sec 12(d)(1) of the ``National Technology Transfer and Advancement Act of 1995,'' government agencies must use voluntary consensus standards wherever practical in the development of regulations. When properly conducted, agency adoption of industry standards promotes productivity and efficiency in government and industry, expands opportunities for international trade, conserves resources, improves health and safety, and protects the environment. PHMSA actively participates in the development and updating of consensus standards through representation on more than 20 consensus standard bodies, and it regularly reviews updated consensus standards to consider their merit for inclusion in the HMR. For this rulemaking, PHMSA evaluated updated international consensus standards pertaining to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. It determined that the revised standards provide an enhanced level of safety without imposing significant compliance burdens. These standards have well-established and documented safety histories, and their adoption will maintain the high safety standard currently achieved under the HMR. Therefore, in this final rule, PHMSA is adding and revising the following incorporation by reference materials: Paragraph (s)(2) is added, to incorporate the International Atomic Energy Agency Code of Conduct on the Safety and Security of Radioactive Sources. Section 172.800 references the incorporation by reference of this document; however, this entry does not currently appear in Sec. 171.7. The addition of this paragraph corrects this oversight. The incorporation of this document in Sec. 172.800 provides a list of Category 1 and 2 radioactive sources for which offerors or carriers require a security plan. Paragraph (t)(1), which incorporates the International Civil Aviation Organization T","truncated":true,"body_characters":494095}