# Hazardous Materials: Harmonization With International Standards

- **operation:** document
- **citation:** 87 FR 44944
- **title:** Hazardous Materials: Harmonization With International Standards
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2022-07-26
- **effective on:** 2022-08-25
- **summary:** PHMSA is amending the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. Additionally, PHMSA is amending the HMR to allow for better alignment with Transport Canada's Transportation of Dangerous Goods Regulations. PHMSA is also withdrawing the unpublished October 1, 2020, Notice of Enforcement Policy Regarding International Standards on use of select updated international standards in complying with the HMR during the pendency of this rulemaking.
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Federal Register, Volume 87 Issue 142 (Tuesday, July 26, 2022) [Federal Register Volume 87, Number 142 (Tuesday, July 26, 2022)] [Rules and Regulations] [Pages 44944-45001] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2022-15358] [[Page 44943]] Vol. 87 Tuesday, No. 142 July 26, 2022 Part V Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 171, 172, 173, et al. Hazardous Materials: Harmonization With International Standards; Final Rule Federal Register / Vol. 87 , No. 142 / Tuesday, July 26, 2022 / Rules and Regulations [[Page 44944]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, 178, and 180 [Docket No. PHMSA-2019-0030 (HM-215P)] RIN 2137-AF46 Hazardous Materials: Harmonization With International Standards AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA is amending the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. Additionally, PHMSA is amending the HMR to allow for better alignment with Transport Canada's Transportation of Dangerous Goods Regulations. PHMSA is also withdrawing the unpublished October 1, 2020, Notice of Enforcement Policy Regarding International Standards on use of select updated international standards in complying with the HMR during the pendency of this rulemaking. DATES: Effective date: This rule is effective August 25, 2022. Voluntary compliance date: January 1, 2021. Delayed compliance date: July 26, 2023. Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register on August 25, 2022. The incorporation by reference of certain other publications listed in this rule was approved by the Director of the Federal Register as of May 11, 2020. FOR FURTHER INFORMATION CONTACT: Candace Casey, Standards and Rulemaking, Steven Andrews, Standards and Rulemaking, or Aaron Wiener, International Program, at (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. Comment Discussion V. Section-by-Section Review of Amendments VI. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act and Executive Order 13272 F. Paperwork Reduction Act G. Unfunded Mandates Reform Act of 1995 H. Environment Assessment I. Executive Order 12898 J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. National Technology Transfer and Advancement Act I. Executive Summary As discussed in further detail in this final rule (see the V. Section-by-Section Review of Amendments), the Pipeline and Hazardous Materials Safety Administration (PHMSA) amends certain sections of the Hazardous Materials Regulations (HMR; 49 CFR parts 171 to 180) to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. Furthermore, this final rule addresses the 17 sets of comments received in response to the Notice of Proposed Rulemaking (NPRM) \1\ published in August 2021. Overall, the comments to the NPRM were generally supportive of the proposals made; however, PHMSA did receive a few comments seeking further clarification or revisions to the NPRM which PHMSA also addresses in this final rule. --------------------------------------------------------------------------- \1\ 86 FR 43844 (Aug. 10, 2021). --------------------------------------------------------------------------- PHMSA expects that the adoption of the regulatory amendments in this final rule will facilitate transportation efficiency while maintaining the high safety standard currently achieved under the HMR. For example, the final rule will improve the safe transportation of vaccines and other medical materials associated with the ongoing response to the coronavirus disease 2019 (COVID-19) public health emergency, or any similar public health emergency that may emerge, by removing unnecessary regulatory hurdles to the international movement of those materials. This final rule will also align HMR requirements with anticipated increases in the volume of lithium batteries transported in interstate commerce from electrification of the transportation and other economic sectors. PHMSA also notes that the harmonization of the HMR with international consensus standards could reduce delays and interruptions of hazardous materials during transportation. The amendments may also lower greenhouse gas (GHG) emissions and safety risks to minority, low-income, underserved, and other disadvantaged populations, and communities in the vicinity of interim storage sites and transportation arteries and hubs. The following list summarizes the more noteworthy amendments set forth in this final rule: Incorporation by Reference: PHMSA is incorporating by reference updated versions of the following international hazardous materials regulations and standards: the 2021-2022 Edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions); Amendment 40-20 to the International Maritime Dangerous Goods Code (IMDG Code); the 21st revised edition of the United Nations Recommendations on the Transport of Dangerous Goods--Model Regulations (UN Model Regulations); and the International Atomic Energy Agency (IAEA) ``Specific Safety Requirements Number SSR-6: Regulations for the Safe Transport of Radioactive Material 2018 Edition'' (SSR-6, Rev.1). PHMSA also incorporates by reference several new or updated International Organization for Standardization (ISO) standards, as well as an updated version of the Organization for Economic Cooperation and Development (OECD) Guidelines for the Testing of Chemicals Test No. 431: In vitro skin corrosion: reconstructed human epidermis (RHE) test method. Transport Canada temporary certificates: PHMSA is amending the HMR to authorize the highway or rail transportation of a hazardous material within the United States pursuant to a temporary certificate issued under Transport Canada's Transportation of Dangerous Goods Regulations (TDG Regulations). Hazardous Materials Table: PHMSA is amending the Hazardous Materials Table (HMT; 49 CFR 172.101) to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging [[Page 44945]] requirements, and passenger and cargo aircraft maximum quantity limits. Data loggers: PHMSA is adopting provisions for lithium batteries in equipment that are attached to or contained in packagings, large packagings, intermediate bulk containers (IBCs), or cargo transport units as equipment in use or intended for use during transport, such as data loggers. Additionally, in response to the COVID-19 public health emergency and consistent with revisions to the 2021-2022 ICAO Technical Instructions, PHMSA is adding provisions specific to the air transportation of these items used in association with shipments of COVID-19 pharmaceuticals, including vaccines. Removal of metal wall thickness requirements for certain metal IBCs: PHMSA is removing the minimum wall thickness requirements for metal IBCs that have a capacity of 1500 liters (L) or less. Stabilized fish meal or fish scrap by air: PHMSA is authorizing the transport of stabilized fish meal or fish scrap (UN2216) on passenger and cargo aircraft. Currently, when transported as a Class 9 material, stabilized fish meal or fish scrap is only authorized for transportation by vessel. As a part of this amendment, PHMSA is also expanding the applicability of the stabilization requirements currently in place for shipments of these materials by vessel. UN3549 Category A Medical Wastes: PHMSA is adding an entry to the HMT for ``UN3549, Medical Waste, Category A, Affecting Humans, solid or Medical Waste, Category A, Affecting Animals only, solid.'' This entry provides an additional shipping description for solid materials meeting the Category A classification criteria that are not appropriate for classification in existing entries/classes ``UN2814, Infectious substances, affecting humans, 6.2'' or ``UN2900, Infectious substances, affecting animals only, 6.2.'' Solid medical waste containing Category A infectious substances generated from the medical treatment of humans or veterinary treatment of animals (e.g., disposable personal protective equipment) may be assigned to UN3549. Although PHMSA is not adopting certain packaging provisions adopted in the UN Model Regulations (UNMR), we are assigning Special Provision 131--which directs shippers to request approval from the Associate Administrator, through a special permit, prior to transportation--to UN3549. Additionally, PHMSA is amending certain parts of Sec. 173.134, which provides definitions and exceptions for Class 6, Division 6.2 hazardous materials, to include references to this new UN number and proper shipping name. Additional packagings for ``UN2211, Polymeric beads, expandable, evolving flammable vapor'' and ``UN3314, Plastic molding compound in dough, sheet or extruded rope form evolving flammable vapor'': PHMSA is expanding the authorized packagings for polymeric beads and plastic molding compound to include combination packagings rather than limiting packaging options to single packagings. Miscellaneous revisions of requirements pertaining to the transportation of lithium batteries: PHMSA is amending several provisions, including, but not limited to, minimum size markings and modification of stowage requirements for lithium batteries including those offered as damaged/defective or for disposal/recycling. PHMSA expects the revisions will contribute to the safe transportation of increased volumes of lithium batteries anticipated as a result of the increased use of that technology in the transportation and other economic sectors. Definition of SADT (Self-accelerating decomposition temperature) and SAPT (Self-accelerating polymerizing temperature): PHMSA is amending the definitions of SADT and SAPT to clarify that the lowest temperature at which these chemical reactions may occur in a packaging, IBC, or portable tank. Periodic inspection for chemicals under pressure: PHMSA is extending the periodic inspection, from five to ten years, for cylinders that are filled with hazardous materials described as ``UN3500, Chemicals under pressure, n.o.s.'' that are also used as fire extinguishing agents. Technical name requirements for marine pollutants: PHMSA is amending provisions pertaining to the addition of technical names to the shipping description when transporting hazardous materials that contain marine pollutants. These amendments aim to provide flexibility regarding documentation and marking requirements, which currently require identifying the technical names of marine pollutant components in those materials. Additionally, PHMSA is amending Sec. Sec. 172.203(l) and 172.322 to limit the applicability of requirements for specific marine pollutant constituents for generic entries (indicated by the letter ``G'' in column 1 of the Hazardous Materials Table) and those containing ``n.o.s.'' as part of the proper shipping names. Stability tests for nitrocellulose: PHMSA is adding stability testing requirements for nitrocellulose to require that these materials meet the criteria of the Bergmann-Junk test or methyl violet paper test in the UN Manual of Tests and Criteria, Appendix 10. Some of the amendments represent clear improvements in safety, such as nitrocellulose stability testing, additional closures for packagings intended for pyrophoric materials, and on deck stowage requirements for lithium batteries transported by vessel for disposal, recycling, or those that are damaged or defective. Furthermore, all of the amendments are expected to maintain the HMR's high safety standard for the public and the environment. Additionally, PHMSA anticipates that there are safety benefits to be derived from improved compliance related to consistency amongst domestic and international regulations. Finally, as further explained in the Regulatory Impact Analysis (RIA), PHMSA calculates that the aggregate benefits of the amendments in this final rule more than justify their aggregate costs. In fact, PHMSA estimates that the annualized quantified net cost savings of this rulemaking, using a 7 percent discount rate, are approximately $24.5 to $28.3 million per year. II. Background The Federal hazardous materials transportation law (49 U.S.C. 5101 et seq.) directs PHMSA to participate in relevant international standard-setting bodies and encourages alignment of the HMR with international transport standards consistent with the promotion of safety and the public interest. See 49 U.S.C. 5120. This statutory mandate reflects the importance of international standard-setting activity considering the globalization of commercial transportation of hazardous materials. Harmonization of the HMR with those efforts can reduce the costs and other burdens of complying with multiple or inconsistent safety requirements between nations. Consistency between the HMR and current international standards can also enhance safety by: (1) ensuring that the HMR is informed by the latest best practices and lessons learned; (2) improving the understanding of--and compliance with--pertinent requirements; (3) facilitating the smooth flow of hazardous materials from their points of origin to their points of destination, thereby avoiding risks to the public and the environment from release of hazardous materials from delays or [[Page 44946]] interruptions in the transportation of those materials; and (4) enabling consistent emergency response procedures in the event of a hazardous materials incident. PHMSA participates in the development of international regulations and standards for the transportation of hazardous materials. It also adopts within the HMR international standards consistent with PHMSA's safety mission. PHMSA reviews and evaluates each international standard it considers for incorporation within the HMR on its own merits, to include the effects on transportation safety, the environmental impacts, and any economic impacts. PHMSA's 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. In a final rule published December 21, 1990,\2\ PHMSA's predecessor--the Research and Special Programs Administration (RSPA)-- comprehensively revised the HMR for greater consistency with the UNMR. The UNMR constitute a set of recommendations issued by the United Nations Committee of Experts (UNSCOE) on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The UNMR are amended and updated biennially by the UNSCOE and serve as the basis for national, regional, and international modal regulations, including the ICAO Technical Instructions and IMDG Code. --------------------------------------------------------------------------- \2\ 55 FR 52401 (Dec. 21, 1990). --------------------------------------------------------------------------- PHMSA has evaluated recent updates to the international standards and is revising the HMR to adopt changes consistent with revisions to the 2021-2022 Edition of the ICAO Technical Instructions, Amendment 40- 20 to the IMDG Code,\3\ and the 21st revised edition of the UNMR, all of which were published by or in effect on January 1, 2021. PHMSA issued a Notice of Enforcement Policy Regarding International Standards \4\ on October 1, 2020, stating that while PHMSA is considering the 2021-2022 Edition of the ICAO Technical Instructions and Amendment 40- 20 to the IMDG Code for potential adoption into the HMR, PHMSA and other Federal agencies that enforce the HMR--e.g., the Federal Railroad Administration, the Federal Aviation Administration (FAA), the Federal Motor Carrier Safety Administration, and the United States Coast Guard--will not take enforcement action against any offeror or carrier who uses these standards as an alternative to complying with current HMR requirements when all or part of the transportation is by air with respect to the ICAO Technical Instructions, or by vessel with respect to the IMDG Code. In addition, that Notice stated PHMSA, and its modal partners will not take enforcement action against any offeror or carrier who offers or accepts for domestic or international transportation by any mode packages marked or labeled in accordance with these standards. PHMSA withdraws its October 1, 2020, Notice of Enforcement Policy Regarding International Standards as of the effective date of this final rule. Additionally, in response to the ongoing global COVID-19 public health emergency, on December 31, 2020, and February 23, 2021, ICAO published addenda to the 2021-2022 Edition of the ICAO Technical Instructions to provide additional provisions and exceptions to reduce regulatory compliance burdens for the transport of certain hazardous materials, such as alcohols and aerosols used for hygienic purposes, by air. PHMSA is including those changes to international standards in this final rule. Finally, PHMSA is incorporating by reference these new international regulations and standards as well as new requirements from the IAEA, ``Specific Safety Requirements Number SSR-6: Regulations for the Safe Transport of Radioactive Material 2018 Edition'' (SSR-6, Rev.1); several new or updated ISO standards; and an updated version of the OECD Guidelines for the Testing of Chemicals Test No. 431: In vitro skin corrosion: reconstructed human epidermis (RHE) test method. The standards incorporated by reference are authorized for use for domestic transportation, under specific conditions, by part 171, subpart C of the HMR. --------------------------------------------------------------------------- \3\ Amendment 40-20 to the IMDG Code may be voluntarily complied with as of January 1, 2021; however, Amendment 39-18 will remain effective through May 31, 2022. \4\ PHMSA, Notice of Enforcement Policy Regarding International Standards (Oct. 1, 2020), https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/2020-10/Notice%20of%20Enforcement%20Policy%20Regarding%20International%20Standards%20Oct%201%202020.pdf . --------------------------------------------------------------------------- During PHMSA's development of the final rule, the President issued a series of Executive Orders coordinating the Federal response to the COVID-19 public health emergency--a handful of those are pertinent to this final rule. Specifically, section 2 of Executive Order 13987 (``Organizing and Mobilizing the United States Government to Provide a Unified and Effective Response to Combat COVID-19 and To Provide United States Leadership on Global Health and Security'') \5\ contemplates broad-based action across the Federal Government to ``produce, supply, and distribute personal protective equipment, vaccines, tests, and other supplies for the Nation's COVID-19 response.'' Similarly, Executive Order 14002 (``Economic Relief Related to COVID-19 Pandemic'') \6\ directs Federal agencies like PHMSA to respond to the economic harm caused by the COVID-19 public health emergency by promptly identifying actions they can take within existing authorities to provide economic relief to affected persons and businesses. Lastly, the President has announced ambitious reductions in national GHG emissions to combat climate change, identifying electrification of the transportation and other economic sectors--to include enabling more widespread use of electric storage technologies, such as lithium batteries--as a critical element of that effort.\7\ --------------------------------------------------------------------------- \5\ 86 FR 7019 (Jan. 20, 2021). \6\ 86 FR 7229 (Jan. 21, 2021). \7\ See, e.g., White House, ``Fact Sheet: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies'' (Apr. 21, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/ . --------------------------------------------------------------------------- III. Incorporation by Reference Discussion Under 1 CFR Part 51 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,'' government agencies must use voluntary consensus standards wherever practical in the development of regulations. PHMSA currently incorporates by reference into the HMR all or parts of several standards and specifications developed and published by standard development organizations (SDOs). In general, SDOs update and revise their published standards every two to five years to reflect modern technology and best technical practices. The National Technology Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs Federal agencies to use standards developed by voluntary consensus standards bodies in lieu of government-written standards whenever possible. Voluntary consensus standards [[Page 44947]] bodies develop, establish, or coordinate technical standards using agreed-upon procedures. OMB issued Circular A-119 to implement section 12(d) of the NTTAA relative to the utilization of consensus technical standards by Federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the NTTAA. Accordingly, PHMSA is responsible for determining which currently referenced standards should be updated, revised, or removed, and which standards should be added to the HMR. Revisions to materials incorporated by reference in the HMR are handled via the rulemaking process, which allows for the public and regulated entities to provide input. The UNMR, the UN Manual of Tests and Criteria, the IAEA Regulations for the Safe Transport of Radioactive Material, and the OECD Guidelines for the Testing of Chemicals Test No. 431: In vitro skin corrosion: reconstructed human epidermis (RHE) test method 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 standard references are available for interested parties to purchase in either print or electronic versions through the parent organization websites. The price charged for those standards not freely available helps to cover the cost of developing, maintaining, hosting, and accessing these standards. The specific standards are discussed in greater detail in ``V. Section-by-Section Review of Amendments Section'' of this document. IV. Comment Discussion In response to the NPRM, PHMSA received 17 sets of comments \8\ from the following persons: --------------------------------------------------------------------------- \8\ https://www.regulations.gov/docket/PHMSA-2019-0030/comments . Airbus Amazon Anonymous Council on the Safe Transportation of Hazardous Articles (COSTHA) Dangerous Goods Advisory Council (DGAC) Dow Chemical Company (Dow) Elanore Tessitore Healthcare Waste Institute (HWI) Institute for the Makers of Explosives (IME) Luxfer Canada Luxfer Gas Cylinders Medical Device Transport Council (MDTC) The Rechargeable Battery Association (PRBA) Reggie Valentine Rigid Intermediate Bulk Container Association (RIBCA) Reusable Industrial Packaging Association (RIPA) Stericycle PHMSA received comments from Amazon, DGAC, COSTHA, MDTC, and PRBA, all providing general support for harmonization with international standards with additional support from Luxfer Gas Cylinders for the incorporation by reference of the ISO standards applicable to cylinders. In addition, PHMSA received a comment from IME encouraging expeditious adoption of changes to international regulations into the HMR. Comments concerning the sunset provisions for polymerizing substances, damaged or defective batteries, and comments outside the scope of this rulemaking are discussed below. All other comments specific to proposed changes to HMR sections are addressed in the ``V. Section-by-Section Review of Amendments'' of this document. A. Comments Outside the Scope of This Rulemaking PHMSA received a comment from an anonymous person noting that PHMSA did not propose to update the publications referenced in Sec. 173.58(c). This section addresses the assignment of Class and Divisions for new explosives and paragraph (c) specifically addresses classification of Division 1.6 explosives. The anonymous commenter states the provisions of Sec. 173.58(c) are outdated relative to the 21st revised edition of the UNMR and the UN Manual of Tests and Criteria 7th revised edition. The anonymous commenter suggests that PHMSA review and amend Sec. 173.58(c) to maintain alignment with international regulations. Specifically, the commenter notes that the UN provisions (as outlined in the UN Manual of Test and Criteria) currently specify that explosive substances in Division 1.6 articles must be ``predominantly containing an extremely insensitive substance'' and must no longer be ``exclusively containing an extremely insensitive substance'' as currently cited in Sec. 173.58(c). Additionally, the commenter adds that a Division 1.6 article fragment impact test has been added to the UN provisions (as outlined in the UN Manual of Test and Criteria) for Division 1.6 articles and that test is not cited within Sec. 173.58(c). PHMSA acknowledges the commenter's concerns over the testing requirements for Division 1.6 explosives in Sec. 173.58(c). However, PHMSA did not propose changes to this section in the NPRM and, therefore, declines to make such revisions in this final rule without further evaluation by PHMSA subject matter experts and an opportunity for stakeholders to comment on the issue. If the commenter has a proposal to revise the regulatory text Sec. 173.58(c), PHMSA encourages the commenter to submit a petition for rulemaking in accordance with 49 CFR 106.100 and provide specific justification that the regulatory text at Sec. 173.58(c) must be updated to mirror language in the updated industry standards referenced elsewhere in Sec. 173.58. In its comments on the NPRM, MDTC noted that PHMSA did not address the inclusion of Special Provision A201--approval of the State of Origin and the operator--and other provisions codified in the HM-224I Interim Final Rule (IFR).\9\ While PHMSA appreciates the comments from MDTC, we are not addressing comments to the HM-224I IFR in this final rule. PHMSA will address and respond to all comments on the HM-224I IFR in a future HM-224I final rule. --------------------------------------------------------------------------- \9\ 84 FR 8006 (Mar. 6, 2019). --------------------------------------------------------------------------- B. Polymerizing Substances Dow and DGAC provided comments on the sunset dates for polymerizing substances as outlined in a previously issued international harmonization final rule, HM-215O.\10\ In HM-215O, PHMSA extended the sunset dates to January 2, 2023, for polymerizing substances to allow PHMSA to complete an ongoing research project and analyze all comments and data concerning the issue submitted to the docket for the HM-215O \11\ NPRM. Dow and DGAC are concerned that the next international harmonization rule will be published after January 2, 2023, resulting in polymerizing substances regulations no longer being in effect for transportation in accordance with the HMR. PHMSA expects to address these concerns regarding sunset dates for transportation of polymerizing substances in a final rule prior to the expiration of the sunset dates. --------------------------------------------------------------------------- \10\ 79 FR 46012 (Aug. 16, 2014). \11\ 85 FR 27810 (May 11, 2020). --------------------------------------------------------------------------- C. Guidance on Damaged or Defective Batteries In its comments, MDTC and PRBA requested that PHMSA include a note from Special Provision 376 of the UNMR for determining whether a lithium battery is damaged or defective within the amendments adopted in this [[Page 44948]] final rule. The commenters state this note will better assist shippers on how to evaluate whether a lithium battery is considered damaged or defective. PHMSA appreciates MDTC and PRBA bringing this issue to our attention and concurs that more guidance is needed to help in the determination of when a lithium battery is considered damaged or defective. However, the note to Special Provision 376 of the UNMR is guidance and not prescriptive language within that international standard. While PHMSA does not believe it is appropriate to codify the note to Special Provision 376 of the UNMR within the HMR currently, PHMSA acknowledges the value of the Special Provision 376 language in providing guidance on the shipment of damaged or defective batteries. Towards that end, PHMSA has issued a safety advisory notice on the shipment of damaged or defective batteries.\12\ Within this safety advisory notice, PHMSA has paraphrased and cited the guidance presented in the note to Special Provision 376 of the UNMR for determining when a battery is damaged or defective. PHMSA encourages the shippers of damaged or defective batteries to review this notice for assistance in the shipment of damaged or defective lithium batteries. --------------------------------------------------------------------------- \12\ See the ``Safety Advisory Notice for the Disposal and Recycling of Lithium Batteries in Commercial Transportation'' issued on May 17, 2022, at: https://www.phmsa.dot.gov/news/phmsa-safety-advisory-notice-transportation-lithium-batteries-disposal-or-recycling . --------------------------------------------------------------------------- D. Support for PHMSA's Decision Not To Propose Certain Amendments DGAC provided comments on revisions in the 21st revised edition of the UNMR that contain packing instructions for several electric battery entries in the UNMR. The 21st revised edition of the UNMR contains amendments to Packing Instruction P801, applicable to used batteries assigned the following UN numbers: ``UN2794, Batteries, wet, filled with acid, electric storage;'' ``UN2795, Batteries, wet, filled with alkali, electric storage;'' and ``UN3028, Batteries, dry, containing potassium hydroxide solid, electric storage.'' These amendments were adopted to correct issues unique to the UNMR pertaining to the required use of stainless-steel boxes and plastic bins as packaging for these used batteries. DGAC provided comments in support of PHMSA's decision to not propose adopting these unique packaging requirements into the HMR and concurs with PHMSA's position that there is not a sufficient safety justification to limit the transport of used batteries. DGAC concludes the new provisions to P801 for these batteries would not substantially improve their safe transportation. V. Section-by-Section Review of Amendments The following is a section-by-section review of the amendments in this final rule. A. Part 171 Section 171.7 Section 171.7 provides a listing of all voluntary consensus standards incorporated by reference into the HMR, as directed by the NTTAA. 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. PHMSA contributed to the development of those updated standards--each of which build on the well-established and documented safety histories of earlier editions--as it participated in the discussions and working group activities associated with their proposal, revision, and approval. Those activities have, in turn, informed PHMSA's evaluation of the effect on safety those updated consensus standards would have when incorporated by reference and their provisions adopted into the HMR. Further, PHMSA notes that some of the consensus standards incorporated by reference within the HMR in this rulemaking have already been adopted into the regulatory schemes of other countries, noting again that PHMSA itself has issued an enforcement discretion authorizing their use as an interim strategy for complying with current HMR requirements. PHMSA is not aware of adverse safety impacts from that operational experience. For these reasons, PHMSA expects their adoption will maintain the high safety standard currently achieved under the HMR. PHMSA received a comment from DGAC in support of these incorporation by reference revisions. Therefore, PHMSA is adding or revising the following incorporation by reference materials: In paragraph (s)(1), incorporate by reference the 2018 edition of the IAEA Regulations for the Safe Transport of Radioactive Material, Safety Standards Series No. SSR-6 (Rev.1), to replace the 2012 edition, which is currently referenced in Sec. Sec. 171.22; 171.23; 171.26; 173.415; 173.416; 173.417; 173.435; and 173.473. The IAEA regulations establish standards of safety for control of the radiation, criticality, and thermal hazards to people, property, and the environment that are associated with the transport of radioactive materials. Notable changes from the previous 2012 edition include clarification of certain marking requirements, a new group of surface contaminated objects SCO-III for ``UN2914,'' and amendments to basic radionuclide values (activity of the radionuclide as listed in Sec. 173.435) for seven specific radionuclides (Ba-135m, Ge-69, Ir-193m, Ni- 57, Sr-83, Tb-149 and Tb-161). The Regulations for the Safe Transport of Radioactive Material are available for download (free PDF) and purchase in hard copy on the IAEA website at: https://www.iaea.org/publications/12288/regulations-for-the-safe-transport-of-radioactive-material . In paragraph (t)(1), incorporate by reference the 2021- 2022 edition of the ICAO Technical Instructions, to replace the 2019- 2020 Edition, which is currently referenced in Sec. Sec. 171.8; 171.22; 171.23; 171.24; 172.101; 172.202; 172.401; 172.407; 172.512; 172.519; 172.602; 173.56; 173.320; 175.10, 175.33; and 178.3. The ICAO Technical Instructions specify detailed instructions for the safe international transport of dangerous goods by air. The requirements in the 2021-2022 edition have been amended to better align with the 21st revised edition of the UNMR and the IAEA Regulations for the Safe Transport of Radioactive Material. Notable changes in the 2021-2022 edition of the ICAO Technical Instructions include new packing and stowage provisions, new and revised entries on the Dangerous Goods List, and editorial corrections. The 2021-2022 edition of the ICAO Technical Instructions are available for purchase on the ICAO website at https://store.icao.int/en/shop-by-areas/safety/dangerous-goods . In paragraph (v)(2), incorporate by reference the 2020 edition of the IMDG Code, Incorporating Amendment 40-20 (English Edition), to replace Incorporating Amendment 39-18, 2018 Edition, which is currently referenced in Sec. Sec. 171.22; 171.23; 171.25; 172.101; 172.202; 172.203; 172.401; 172.407; 172.502; 172.519; 172.602; 173.21; 173.56; 176.2; 176.5; 176.11; 176.27; 176.30; 176.83; 176.84; 176.140; 176.720; 176.906; 178.3; and 178.274. The IMDG Code is a unified international code that outlines standards and requirements for the transport of dangerous goods by vessel. Notable changes in Amendment 40-20 include new packing and stowage provisions, new and revised entries on the Dangerous Goods List, and editorial corrections. Distributors of the IMDG Code can be found on the International [[Page 44949]] Maritime Organization (IMO) website at: https://www.imo.org/en/publications/Pages/Distributors-default.aspx . In paragraph (w), incorporate by reference or remove the following ISO documents to include new and updated standards for the specification, design, construction, testing, and use of gas cylinders: --ISO 10156:2017, ``Gas cylinders--Gases and gas mixtures-- Determination of fire potential and oxidizing ability for the selection of cylinder valve outlets'' in paragraph (w)(38) and referenced in Sec. 173.115. ISO 10156 specifies methods for determining whether a gas or gas mixture is flammable in air and whether a gas or gas mixture is more or less oxidizing than air under atmospheric conditions. It is intended to be used for the classification of gases and gas mixtures including the selection of gas cylinder valve outlets. This amendment removes ISO 10156:2010, third edition, and the associated corrigendum (ISO 10156:2010/Cor.1:2010(E)), from the HMR and adds the revised ISO 10156:2017(E), fourth edition, as the former documents have been withdrawn by ISO and replaced with the updated 2017 versions. As part of the five-year periodic review of all standards, ISO reviewed ISO 10156:2010 and published an updated version, ISO 10156:2017, which was published in September 2017 and adopted in the 21st revised edition of the UNMR. While many of the edits in this 2017 version were editorial changes made to suit the ISO publication rules, the standard has also been supplemented with a test method to determine the flammability limits of gases and gas mixtures in air and a calculation method to determine the lower flammability limit of a gas mixture. PHMSA expects that the latter change will enhance safety by providing improved instruction on the determination of flammability of gases and gas mixtures which aids in the proper selection of a valve. (See Sec. 173.115 of the Section-by-Section Review of Amendments for additional discussion of this change). --ISO 10297:2014/Amd 1:2017, ``Gas cylinders--Cylinder valves-- Specification and type testing'' in paragraph (w)(42) and referenced in Sec. Sec. 173.301b and 178.71. ISO published this supplemental amendment to the 2014 version of this document (i.e., ISO 10297:2014) to clarify valve requirements for tubes and pressure drums and to correct errors found in the 2014 version. PHMSA references this amendment in Sec. Sec. 173.301b and 178.71, where use of ISO 10297:2014 is required. PHMSA reviewed this document and determined that the amendments provide additional safety benefits for hazardous material
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