
[Federal Register Volume 77, Number 102 (Friday, May 25, 2012)]
[Proposed Rules]
[Pages 31274-31289]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12523]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 175, 176 and 178

[Docket No. PHMSA-2009-0126 (HM-215K)]
RIN 2137-AE83


Hazardous Materials: Harmonization With the United Nations 
Recommendations on the Transport of Dangerous Goods: Model Regulations, 
International Maritime Dangerous Goods Code, and the International 
Civil Aviation Organization Technical Instructions for the Safe 
Transport of Dangerous Goods by Air

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This document responds to administrative appeals and solicits 
public comment on proposals generated as a result of certain amendments 
adopted in an international harmonization final rule published in the 
Federal Register. The final rule amended the Hazardous Materials 
Regulations (HMR) by revising, removing or adding proper shipping 
names, the hazard class of a material, packing group assignments, 
special provisions, packaging authorizations, packaging sections, air 
transport quantity limitations, and vessel stowage requirements. The 
amendments were

[[Page 31275]]

necessary to align the HMR with recent revisions to international 
standards for the transport of hazardous materials by all modes. In 
this notice, PHMSA proposes to amend the HMR as a result of 
administrative appeals submitted in response to various amendments 
adopted in the January 19, 2011 final rule. This document also 
addresses recent actions taken by the International Civil Aviation 
Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain 
lithium ion battery-powered mobility aids (e.g., wheelchairs, travel 
scooters) offered by passengers for air transport. Further, this notice 
proposes amendments to the HMR as a result of two administrative 
appeals submitted by an appellant in response to a final rule published 
in the Federal Register, that revised shipper responsibilities related 
to packaging design variation, manufacturer notification, and 
recordkeeping requirements for certain packaging types.

DATES: Comments must be received by July 24, 2012.

ADDRESSES: You may submit comments by any of the following methods:
    Federal Rulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Fax: 1-202-493-2251.
    Mail: Docket Management System; U.S. Department of Transportation, 
Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE., Washington, DC 20590-0001.
    Hand Delivery: To U.S. Department of Transportation, Dockets 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001 between 9 a.m. and 5 p.m. Monday through 
Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2009-
0126 (HM-215K) or RIN 2137-AE83 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477), or you 
may visit http://www.regulations.gov.
    Docket: You may view the public docket through the Internet at 
http://www.regulations.gov or in person at the Docket Operations office 
at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Michael Stevens, telephone (202) 366-
8553, or Shane Kelley, telephone (202) 366-0656, Standards and 
Rulemaking Division, telephone (202) 366-0656, Pipeline and Hazardous 
Materials Safety Administration, U.S. Department of Transportation, 
1200 New Jersey Avenue SE., 2nd Floor, Washington, DC. 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background
II. Administrative Appeals Submitted in Response to the HM-215K 
Final Rule
    A. Transportation of ORM-D Material
    1. Phase-Out of the ORM-D System
    2. Overpacks Containing Limited Quantity or ORM-D Material
    B. Use of the Square-On-Point and ID Number Limited Quantity 
Marking
    C. Fuel Cell Cartridges Transported in Passenger Checked Baggage
    D. Consumer Commodity Transported by Aircraft
    E. Incident Reporting for Limited Quantity Material
    F. Materials of Trade Exceptions
III. Recent Changes to Part 8 of the ICAO Technical Instructions
IV. Administrative Appeals Submitted in Response to the HM-231 Final 
Rule
V. Section-by-Section Review of Changes
VI. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for the Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act
    K. International Trade Analysis

I. Background

    On January 19, 2011, PHMSA published a final rule under Docket 
PHMSA-2009-0126 (HM-215K; 76 FR 3308) that revised the Hazardous 
Materials Regulations (HMR; 49 CFR Parts 171-180) to align with various 
international standards. The final rule adopted amendments to the HMR 
regarding hazard communication, hazard classification including packing 
group assignment, packaging authorization, air transport quantity 
limitations, and various other international harmonization-related 
topics. The amendments were necessary to align the HMR with the latest 
revisions to the International Civil Aviation Organization's Technical 
Instructions for the Safe Transport of Dangerous Goods by Air (ICAO 
Technical Instructions), the International Maritime Organization's 
Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of 
Dangerous Goods Regulations (TDG Regulations), and the United Nations 
Recommendations on the Transport of Dangerous Goods: Model Regulations 
(UN Model Regulations) to facilitate to the seamless transportation of 
hazardous materials internationally, to, from, and within the United 
States. In this notice of proposed rulemaking (NPRM), PHMSA is 
proposing a number of amendments in response to administrative appeals 
filed in accordance with 49 CFR 106.110-130 regarding revisions to the 
HMR adopted in the January 19, 2011 final rule. This document also 
addresses recent actions taken by the International Civil Aviation 
Organization's (ICAO) Dangerous Goods Panel (DGP) regarding certain 
lithium ion battery-powered mobility aids (e.g., wheelchairs, travel 
scooters) offered by passengers for air transport. Additionally, PHMSA 
is proposing amendments to the HMR as a result of two administrative 
appeals submitted by an appellant in response to a final rule published 
February 2, 2010 (HM-231; 75 FR 5376), that revised shipper 
responsibilities related to packaging design variation and manufacturer 
notification recordkeeping requirements for certain packaging types.

II. Administrative Appeals Submitted in Response to the HM-215K Final 
Rule

    This notice addresses administrative appeals submitted in response 
to the January 19, 2011 final rule from the following companies and 
organizations:

American Coatings Association (ACA).
Association of Hazmat Shippers, Inc. (AHS)
Dangerous Goods Advisory Council, Inc. (DGAC).
Fuel Cell and Hydrogen Energy Association (FCHEA).
Healthcare Distribution Management Association (HDMA).
Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI)
PPG Industries (PPG).

    The administrative appeals are discussed in detail as follows:

A. Transportation of ORM-D Material

    A number of administrative appeals concern issues related to our 
adoption of the international system for transportation of limited 
quantity

[[Page 31276]]

material. Specifically, some appellants are concerned with the eventual 
phase-out of our domestic system for the transportation of limited 
quantity material otherwise known as other regulated material (ORM-D) 
(i.e., the ORM-D system). Under certain conditions, the HMR and 
international standards allow lesser quantities of relatively low risk 
hazardous materials (i.e., limited quantity material) to be afforded 
relief from some of the requirements generally applicable to hazardous 
materials transported by all modes. For example, a limited quantity 
material is not generally required to be packaged in a DOT or UN 
standard packaging. Most regulatory amendments resulting from adoption 
of the international system and the eventual phase-out of the ORM-D 
system involve revisions to hazard communication requirements, material 
quantity limitations and the types of material authorized. In this 
notice, we note that the AHS petition (P-1542) and PHMSA initiative to 
adopt limited quantity requirements for Types B through F self-reactive 
liquids and solids (non-temperature controlled) will be addressed in a 
separate NPRM under Docket No. PHMSA-2011-0142 (HM-219).
1. Phase-Out of the ORM-D System
    PHMSA revised the HMR to phase out its system of reclassing and 
transporting limited quantity material as ORM-D. Under this system, a 
limited quantity of hazardous material that also meets the definition 
of a ``consumer commodity'' may be reclassed as ORM-D and is eligible 
for additional exceptions from regulation. See Sec.  171.8 for the 
definition of ``consumer commodity.'' The January 19 final rule amended 
the HMR by phasing out the ORM-D system beginning January 1, 2013, for 
material transported by aircraft and, January 1, 2014, for material 
transported by all other modes of transportation (e.g., motor vehicle). 
ACA and HDMA appealed our decision to phase out the ORM-D system 
arguing that we did so ``without any debate or consideration of [1] the 
type of materials that use this exception; [2] the costs incurred by 
the regulated community; and [3] the safety benefits.'' ACA claimed 
that many companies and organizations, including themselves, asked for 
a separate rulemaking to address these issues. ACA is also concerned 
that although we provided a summary of comments against the phase-out 
in the preamble to the final rule, PHMSA did not discuss arguments 
raised in the comments. They stated we arbitrarily concluded that 
because there would be no immediate phase-out of the current ORM-D 
system, there would not be a sizeable impact to companies on the basis 
they would have sufficient time to adjust to the eventual phase-out. 
ACA asked us to reconsider the decision to not move forward in a 
separate rulemaking and to fully consider the effects of phasing out 
the ORM-D system. Additionally, HDMA requested that PHMSA allow for up 
to a 10-year phase-out based on the longevity of its packaging systems 
(i.e., totes) currently in use. According to HDMA, such totes are 
permanently marked with the ``Consumer commodity, ORM-D'' marking on 
them.
    PHMSA response.
    The HMR have long-recognized the relatively low risk posed by the 
transportation of certain hazardous materials such as limited 
quantities or consumer commodities. Considerable efforts have been made 
internationally to harmonize multi-modal standards with regard to the 
transport of limited quantities, including consumer commodities. We 
held public meetings on this issue in February 2006 and March 2008 to 
discuss potential impacts on domestic stakeholders. Additionally, this 
issue was discussed during our pre-UN public meetings held in 2006 and 
2007. There was considerable domestic interest in pursuing further 
harmonization internationally due to the potential for substantial 
savings in transportation costs and improved transportation efficiency. 
In the advance notice of proposed rulemaking (ANPRM) (October 21, 2009; 
74 FR 53982) and NPRM we invited comments on this issue with regard to 
aligning the HMR with the UN Model Regulations for the domestic and 
international transport of limited quantities and consumer commodities. 
Of particular concern were any negative impacts on the domestic 
transportation of consumer commodities reclassed as ORM-D materials. 
While some changes adopted in the UN Model Regulations were similar to 
those currently in the HMR regarding limited quantities and consumer 
commodities (e.g., inner packaging limits and non-specification outer 
packagings allowed), some changes were not (e.g., marking, labeling, 
package gross mass). We stated that depending on the comments received 
and our own evaluation, we may determine that the significance of any 
amendments on the issue may warrant a separate rulemaking action. In 
the January 19, 2011 final rule, we concluded a separate rulemaking was 
not in the best interest of the hazardous material transportation 
community particularly when it involves international transportation. 
Further, creating a single global system for packaging, hazard 
communication, and transportation of limited quantity material would 
facilitate the domestic and international flow of hazardous material 
trade and any further delay in the phase-out would not be useful. 
Little or no quantification of any negative impact, including costs to 
domestic shippers and carriers alike, was provided in response to the 
ANPRM or NPRM. However, the Healthcare Distribution Management 
Association (HDMA) did provide some cost data related to its unique 
practice of reusing totes permanently embossed with the ORM-D marking. 
Some commenters also argued against any phase-out based on the 
historically safe transportation of limited quantity material under the 
ORM-D system. Commenters further stated that PHMSA should not adopt the 
international system simply based on the opportunity to align the HMR 
with international standards.
    Allowing dual systems for communicating packages of limited 
quantity material would likely cause confusion and place unreasonable 
burdens on carriers and some shippers to train their hazmat employees 
to recognize and comply with both systems. We believe adopting a single 
global system for the transportation of limited quantity material will 
greatly improve safety and efficiency by decreasing the aforementioned 
potential for delays and confusion during transportation and by 
removing the burden of providing training in dual systems used to 
communicate the transportation of limited quantity material. However, 
we recognize the need to provide sufficient time for domestic shippers 
and carriers to adjust to the revised system and are sympathetic to the 
concerns expressed by ACA, HDMA and others regarding this need. 
Therefore, in this notice we are proposing only to authorize the 
continued use of packagings marked ``Consumer commodity, ORM-D'' until 
December 31, 2015 for domestic highway, rail and vessel transportation.
2. Overpacks Containing Limited Quantity or ORM-D Material
    In the January 19, 2011 final rule, PHMSA revised the regulation 
for overpacks (as defined in Sec.  171.8) by requiring the ``OVERPACK'' 
marking on an overpack containing limited quantity packaging if all 
markings are not visible. DGAC expressed concern over the manner in 
which the language in the requirement is phrased, and that it implies 
all markings on each packaging in the overpack must be visible. DGAC 
noted that this is not consistent with the

[[Page 31277]]

UN Model Regulations which states the overpack ``shall be marked with 
the word ``OVERPACK'' and the marking required by this Chapter unless 
the markings representative of all dangerous goods in the overpack are 
visible.'' See 3.4.11 of the 16th Revised Edition of the UN Model 
Regulations. It is their understanding this refers to the limited 
quantity marking and not to all markings that may be required by the UN 
Model Regulations. Their understanding is that use of the term 
``representative'' communicates a requirement that only one limited 
quantity package marking needs to be visible to represent all limited 
quantity packaging. DGAC requested that PHMSA revise the overpack 
requirements in Sec.  173.25(a)(6) to be consistent with the UN Model 
Regulations.
    PHMSA response.
    The HMR do not currently require that every individual mark (or 
label) on each package contained in an overpack be visible. For 
example, as stated in Sec.  173.25(a)(2), an overpack must be marked 
with the proper shipping name and identification number (when 
applicable) for each hazardous material contained in the overpack, 
unless marking and labels representative of each hazardous material in 
the overpack are visible. We recommend where packages are stacked and/
or banded on a pallet as part of an overpack, the packages should be 
positioned, when possible, so that the markings and labels are visible 
on the outside of the overpack. However, this does not mean that every 
package marking (or label) must be visible or the overpack must be 
marked accordingly. With regard to the ``OVERPACK'' marking requirement 
for overpacks containing limited quantity and ORM packages, in this 
NPRM we are accepting DGAC's appeal and are proposing to revise Sec.  
173.25(a)(6) to clarify that not all limited quantity and ORM markings 
must be visible and that the marking requirement is only applicable to 
the limited quantity and ORM mark itself. Additionally, a new Sec.  
173.25(a)(7) is proposed to be added for clarity to separate limited 
quantity and ORM overpack marking requirements from excepted quantity 
overpack marking requirements.

B. Use of the Square-On-Point and ID Number Limited Quantity Marking

    Formerly, Sec.  172.315 excepted for other than transportation by 
aircraft, a package containing a limited quantity substance or article 
from being marked with the proper shipping name if it was marked with a 
square-on-point containing the UN identification (ID) number of the 
limited quantity substance or article. In the January 19, 2011 final 
rule, we provided a one-year transition period to authorize continued 
use of this marking before the revisions to the limited quantity 
markings become effective. ACA, DGAC, and PPG all stated the one-year 
transition period does not allow sufficient time to deplete stock(s) of 
packagings pre-printed with the square-on-point mark containing the ID 
number and requested an extension of three- to five-years. 
Specifically, ACA requested a three- to five-year timeframe while DGAC 
and PPG ask for a three-year timeframe. ACA, DGAC, and PPG maintained 
that without a longer transition period, shippers will be forced to 
remark packaging at their cost and there is no impact to safety by 
allowing continued use of the existing marking. Appellants also pointed 
out this alternative limited quantity marking communicates more 
information than the newly adopted markings or the original ORM-D 
markings. They stated that PHMSA already provides for a two- to three-
year transition period for the phase-out of the ORM-D marking, 
depending on the mode of transportation. They also requested, for 
clarification, that any transition periods be included in Sec.  171.14 
(transitional provisions) and Sec.  172.300 (marking applicability).
    PHMSA response.
    We agree that shippers should be provided with the same transition 
period to continue using the square-on-point mark containing the UN 
identification (ID) number that was provided for the continued use of 
the ORM-D marking(s). In the administrative appeal final rule (HM-215K; 
RIN 2137-AE76), we granted the appeals submitted by ACA, DGAC, and PPG 
and revised Sec.  172.315 accordingly to extend the transition period 
to December 31, 2013. The administrative final rule also authorized, 
for domestic air transportation, use of the square-on-point mark 
containing the ID number to continue until December 31, 2012.
    In response to administrative appeals filed by ACA, HDMA and DGAC, 
in this NPRM we are proposing that for other than air transportation, 
continued use of the square-on-point mark containing the ID number 
would be authorized until December 31, 2015. PHMSA is also soliciting 
public comment on whether for other than air transportation, a 
previously authorized limited quantity package marking (i.e., proper 
shipping name only) should be reauthorized for a similar transition 
period.

C. Fuel Cell Cartridges Transported in Passenger Checked Baggage

    In the January 19, 2011 final rule, we revised the 49 CFR 175.10 
passenger exceptions to allow passengers and crew members to place 
certain spare fuel cell cartridges containing a flammable liquid (Class 
3) or corrosive material (Class 8) in checked baggage. We limited the 
scope of fuel cell cartridge chemistries allowed in checked baggage by 
excluding fuel cell cartridges containing Divisions 2.1 (flammable gas) 
and 4.3 (dangerous when wet) material. Although this is inconsistent 
with the ICAO Technical Instructions, in that ICAO only restricts spare 
fuel cell cartridges containing Division 4.3 material from checked 
baggage, we believed that the prohibition should include spare 
cartridges containing Division 2.1 materials. Flammable gases are 
generally prohibited from transportation on passenger-carrying aircraft 
as cargo. When combined with the uncertainty of the effect of baggage 
handling on the durability of these products when stowed in a 
passenger's checked baggage, the risks posed are of concern. In their 
administrative appeals, FCHEA and LSI requested that PHMSA revise Sec.  
175.10 to align with the ICAO Technical Instructions and allow spare 
fuel cell cartridges containing Division 2.1 flammable gas to be 
carried in checked baggage.
    PHMSA response.
    We are granting the appeal for reconsideration of the issue by 
providing additional opportunity for comment. We are soliciting public 
comment until July 24, 2012 for the limited purpose of gathering 
information to help us determine whether or not to allow fuel cell 
cartridges containing Division 2.1 flammable gas to be carried aboard a 
passenger-carrying aircraft in checked baggage.

D. Consumer Commodity By Air

    In the January 19, 2011 final rule, PHMSA adopted requirements for 
certain consumer commodities intended for transportation by aircraft in 
new Sec.  173.167. The new description and identification number 
(ID8000) are consistent with the consumer commodity entry in the ICAO 
Technical Instructions in Packing Instruction Y963. In its appeal 
submitted in response to the final rule, DGAC expressed concerns that 
the alignment between the two standards was not consistent. For 
example, DGAC pointed out that absorbent material requirements and 
stack test criteria were not included in the Sec.  173.167 packaging 
section.

[[Page 31278]]

    PHMSA response.
    DGAC is correct in its assessment of the inconsistencies that exist 
between the consumer commodity provisions adopted in the HMR and the 
ICAO Technical Instructions. Thus, we are granting DGAC's 
administrative appeal and propose to revise Sec.  173.167 accordingly.

E. Incident Reporting for Limited Quantity Material

    The detailed hazardous materials incident reporting requirements of 
the HMR allow for exceptions from these requirements, specifically, 
Sec.  171.16(d)(2) excepts, under certain conditions, the unintentional 
release of a hazardous material properly classed as ORM-D and a PG III 
material in Class or Division 3, 4, 5, 6.1, 8, or 9, from the written 
reporting requirements. ACA indicated in its appeal that the reporting 
requirements as they apply to limited quantity material should be 
reviewed based on the eventual phase-out of the ORM-D hazard class and 
suggested the exception for ORM-D material should be extended to 
limited quantity packagings.
    PHMSA response.
    We agree with ACA that relief from incident reporting previously 
provided to ORM-D material should continue to be provided for such 
materials now transported as limited quantities. We are not, however, 
proposing to extend the exception from incident reporting to limited 
quantity Class 7 (radioactive) material, instruments, and articles due 
to the unique nature of the hazard and because this type of material 
was never authorized to be reclassed and transported as ORM-D. 
Additionally, this exception is not applicable to air transportation.

F. Materials of Trade

    The materials of trade (MOTS) exceptions of the HMR allow certain 
hazardous material articles and substances, including ORM-D, to be 
transported by motor vehicle as part of a business operation under less 
regulation.
    PHMSA response.
    Similar to the applicability of written incident reporting 
exceptions to limited quantity material, our review of the HMR revealed 
that we did not amend the materials of trade exceptions under the 
January 19, 2011 final rule to reflect the eventual phase-out of the 
ORM-D system. Similar to the revisions to the written incident 
reporting requirements, we believe there is no impact to safety by 
extending the exception for ORM-D to limited quantity material. Most 
materials reclassed as ORM-D are limited quantity material themselves; 
an ORM-D is a limited quantity material that also meets the definition 
of a ``consumer commodity.'' See Sec.  171.8 for the definition of 
consumer commodity.
    In this notice, we are proposing to extend the MOTS exceptions to 
limited quantity packages consistent with the exception provided to 
ORM-D material. We are not, however, proposing to extend the exception 
to limited quantities of Division 4.3 (dangerous when wet) liquid 
material or Class 7 (radioactive) material, instruments or articles due 
to the unique nature of these hazards and because these materials were 
never authorized to be reclassed and transported as ORM-D. 
Additionally, we propose to clarify that exceptions for limited 
quantity material also include limited quantity material authorized 
under Sec.  173.63 for certain Division 1.4S explosives and Sec.  
173.306 for compressed gases.

III. Recent Changes to Part 8 of the ICAO Technical Instructions

    At the 23rd Meeting of the ICAO Dangerous Goods Panel (DGP), held 
October 11-21, 2011, the DGP recommended amending Part 8 of the ICAO 
Technical Instructions applicable to passengers and crew members and 
the hazardous materials (dangerous goods) they may introduce aboard an 
aircraft either in checked or carry-on baggage or on one's person. Such 
provisions form the basis of similar provisions provided in Sec.  
175.10 of the HMR. One recommendation adopted by the DGP addressed 
concerns over wheelchairs and other mobility aids found activated after 
flight. Additionally, the DGP addressed the absence of any reference to 
mobility aids powered by nickel metal hydride batteries, and 
wheelchairs and other mobility aids specifically designed to allow its 
battery or batteries to be removed from the device and carried aboard 
the aircraft by a passenger within a protective bag or pouch. In this 
NPRM, PHMSA is proposing to amend the HMR by addressing the potential 
for unintended activation of all stowed devices on an aircraft and 
providing for the intentional removal of a lithium ion battery from a 
device and its stowage in the passenger cabin. PHMSA intends to address 
remaining Part 8 and Sec.  175.10 revisions, including wheelchairs and 
other mobility aids powered by nickel metal hydride batteries, in a 
separate rulemaking under Docket PHMSA-2012-0027 (HM-215L).
    The ICAO Technical Instructions and the HMR limit lithium ion 
batteries used to power portable electronic devices and medical devices 
to 160 watt-hours and 25 grams aggregate equivalent lithium content, 
respectively. Additionally, the ICAO Technical Instructions and the HMR 
limit any spare lithium ion batteries used to power portable electronic 
devices and medical devices to carry-on baggage only. At its 23rd 
Meeting, the DGP was informed of lithium ion batteries developed for 
wheelchairs and other mobility aids which did not exceed 160 watt-hours 
(13.5 grams aggregate equivalent lithium content). Therefore, the DGP 
adopted a proposal introduced by the International Air Transport 
Association (IATA) to include spare lithium ion batteries for battery-
powered wheelchairs and other mobility aids in Part 8 consistent with 
the provisions for spare lithium ion batteries used to power portable 
electronic devices and medical devices. In this NPRM, PHMSA is 
proposing similar provisions by revising Sec.  175.10(a)(17) of the 
HMR.
    The DGP was also informed of new mobility aid designs which require 
the lithium ion battery to be removed from the device to permit 
efficient and effective stowage and transport of the mobility aid in 
the cargo compartment of the aircraft. The DGP agreed it would be safer 
to require that the removed lithium ion battery be carried in the 
passenger cabin rather than being stowed as checked baggage with the 
mobility aid. Subsequently, at the same meeting, the DGP was informed 
of mobility aid designs equipped with lithium ion batteries, which 
required removal for stowage (e.g., collapsible), that exceed the 160 
watt-hour limit (13.5 grams aggregate equivalent lithium content). The 
DGP Panel therefore adopted an upper limit of 300 watt-hours (25 grams 
aggregate equivalent lithium content) for batteries which must be 
removed and carried aboard in the passenger cabin. The DGP Panel 
agreed, that when applicable, the battery must be removed by the user. 
Because the HMR currently places an upper limit on such batteries to 25 
grams aggregate equivalent lithium content (300 watt-hours), no 
corresponding revision to Sec.  175.10(a)(17) of the HMR is necessary.
    Therefore, in this NPRM, PHMSA proposes to amend the HMR for 
consistency with the ICAO DGP/23 Panel recommendations. This NPRM also 
proposes to clarify and correct some related amendments adopted in the 
original January 19, 2011 final rule. See the Section-by-Section 
discussion of specific amendments being proposed in Sec.  175.10 in 
Section V. of this preamble.

[[Page 31279]]

IV. Administrative Appeal Submitted in Response to the HM-231 Final 
Rule

    In this notice, PHMSA responds to an administrative appeal 
submitted in response to a final rule published February 2, 2010 (HM-
231; 75 FR 5376) that adopted miscellaneous amendments to packaging 
provisions in the HMR. The final rule revised recordkeeping 
requirements in Sec.  173.22 for shipper retention of manufacturer 
notification (including closure instructions) and required shippers to 
maintain a packaging's manufacturer notification (including closure 
instructions) for 365 days subsequent to offering the package for 
transportation. The final rule also revised Sec.  178.2(c) to 
strengthen manufacturer notification requirements and to allow them 
greater flexibility in how they provide the notification. The final 
rule was effective on October 1, 2010.
    On March 3, 2010, we received an administrative appeal from DGAC 
requesting that PHMSA delay the effective date of the final rule for 
two years to provide sufficient time for packaging manufacturers to 
review their current packaging design manufacturer notification 
(including closure instructions) for compliance with the new 
requirement to ensure closure instructions provide a repeatable method 
of closing the packaging consistent with the way it was closed prior to 
performing qualification testing on the packaging design.
    We did not grant the DGAC administrative appeal in our September 
30, 2010 final rule (75 FR 60333) that responded to a petition for 
rulemaking and several other administrative appeals. Specifically, we 
did not grant DGAC's request for a two-year extension of the effective 
date; however, we did agree that aligning the review and preparation of 
a packaging's manufacturer notification with its periodic retest 
merited consideration because it would facilitate the packaging 
manufacturer's and distributor's compliance with new packaging 
manufacturer notification requirements adopted in the rule. Thus, in 
the September 30, 2010 final rule, we revised the recordkeeping 
requirement from 365 days to a two-year period for combination 
packagings and a one-year period for single packagings consistent with 
a typical packaging design's periodic retest frequency.
    DGAC submitted a follow-up administrative appeal objecting to our 
revision in the September 30, 2010 final rule to the recordkeeping 
requirement for manufacturer notification and requested that PHMSA 
return the recordkeeping duration to the 365 days adopted under the 
February 2, 2010 final rule. DGAC stated that while the preamble 
discussion in the September 30, 2010 final rule recognized its concerns 
in the initial appeal, the regulatory response did not grant its 
request for the extension of the effective date and, instead, created a 
recordkeeping requirement of two years that is more difficult to comply 
with than the original one-year (365-day) requirement in the February 
2, 2010 final rule. DGAC claimed there is no need for a shipper to 
retain a copy of a packaging's manufacturer notification (including 
closure instructions) for longer than 365 days. DGAC also asked whether 
the words ``supporting documentation'' were intentionally omitted from 
the September 30, 2011 final rule revision to 49 CFR 178.601(g)(1). 
Further, DGAC requested that PHMSA amend 49 CFR 171.14 to extend the 
effective date of the February 2, 2010 final rule to October 1, 2011.
    PHMSA response.
    Although not stated clearly in both final rules, it was our intent 
that the new manufacturer notification requirements apply to all 
applicable hazardous materials packagings manufactured on or after 
October 1, 2010. Packagings manufactured before this date should 
already conform to HMR performance standards for their design type in 
effect at the time of manufacture. As we stated in the February 2, 2010 
final rule, we revised this regulation to address an increase in 
hazardous materials releases as a result of improperly closed 
packagings. In our opinion, review of existing manufacturer 
notifications for packaging designs that should already be in 
compliance with the HMR would involve much less effort than DGAC 
described in its administrative appeal. We also believe sufficient time 
has elapsed since the February 2, 2010 final rule was published to 
complete this task and any additional time is not warranted.
    Therefore, in this notice, we are denying DGAC's appeal to extend 
the effective date of the rule. However, we are proposing to amend 
Sec.  178.2(c)(1)(ii) of the HMR based on DGAC's request to revert back 
to the original recordkeeping retention duration for manufacturer 
notification to the 365-day period adopted in the February 2, 2010 
final rule. Additionally, PHMSA is proposing to amend Sec.  
173.22(a)(4)(ii) by requiring a shipper to retain manufacturer 
notification (including closure instructions) for a period of 90 days 
once a package is offered to the initial carrier for transportation in 
commerce.
    In this NPRM, PHMSA is proposing to clarify that only bulk 
packagings and cylinders manufactured in accordance with Part 178 of 
the HMR are excepted from the manufacturer notification (including 
closure instructions) retention requirements specified in Sec.  
173.22(a)(4) if such information is permanently embossed or printed on 
the packaging. This exception was only provided with such packagings in 
mind and was originally adopted as a result of public comment.
    For clarification, we did not revise Sec.  178.601(g)(1) in the 
September 30, 2010 final rule as DGAC asserts; we did correct 
punctuation in Sec. Sec.  178.601(g)(8)(xiii)(C) and (g)(8)(xiii)(D), 
which do not include references to supporting documentation. Moreover, 
we note that the requirement for supporting documentation adopted in 
the February 2, 2010 final rule remains in Sec.  178.601(g)(1) with the 
statement that the method used to determine whether the inner 
packaging, including closure, of a Variation 1 packaging maintains an 
equivalent level of performance to the originally tested packaging 
design must be ``documented in writing by the person certifying 
compliance and retained in accordance with paragraph (l)'' of Sec.  
178.601. Therefore, no further revision of this paragraph is needed or 
is proposed in this notice.

V. Section-by-Section Review of Changes

Part 171

Section 171.16
    This section prescribes written hazardous material incident report 
requirements. In this notice, we are proposing to revise the paragraph 
(d) exceptions to reflect the eventual phase-out of the ORM-D system on 
December 31, 2015 and to extend the exception provided for material 
classed as ORM-D to hazardous materials authorized for transportation 
as limited quantity material under Subparts C through E and Subpart G 
of Part 173 of the HMR. This exception is not applicable to air 
transportation. See section II.E for a comprehensive discussion of the 
proposed changes.

Part 172

Section 172.200
    Section 172.200 prescribes the applicability of shipping paper 
requirements for the transportation of hazardous materials. In the 
January 19 final rule, paragraph (b)(3) was revised to remove the 
exceptions for ORM-D material in conformance with revisions

[[Page 31280]]

made to the limited quantity requirements. In this notice, we are 
proposing to revise the effective date for expiration of the 
authorization to reclassify to the ORM-D hazard class from December 31, 
2013 to December 31, 2015 in response to the appeal submitted by HDMA. 
Additionally, we propose to revise paragraph (b)(3) to correct the 
shipping paper applicability for a vessel shipment of ORM-D material 
that was inadvertently adopted in the January 19, 2011 final rule. 
Additionally, we want to emphasize that limited quantity shipments 
offered for transportation by air or vessel are required to be 
accompanied by shipping papers as adopted in the January 19, 2011 final 
rule.
Section 172.315
    Section 173.315 prescribes the requirements for marking packages 
containing limited quantity material. Based on administrative appeals 
submitted and requests to make the requirements for limited quantity 
marking clearer, we propose to revise Sec.  172.315 to allow the 
continued use of alternative limited quantity markings (i.e., square-
on-point with Identification Number) marking for the same duration 
offered for continued use of the ORM-D marking, that is, until December 
31, 2015. The expiration date for the square-on-point with 
Identification Number marking remains December 31, 2012 for air 
transportation.
Section 172.316
    Section 172.316 prescribes marking requirements for packages 
containing materials classed as ORM-D and ORM-D-AIR. As adopted in the 
January 19 final rule, the marking prescribed in this section will no 
longer be authorized for limited quantities effective January 1, 2014. 
In this document, we are proposing to revise the effective date for 
expiration of the authorization to reclassify to the ORM-D hazard class 
from December 31, 2013 to December 31, 2015 in response to the appeal 
submitted by HDMA. The expiration date for the ORM-D-AIR hazard class 
marking remains December 31, 2012 for air transportation.

Part 173

Section 173.6
    This section prescribes exceptions from certain requirements of the 
HMR for the transportation of hazardous materials defined as material 
of trade when transported by motor vehicle. See Sec.  171.8. In this 
notice, we are proposing to revise the paragraph (d) exceptions to 
reflect the phase-out of the ORM-D system on December 31, 2015 and 
extend the exception provided ORM-D material to hazardous materials 
authorized for transportation as limited quantity material under 
Subparts C through E and Subpart G of Part 173 of the HMR. See section 
II.F for a comprehensive discussion of these proposed changes.
Section 173.22
    Section 173.22 prescribes shipper responsibilities. In this 
document, PHMSA responds to an administrative appeal submitted in 
response to a final rule published February 2, 2010 (HM-231; 75 FR 
5376) that adopted miscellaneous amendments to packaging provisions in 
the HMR. The final rule revised recordkeeping requirements in Sec.  
173.22 for shipper retention of manufacturer notification (including 
closure instructions). The amendments adopted required shippers to 
maintain a packaging's manufacturer notification (including closure 
instructions) for 365 days subsequent to offering the package for 
transportation.
    In this notice, PHMSA is proposing to revise Sec.  173.22(a)(4) to 
clarify that only bulk packagings and cylinders manufactured in 
accordance with Part 178 of the HMR are excepted from the manufacturer 
notification (including closure instructions) retention requirements 
specified in Sec.  173.22(a)(4) (shipper responsibilities) if such 
information is permanently embossed or printed on the packaging. 
Additionally, we are proposing to revise the same paragraph to require 
that, if applicable, a shipper only be required to retain the packaging 
design's manufacturer notification (including closure instructions) for 
90 days once offered to the initial carrier for transportation. See 
Section III of this preamble for a more comprehensive discussion.
Section 173.25
    This section prescribes requirements for the transportation of 
authorized packages in overpacks used for protection or convenience of 
handling or to consolidate packages. In this document, we are proposing 
to revise Sec.  173.25(a)(6) to clarify that all markings on each 
package containing a limited quantity or ORM-D material in an overpack 
are not required to be visible, but rather, that markings 
representative of each hazardous material in the overpack are visible 
as specified in Sec.  173.25(a)(2) and (a)(3). Additionally, we are 
proposing to correct an error made in the January 19, 2011 final rule 
by revising paragraphs (a)(6) and the new (a)(7) applicable to 
overpacked packages of limited quantities, ORM-D, and excepted quantity 
materials to reaffirm that an overpack is only required to be marked 
with the word ``OVERPACK'' if specification markings, when required, 
are not visible.
    Because these amendments were not proposed in the original NPRM, 
nor were they adopted in the January 19, 2011 final rule, we believe 
notice and comment are appropriate. We are therefore granting the 
administrative appeals and soliciting public comment until July 24, 
2012 for the purpose of gathering information to help determine if 
Sec.  173.25(a)(6) and (a)(7) should be revised to clarify that all 
markings on each package containing a limited quantity, ORM-D, or 
excepted quantity material in an overpack, are not required to be 
visible; rather, all markings representative of each hazardous material 
in the overpack are to be visible and whether the required use of the 
``OVERPACK'' mark should be expanded in accordance with the various 
international standards.
Section 173.63
    Section 173.63 specifies packaging exceptions for certain Division 
1.4S explosive articles authorized for reclassification and transport 
as ORM-D material. Such articles in Division 1.4S may continue to be 
reclassed as ORM-D and offered for transportation until December 31, 
2013. Thus, in this notice we are proposing to revise the effective 
date for expiration of the authorization to reclassify to the ORM-D 
hazard class from December 31, 2013 to December 31, 2015 in response to 
the appeal submitted by HDMA.
Section 173.144
    Section 173.144 defines ``Other Regulated Materials, ORM-D.'' In 
this notice, we are proposing to revise the effective date for 
expiration of the ORM-D hazard class from December 31, 2013 to December 
31, 2015 in response to the appeal submitted by HDMA.
Sections 173.150, 173.151, 173.152, 173.153, 173.154, 173.155 and 
173.306
    Sections 173.150 through 173.155 prescribe the exceptions for 
certain Class 3, 8 and 9 and Division 2.1, 2.2, 4.1, 4.2, 5.1, 5.2, 6.1 
hazardous materials under the HMR. In response to HDMA's administrative 
appeal, in this notice, we are proposing to revise the effective date 
for expiration of the authorization to reclassify to the ORM-D hazard 
class from December 31, 2013 to December 31, 2015 in each of these 
sections' consumer commodity paragraphs, where applicable.

[[Page 31281]]

Section 173.156
    Section 173.156 prescribes exceptions for the Other Regulated 
Materials, ORM-D hazard class. In this notice, we are proposing to 
revise the effective date for expiration of the authorization to 
reclassify to the ORM-D hazard class from December 31, 2013 to December 
31, 2015 in response to HDMA's administrative appeal.
Section 173.161
    Section 173.161 prescribes packaging requirements for chemical kits 
and first aid kits containing small amounts of hazardous materials. In 
this notice, we are proposing to revise the effective date for 
expiration of the authorization to reclassify to the ORM-D hazard class 
from December 31, 2013 to December 31, 2015 in response to HDMA's 
administrative appeal.
Section 173.165
    In the January 19 final rule, a new section 173.165 was added to 
prescribe packaging and other requirements for ``Polyester resin kits, 
UN3269'' formerly contained in Sec.  172.102, special provision 40 and 
Sec.  173.152(b)(4) of the HMR. In this notice, we are proposing to 
revise the effective date for expiration of the authorization to 
reclassify to the ORM-D hazard class from December 31, 2013 to December 
31, 2015 in response to HDMA's administrative appeal.
Section 173.167
    In the January 19 final rule, a new section 173.167 was added to 
indicate authorized materials and quantity limits for articles and 
substances that may be described as ``ID8000, Consumer commodity,'' 
eligible for transport by aircraft and authorized transportation by all 
modes. This notice addresses inconsistencies with the ICAO Technical 
Instructions brought to our attention in appeals submitted in response 
to the final rule. Appellants are correct in their assessment of the 
inconsistencies that exist between the consumer commodity provisions 
adopted in the HMR and the ICAO Technical Instructions. We are granting 
their administrative appeals and soliciting public comment for the 
limited purpose of gathering any information to help determine if we 
should revise the Sec.  173.167 amendments adopted in the final rule 
consistent with Packing Instruction Y963 of the ICAO Technical 
Instructions.
Section 173.230
    Section 173.230 prescribes the requirements for fuel cells offered 
for transportation by all modes. In paragraph (g) of the final rule, 
PHMSA adopted limited quantity provisions for such articles by aircraft 
consistent with the ICAO Technical Instructions. In paragraph (h), 
PHMSA also adopted a prohibition of reclassification to ``Consumer 
commodity, ORM-D-AIR'' for transportation by aircraft. In this notice, 
we are proposing to revise the effective date for expiration of the 
authorization to reclassify to the ORM-D hazard class for other than 
air transportation from December 31, 2013 to December 31, 2015 in 
response to HDMA's administrative appeal.
Section 173.306
    Section 173.306 prescribes requirements for limited quantity of 
compressed gases. In paragraph (i)(2), we are proposing to revise the 
effective date for expiration of the authorization to reclassify to the 
ORM-D hazard class from December 31, 2013 to December 31, 2015 in 
response to HDMA's administrative appeal.
Section 173.309
    Section 173.309 prescribes requirements for fire extinguishers. In 
this NPRM, we are proposing to revise the entire section for clarity. 
First, we are proposing to move the limited quantity requirements and 
exceptions from paragraph (a) to paragraph (b) as we typically indicate 
regulation first in most sections followed by any exceptions to that 
regulation. Second, we are proposing to add regulatory text from Sec.  
172.102(c)(1) Special provision 18 to revised paragraph (a) that 
prescribes the conditions when specification cylinders may be 
described, offered and transported in commerce as fire extinguishers. 
Further, we solicit public comment on whether we should consider 
allowing UN specification cylinders as fire extinguishers in Sec.  
173.309. Lastly, we are proposing to revise paragraph (b) by excepting 
a limited quantity package of fire extinguishers from shipping papers 
when transported by highway or rail if marked in accordance with Sec.  
172.315. This exception is provided in addition to the existing HMR 
exceptions from labeling (unless offered for transportation by 
aircraft), placarding, Part 174 and Part 177 for limited quantity 
packages of fire extinguishers.

Part 175

Section 175.10
    In the January 19, 2011 final rule, we amended the HMR to align 
with international standards by designating paragraphs (a)(17) and 
(a)(18) as paragraphs (a)(18) and (a)(19) and by adding a new paragraph 
(a)(17) that authorized a mobility aid such as a wheelchair, powered by 
a lithium ion battery, to be transported aboard a passenger-carrying 
aircraft.
    For consistency with the wheelchair or other battery-powered 
mobility aid provisions in Sec.  175.10(a)(15) and (a)(16), and the 
provisions provided for the carriage of portable electronic devices 
powered by lithium ion batteries in Sec.  175.10(a)(17) (now Sec.  
175.10(a)(18)), the final rule merged applicable provisions for the 
transportation of lithium ion battery-powered mobility aids into a new 
Sec.  175.10(a)(17). We stated that removal of the battery may be 
necessary based on results of the required visual inspection or if the 
mobility aid was to be offered to the operator as checked baggage. It 
was not our intent to require an operator or passenger to remove a 
properly secured lithium ion battery from a mobility aid that was not 
specifically designed to allow its batteries to be removed. Further, it 
is the responsibility of the operator to determine if the wheelchair or 
other mobility aid is designed to have its battery removed by the user. 
Information provided by the user or visual inspection may be used in 
this process. Therefore, a revision of certain amendments adopted in 
Sec.  175.10(a)(17) of the final rule is required and are as follows:
     A mobility aid such as a wheelchair, powered by a lithium 
ion battery, must be transported as checked baggage aboard an aircraft. 
This requirement is consistent with the 14 CFR Part 382 provisions 
under the Air Carrier Access Act (ACAA);
     Provided the wheelchair or other mobility aid is not 
specifically designed to allow its lithium ion battery to be removed, 
battery removal is not required;
     If the battery is to remain installed, a wheelchair or 
other mobility aid may be loaded and stowed in any orientation 
determined by the operator necessary to prevent unintentional 
activation of the mobility aid or short circuiting of the battery and 
is equally protected as the upright orientation would provide;
     The wheelchair or other mobility aid must be protected 
from damage by the movement of baggage, mail, service items, or other 
cargo; and
     As adopted in the January 19, 2011 final rule, a lithium 
ion battery specifically designed to be removed from a mobility aid 
(e.g., collapsible) by the user and any spare batteries must be 
transported in carry-on baggage in accordance with paragraph (vii). The 
carry-on battery must not exceed 25 grams aggregate equivalent lithium 
content and a maximum of one spare

[[Page 31282]]

battery not exceeding 25 grams aggregate equivalent lithium content or 
two spares not exceeding 13.5 grams aggregate equivalent lithium 
content each may be carried on.

Part 176

Section 176.905
    Section 176.905 prescribes specific requirements for motor vehicles 
or mechanical equipment powered by internal combustion engines that are 
offered for transportation and transported by vessel. In the January 
19, 2011 final rule, PHMSA should have revised the paragraph (i) 
introductory text to clarify that if any of the exceptions criteria 
were met, the articles were excepted from the requirements of the HMR. 
Additionally, PHMSA is proposing in this notice to remove the heading 
for each exception criterion in paragraph (i) for clarity. They are not 
necessary and have resulted in confusion among our stakeholders as some 
of the headings were perceived to be inconsistent with the IMDG Code.

Part 178

Section 178.2
    Section 178.2 prescribes HMR applicability and responsibility 
required of packaging manufacturers. In this notice, PHMSA responds to 
an administrative appeal submitted in response to a final rule 
published February 2, 2010 (HM-231; 75 FR 5376) that adopted 
miscellaneous amendments to packaging provisions in the HMR. The final 
rule revised recordkeeping requirements in Sec.  173.22 for shipper 
retention of manufacturer notification (including closure 
instructions). The amendments adopted required shippers to maintain a 
packaging manufacturer's notification (including closure instructions) 
for 365 days subsequent to offering the package for transportation. The 
final rule also revised Sec.  178.2(c) to strengthen manufacturer 
notification requirements and to allow manufacturers greater 
flexibility in how they provide the notification. The final rule was 
effective on October 1, 2010.
    In response to a misunderstanding of an administrative appeal, 
PHMSA revised the recordkeeping requirement from 365 days to a two-year 
period for combination packagings and a one-year period for single 
packagings consistent with a typical packaging design's periodic retest 
frequency. Subsequently, DGAC submitted another administrative appeal 
requesting PHMSA revise the notification retention requirements in 
Sec.  178.2(c)(1)(ii) back to the original one year from date of 
issuance. Thus, in this notice we are proposing to amend the HMR based 
on DGAC's request to revert back to the original recordkeeping 
retention duration for manufacturer notification to one year.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under the following statutory authorities:
    1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to 
prescribe regulations for the safe transportation, including security, 
of hazardous material in intrastate, interstate, and foreign commerce. 
This NPRM responds to administrative appeals of certain amendments 
adopted in final rule PHMSA-2009-0126 (HM-215K) published on January 
19, 2011 (76 FR 3308). Additionally, it responds to administrative 
appeals of certain amendments adopted in a final rule PHMSA-2006-25736 
(HM-231) published on February 2, 2010 (75 FR 5376).
    2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to 
ensure that, to the extent practicable, regulations governing the 
transportation of hazardous materials in commerce are consistent with 
standards adopted by international authorities.

B. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This notice is not considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and, therefore, was not reviewed 
by the Office of Management and Budget. This notice is not considered a 
significant rule under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034). Additionally, E.O. 13563 
supplements and reaffirms E.O. 12866, stressing that, to the extent 
permitted by law, an agency rulemaking action must be based on benefits 
that justify its costs, impose the least burden, consider cumulative 
burdens, maximize benefits, use performance objectives, and assess 
available alternatives.
    This notice applies to offerors and carriers of hazardous 
materials, such as chemical manufacturers, chemical users and 
suppliers, packaging manufacturers, distributors, radiopharmaceutical 
companies, and training companies. Benefits resulting from the adoption 
of the amendments in this notice include enhanced transportation safety 
resulting from the consistency of domestic and international hazard 
communications and continued access to foreign markets by U.S. 
manufacturers of hazardous materials. A regulatory evaluation is 
available for review in the public docket for this rulemaking.
    In most instances, the amendments in this rulemaking reduce 
compliance costs of the regulated population, and it is likely that 
these changes are possible without reducing public safety. Although we 
were not able to quantify all of the costs and benefits for most of the 
amendments, the net benefits of those we were able to quantify are 
approximately $3.5 million per year. The following table summarizes the 
costs and benefits for the different amendments being proposed:

                                          Summary of Costs and Benefits
----------------------------------------------------------------------------------------------------------------
  Issue addressed by amendments to
                HMR                           Costs                 Benefits                 Net benefit
----------------------------------------------------------------------------------------------------------------
Domestic transportation of ORM-D     Extending the           Extending the           $7.3 million over 2 years.
 material.                            effective date of       effective date of
                                      eliminating the ORM-D   eliminating the ORM-D
                                      system will result in   system will allow
                                      minor short-term        companies to deplete
                                      costs on shippers and   stocks of hazard
                                      carriers who will       communication
                                      have to recognize and   materials and pre-
                                      comply with two         printed packaging
                                      marking systems over    with the ORM-D
                                      a longer transition     markings on them.
                                      period.                 Clarifications will
                                                              reduce compliance
                                                              costs that result
                                                              from confusion and
                                                              misinterpretation of
                                                              the regulatory
                                                              requirements.

[[Page 31283]]

 
Use of the Square-on-Point and ID    Extending the           Extending the           Positive.
 Number Limited Quantity Marking.     effective date of       effective date of
                                      eliminating the         eliminating the
                                      revised limited         revised limited
                                      quantity marking        quantity marking
                                      system will result in   system will allow
                                      minor short-term        companies to deplete
                                      costs on shippers and   stocks of hazard
                                      carriers who will       communication
                                      have to recognize and   materials and pre-
                                      comply with two         printed packaging
                                      marking systems over    with the ORM-D
                                      a longer transition     markings on them.
                                      period.                 Clarifications will
                                                              reduce compliance
                                                              costs that result
                                                              from confusion and
                                                              misinterpretation of
                                                              the regulatory
                                                              requirements.
Fuel Cell Cartridges Transported in  Costs are expected to   The proposal is         $155,766 per year.
 Passenger Checked Baggage.           be negligible.          expected to reduce
                                                              security costs for
                                                              locating and removing
                                                              fuel cells from
                                                              passenger checked
                                                              baggage, as well as
                                                              reduce passenger
                                                              confusion and the
                                                              cost to consumers of
                                                              replacing confiscated
                                                              fuel cell cartridges.
Consumer Commodity Transport by      No costs are            Clarifications will     Positive.
 Aircraft.                            anticipated as the      reduce compliance
                                      proposal provides       costs that result
                                      clarification and       from confusion and
                                      guidance for existing   misinterpretation of
                                      requirements adopted    the regulatory
                                      in the January 19,      requirements.
                                      2011 Final Rule.
Incident Reporting for Limited       No costs are            Increased exceptions    Positive.
 Quantity Material.                   anticipated.            for written reporting
                                                              requirements will
                                                              reduce the regulatory
                                                              burden on shippers/
                                                              carriers of limited
                                                              quantity materials.
Materials of Trade Exceptions......  No costs are            Increased materials of  Positive.
                                      anticipated.            trade exceptions will
                                                              reduce the regulatory
                                                              burden on shippers/
                                                              carriers of limited
                                                              quantity materials.
Recordkeeping Requirements for       Costs are expected to   Reduced costs that      $3.3 million per year.
 Manufacturer Notification*.          be negligible.          shippers will incur
                                                              as a result of having
                                                              to retain records for
                                                              only 90 days as
                                                              opposed to 730 days.
----------------------------------------------------------------------------------------------------------------
* Administrative appeals submitted in response to the HM-231 Final Rule.

C. Executive Order 13132

    This notice has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''), and the 
President's memorandum on ``Preemption'' published in the Federal 
Register on May 22, 2009 (74 FR 24693). If adopted in a final rule, it 
would preempt State, local, and Indian tribe requirements but does not 
propose any regulation that has substantial direct effects on the 
States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous material transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that 
preempts State, local, and Indian tribe requirements for certain 
subjects. The subjects are:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This notice addresses all the covered subject items above and 
preempts State, local, and Indian tribe requirements not meeting the 
``substantively the same'' standard. This notice is necessary to 
incorporate revisions to the HMR based on administrative appeals 
submitted in response to the January 19, 2011 final rule, effective 
January 1, 2011. Federal hazardous materials transportation law 
provides at section 5125(b)(2) that, if DOT issues a regulation 
concerning any of the covered subjects, DOT must determine and publish 
in the Federal Register the effective date of Federal preemption. The 
effective date may not be earlier than the 90th day following the date 
of issuance of the final rule and not later than two years after the 
date of issuance. The effective date of Federal preemption is [DATE 90 
DAYS FROM PUBLICATION DATE OF FINAL RULE IN THE Federal Register].

D. Executive Order 13175

    This notice was analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this notice 
does not have tribal implications, does not impose substantial direct 
compliance costs, and is required by statute, the funding and 
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. We have 
completed an assessment and placed it in the docket for this 
rulemaking. Commenters are invited to address the costs and benefits of 
the amendments proposed in this notice and the potential impacts, 
positive or negative, on small businesses.
    This notice has been developed in accordance with Executive Order 
13272

[[Page 31284]]

(``Proper Consideration of Small Entities in Agency Rulemaking'') and 
DOT's procedures and policies to promote compliance with the Regulatory 
Flexibility Act to ensure that potential impacts of proposed rules on 
small entities are properly considered.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), Title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of the public and affected agencies an opportunity to comment 
on information and recordkeeping requests.
    This notice identifies a revised information collection request 
that PHMSA will submit to OMB for approval based on the requirements 
proposed in this notice. PHMSA has developed burden estimates to 
reflect proposed changes in this notice, and estimates the information 
collection and recordkeeping burden as proposed in this notice to be as 
follows:
     This notice reduces the OMB Control Number 2137-0572 
information collection burden by $1,654,384 annually.
    PHMSA will submit the revised information collection and 
recordkeeping requirements to OMB for approval.

G. Regulatory Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act

    This notice does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $141.3 
million or more to either State, local, or tribal governments, in the 
aggregate, or to the private sector, and is the least burdensome 
alternative that achieves the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and prepare a detailed statement on actions significantly affecting the 
quality of the human environment. In the January 19, 2011 final rule, 
we developed an assessment to determine the effects of these revisions 
on the environment and whether a more comprehensive environmental 
impact statement may be required. Our findings concluded that there are 
no significant environmental impacts associated with the final rule. 
Consistency in the regulations for the transportation of hazardous 
materials aids in shippers' understanding of what is required and 
permits shippers to more easily comply with safety regulations and 
avoid the potential for environmental damage or contamination. For 
interested parties, an environmental assessment was included with the 
January 19, 2011 final rule available in the public docket. 
Additionally, we do not see any significant environmental impacts 
associated with the amendments proposed in this notice regarding the 
administrative appeals submitted in response to the January 19 final 
rule. We welcome comment on this initial determination.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://www.dot.gov/privacy.html.

K. International Trade Analysis

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. For purposes of these requirements, Federal agencies 
may participate in the establishment of international standards, so 
long as the standards have a legitimate domestic objective, such as 
providing for safety, and do not operate to exclude imports that meet 
this objective. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. PHMSA participates in the establishment of 
international standards in order to protect the safety of the American 
public, and we have assessed the effects of this notice to ensure that 
it does not exclude imports that meet this objective. Accordingly, this 
rulemaking is consistent with PHMSA's obligations under the Trade 
Agreement Act, as amended.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Incorporation by reference, Labeling, Markings, Packaging and 
containers, Reporting and recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Incorporation by reference, 
Packaging and containers, Radioactive materials, Reporting and 
recordkeeping requirements, Uranium.

49 CFR Part 175

    Air carriers, Hazardous materials transportation, Incorporation by 
reference, Radioactive materials, Reporting and recordkeeping 
requirements.

49 CFR Part 176

    Hazardous materials transportation, Incorporation by reference, 
Maritime carriers, Radioactive materials, Reporting and recordkeeping 
requirements.

49 CFR Part 178

    Hazardous materials transportation, Incorporation by reference, 
Motor vehicle safety, Packaging and containers, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, PHMSA is proposing to amend 
Title 49, Subtitle B, Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.

    2. In Sec.  171.16, paragraph (d)(2)(i) is revised to read as 
follows:


Sec.  171.16  Detailed hazardous materials incident reports.

* * * * *
    (d) * * *

[[Page 31285]]

    (2) An unintentional release of a hazardous material when:
    (i) The material is--
    (A) A limited quantity material packaged under authorized 
exceptions in the Sec.  172.101 Hazardous Materials Table of this 
subchapter excluding Class 7 (radioactive) material; or
    (B) A Packing Group III material in Class or Division 3, 4, 5, 6.1, 
8, or 9;
    (ii) The material is released from a package having a capacity of 
less than 20 liters (5.2 gallons) for liquids or less than 30 kg (66 
pounds) for solids;
    (iii) The total amount of material released is less than 20 liters 
(5.2 gallons) for liquids or less than 30 kg (66 pounds) for solids; 
and
    (iv) The material is not--
    (A) Offered for transportation or transported by aircraft;
    (B) A hazardous waste; or
    (C) An undeclared hazardous material;
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS, AND SECURITY PLANS

    3. The authority citation for part 172 continues to read as 
follows:

     Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.53.

    4. In Sec.  172.200, paragraph (b)(3) is revised to read as 
follows:


Sec.  172.200  Applicability.

* * * * *
    (b) * * *
    (3) A limited quantity package unless the material is offered for 
transportation by aircraft or vessel and, until December 31, 2015, a 
package of ORM-D material authorized by this subchapter on October 1, 
2010, when offered for transportation by highway, rail or vessel.
* * * * *
    5. In Sec.  172.315, paragraph (d) is revised to read as follows:


Sec.  172.315  Limited quantities.

* * * * *
    (d) Transitional exceptions. (1) Alternative markings. Except for 
transportation by aircraft and until December 31, 2015, a package 
containing a limited quantity may continue to be marked in accordance 
with the requirements of this section in effect on October 1, 2010 
(i.e., square-on-point with identification number only) as an 
alternative to the marking required by paragraph (a) of this section.
    (2) ORM-D marked packaging. Except for transportation by aircraft 
and until December 31, 2015, a packaging marked in accordance with 
Sec.  172.316 of this part is not required to be marked with the 
limited quantity marking required by paragraph (a) of this section. For 
transportation by aircraft and until December 31, 2012, a packaging 
marked in accordance with Sec.  172.316 is not required to be marked 
with the limited quantity ``Y'' marking required by paragraph (b) of 
this section.
    6. In Sec.  172.316, paragraph (a)(2) is revised to read as 
follows:


Sec.  172.316  Packagings containing materials classed as ORM-D.

    (a) * * *
    (1) * * *
    (2) Until December 31, 2015, ORM-D for an ORM-D material that is 
packaged in accordance with Sec. Sec.  173.63, 173.150 through 173.156 
and 173.306.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    7. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.

    8. In Sec.  173.6, paragraph (a)(6) is added to read as follows:


Sec.  173.6  Materials of trade exceptions.

* * * * *
    (a) * * *
    (6) A limited quantity package prepared in accordance with 
Sec. Sec.  173.27, 173.63, 173.150, 173.151(b) and (c), 173.152, 
173.153, 173.154, 173.155, 173.161, 173.165, 173.167 and 173.306(i) of 
this subchapter. Division 4.3 substances must be prepared in accordance 
with paragraph (a)(3) of this section. Class 7 (radioactive) 
substances, instruments and articles are not authorized under the 
provisions of this section.
* * * * *
    9. In Sec.  173.22, paragraph (a)(4) is revised to read as follows:


Sec.  173.22  Shipper's responsibility.

    (a) * * *
    (4)(i) For a DOT Specification or UN standard packaging subject to 
the requirements of part 178 of this subchapter, a person must perform 
all functions necessary to bring the package into compliance with parts 
173 and 178 of this subchapter, as identified by the packaging 
manufacturer or subsequent distributor (for example, applying closures 
consistent with the manufacturer's closure instructions) in accordance 
with Sec.  178.2 of this subchapter.
    (ii) For other than a bulk packaging or a cylinder, a person must 
retain a copy of the manufacturer's notification, including closure 
instructions (see Sec.  178.2(c) of this subchapter). For a bulk 
packaging or a cylinder, a person must retain a copy of the 
manufacturer's notification, including closure instructions (see Sec.  
178.2(c) of this subchapter), unless permanently embossed or printed on 
the packaging. A copy of the manufacturer's notification, including 
closure instructions (see Sec.  178.2(c) of this subchapter), unless 
permanently embossed or printed on the packaging when applicable, must 
be made available for inspection by a representative of the Department 
upon request for at least 90 days once the package is offered to the 
initial carrier.
    (iii) When applicable, a person must retain a copy of any 
supporting documentation used to determine an equivalent level of 
performance under the selective testing variation in Sec.  
178.601(g)(1) of this subchapter. Such documentation is to be retained 
by the person certifying compliance with Sec.  178.601(g)(1) as 
specified in Sec.  178.601(l).
    10. In Sec.  173.25, paragraph (a)(6) is revised and new paragraph 
(a)(7) is added to read as follows:


Sec.  173.25  Authorized packagings and overpacks.

    (a) * * *
    (6) Limited quantities and ORM material. The overpack is marked 
with a limited quantity marking prescribed in Sec.  172.315 of this 
subchapter or, the ORM marking prescribed in Sec.  172.316 of this 
subchapter, unless a limited quantity or ORM marking representative of 
the hazardous material in the overpack is visible.
    (7) Excepted quantities. The overpack is marked with all required 
marking of Sec.  173.4a of this part unless visible.
* * * * *
    11. In Sec.  173.63, paragraph (b)(1)(ii) is revised to read as 
follows:


Sec.  173.63  Packaging exceptions.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Until December 31, 2012, a package containing such articles 
may be marked with the proper shipping name ``Cartridges, small arms'' 
or ``Cartridges, power device (used to project fastening devices)'' and 
reclassed as ``ORM-D-AIR'' material if it contains properly packaged 
articles as authorized by this subchapter on October 1, 2010.

[[Page 31286]]

Additionally, for transportation by aircraft, Cartridge, power devices 
must be successfully tested under the UN Test Series 6(d) criteria for 
reclassification as ORM-D-AIR material effective July 1, 2011. Until 
December 31, 2015, a package containing such articles may be marked 
with the proper shipping name ``Cartridges, small arms'' or 
``Cartridges, power device (used to project fastening devices)'' and 
reclassed as ``ORM-D'' material if it contains properly packaged 
articles as authorized by this subchapter on October 1, 2010.
* * * * *
    12. Section 173.144 is revised to read as follows:


Sec.  173.144  Other Regulated Material (ORM)--Definitions.

    Until December 31, 2015 and for the purposes of this subchapter, 
``ORM-D material'' means a material such as a consumer commodity, 
cartridges, small arms or cartridges, power devices which, although 
otherwise subject to the regulations of this subchapter, presents a 
limited hazard during transportation due to its form, quantity and 
packaging. The article or substance must be a material for which 
exceptions are provided in Column (8A) of the Sec.  172.101 Hazardous 
Materials Table.
    13. In Sec.  173.150, paragraph (c) is revised to read as follows:


Sec.  173.150  Exceptions for Class 3 (flammable and combustible 
liquids).

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter, may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
* * * * *
    14. In Sec.  173.151, paragraphs (b) and (c) are revised to read as 
follows:


Sec.  173.151  Exceptions for Class 4.

* * * * *
    (b) Limited quantities of Division 4.1. Limited quantities of 
flammable solids (Division 4.1) in Packing Groups II and III and, where 
authorized by this section, charcoal briquettes (Division 4.2) in 
Packing Group III, are excepted from labeling requirements unless the 
material is offered for transportation or transported by aircraft, and 
are excepted from the specification packaging requirements of this 
subchapter when packaged in combination packagings according to this 
paragraph. If authorized for transportation by aircraft, the package 
must also conform to applicable requirements of Sec.  173.27 of this 
part (e.g., authorized materials, inner packaging quantity limits and 
closure securement) and only hazardous material authorized aboard 
passenger-carrying aircraft may be transported as a limited quantity. A 
limited quantity package that conforms to the provisions of this 
section is not subject to the shipping paper requirements of subpart C 
of part 172 of this subchapter, unless the material meets the 
definition of a hazardous substance, hazardous waste, marine pollutant, 
or is offered for transportation and transported by aircraft or vessel, 
and is eligible for the exceptions provided in Sec.  173.156 of this 
part. In addition, shipments of limited quantities are not subject to 
subpart F (Placarding) of part 172 of this subchapter. Each package 
must conform to the packaging requirements of subpart B of this part 
and may not exceed 30 kg (66 pounds) gross weight. Except for 
transportation by aircraft, the following combination packagings are 
authorized:
    (1) For flammable solids in Packing Group II, inner packagings not 
over 1.0 kg (2.2 pounds) net capacity each, packed in a strong outer 
packaging.
    (2) For flammable solids in Packing Group III, inner packagings not 
over 5.0 kg (11 pounds) net capacity each, packed in a strong outer 
packaging.
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package (including Charcoal briquettes (NA1361)) containing a 
``consumer commodity'' as defined in Sec.  171.8 of this subchapter, 
may be renamed ``Consumer commodity'' and reclassed as ORM-D or, until 
December 31, 2012, as ORM-D-AIR material and offered for transportation 
and transported in accordance with the applicable provisions of this 
subchapter in effect on October 1, 2010. For transportation by 
aircraft, the maximum net mass for Charcoal briquettes (NA1361) is 25 
kg per package.
* * * * *
    15. In Sec.  173.152, paragraph (c) is revised to read as follows:


Sec.  173.152  Exceptions for Division 5.1 (oxidizers) and Division 5.2 
(organic peroxides).

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter, may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
    16. In Sec.  173.153, paragraph (c) is revised to read as follows:


Sec.  173.153  Exceptions for Division 6.1 (poisonous material).

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package of poisonous material in Packing Group III or a drug 
or medicine in Packing Group II or III that is also a ``consumer 
commodity'' as defined in Sec.  171.8 of this subchapter, may be 
renamed ``Consumer commodity'' and reclassed as ORM-D or, until 
December 31, 2012, as ORM-D-AIR material and offered for transportation 
and transported in accordance with the applicable provisions of this 
subchapter in effect on October 1, 2010.
    17. In Sec.  173.154, paragraph (c) is revised to read as follows:


Sec.  173.154  Exceptions for Class 8 (corrosive material).

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter, may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
* * * * *
    18. In Sec.  173.155, paragraph (c) is revised to read as follows:


Sec.  173.155  Exceptions for Class 9 (miscellaneous hazardous 
materials).

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter, may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
    19. Section 173.156 is revised to read as follows:


Sec.  173.156  Exceptions for limited quantity and ORM.

    (a) Exceptions for hazardous materials shipments in the following 
paragraphs

[[Page 31287]]

are permitted only if this section is referenced for the specific 
hazardous material in the Sec.  172.101 Table or in a packaging section 
in this part.
    (b) Packagings for limited quantity and ORM-D are specified 
according to hazard class in Sec. Sec.  173.150 through 173.155 and in 
173.306 and 173.309(b). In addition to exceptions provided for limited 
quantity and ORM-D materials elsewhere in this part, the following are 
provided:
    (1) Strong outer packagings as specified in this part, marking 
requirements specified in subpart D of part 172 of this subchapter, and 
the 30 kg (66 pounds) gross weight limitation are not required for 
packages of limited quantity materials marked in accordance with Sec.  
172.315 of this subchapter, or, until December 31, 2015, materials 
classed and marked as ORM-D and described as a Consumer commodity, as 
defined in Sec.  171.8 of this subchapter, when--
    (i) Unitized in cages, carts, boxes or similar overpacks;
    (ii) Offered for transportation or transported by:
    (A) Rail;
    (B) Private or contract motor carrier; or
    (C) Common carrier in a vehicle under exclusive use for such 
service; and
    (iii) Transported to or from a manufacturer, a distribution center, 
or a retail outlet, or transported to a disposal facility from one 
offeror.
    (2) The 30 kg (66 pounds) gross weight limitation does not apply to 
packages of limited quantity materials marked in accordance with Sec.  
172.315 of this subchapter, or, until December 31, 2015, materials 
classed and marked as ORM-D and described as a Consumer commodity, as 
defined in Sec.  171.8 of this subchapter, when offered for 
transportation or transported by highway or rail between a 
manufacturer, a distribution center, and a retail outlet provided--
    (i) Inner packagings conform to the quantity limits for inner 
packagings specified in Sec. Sec.  173.150(b), 173.152(b), 173.154(b), 
173.155(b), 173.306(a) and (b), and 173.309(b), as appropriate;
    (ii) The inner packagings are packed into corrugated fiberboard 
trays to prevent them from moving freely;
    (iii) The trays are placed in a fiberboard box which is banded and 
secured to a wooden pallet by metal, fabric, or plastic straps, to form 
a single palletized unit;
    (iv) The package conforms to the general packaging requirements of 
subpart B of this part;
    (v) The maximum net quantity of hazardous material permitted on one 
palletized unit is 250 kg (550 pounds); and
    (vi) The package is properly marked in accordance with Sec.  
172.315 or, until December 31, 2015, Sec.  172.316 of this subchapter.
    20. In section 173.161, paragraph (d)(2) is revised to read as 
follows:


Sec.  173.161  Chemical kits and first aid kits.

* * * * *
    (d) * * *
    (2) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
* * * * *
    21. In section 173.165, paragraph (c) is revised to read as 
follows:


Sec.  173.165  Polyester resin kits.

* * * * *
    (c) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
    22. Section 173.167 is revised to read as follows:


Sec.  173.167  Consumer commodities.

    (a) Effective January 1, 2013, a ``consumer commodity'' (see Sec.  
171.8 of this subchapter) when authorized transportation by aircraft 
may only include articles or substances of Class 2 (non-toxic aerosols 
only), Class 3 (Packing Group II and III only), Division 6.1 (Packing 
Group III only), UN3077, UN3082, UN3175, UN3334, and UN3335, provided 
such materials do not have a subsidiary risk and are authorized aboard 
a passenger-carrying aircraft. Consumer commodities are excepted from 
the specification outer packaging requirements of this subchapter. 
Packages prepared under the requirements of this section may be offered 
for transportation and transported by all modes. Additionally, the 
following apply:
    (1) Inner and outer packaging quantity limits. (i) Non-toxic 
aerosols, as defined in Sec.  171.8 of this subchapter and constructed 
in accordance with Sec.  173.306 of this part, in non-refillable, non-
metal containers not exceeding 120 mL (4 fluid ounces) each, or in non-
refillable metal containers not exceeding 820 mL (28 ounces) each, 
except that flammable aerosols may not exceed 500 mL (16.9 ounces) 
each;
    (ii) Liquids, in inner packagings not exceeding 500 mL (16.9 
ounces) each;
    (iii) Solids, in inner packagings not exceeding 500 g (1.0 pounds) 
each; or
    (iv) Any combination thereof not to exceed 30 kg (66 pounds) gross 
weight as prepared for shipment.
    (2) Closures. Friction-type closures must be secured by secondary 
means. Examples of such methods include: adhesive tape, friction 
sleeves, welding or soldering, positive locking wires, locking rings, 
induction heats seals, and child-resistant closures. The body and 
closure of any packaging must be constructed so as to be able to 
adequately resist the effects of temperature and vibration occurring in 
conditions normally incident to air transportation. The closure device 
must be so designed that it is unlikely that it can be incorrectly or 
incompletely closed.
    (3) Absorbent material. Inner packagings must be tightly packaged 
in strong outer packagings. Absorbent and cushioning material must not 
react dangerously with the contents of inner packagings. Fragile 
receptacles containing liquids of Class 3 or Division 6.1, sufficient 
absorbent material must be provided to absorb the entire contents of 
the largest inner packaging contained in the outer packaging. Absorbent 
material is not required if such fragile inner packagings are 
sufficiently protected as packaged for transport that it is unlikely a 
failure would occur and, if a failure did occur, that it would be 
unlikely that the contents would leak from the outer packaging.
    (4) Pressure differential capability. Except for UN3082, inner 
packagings intended to contain liquids must be capable of meeting the 
pressure differential requirements (75 kPa) prescribed in Sec.  
173.27(c) of this part. The capability of a packaging to withstand an 
internal pressure without leakage that produces the specified pressure 
differential should be determined by successfully testing design 
samples or prototypes.
    (5) Drop test capability. Fragile inner packagings must be packaged 
to prevent failure under conditions normally incident to transport. 
Packages of consumer commodities must be capable of withstanding a 1.2 
m drop on solid

[[Page 31288]]

concrete in the position most likely to cause damage.
    (6) Stack test capability. Packages of consumer commodities must be 
capable of withstanding, without failure or leakage of any inner 
packaging and without any significant reduction in effectiveness, a 
force applied to the top surface for a duration of 24 hours equivalent 
to the total weight of identical packages if stacked to a height of 3.0 
m (including the test sample).
    (b) When offered for transportation by aircraft, packages prepared 
under the requirements of this section are to be marked as a limited 
quantity in accordance with Sec.  172.315(b)(1) and labeled as a Class 
9 article or substance, as appropriate, in accordance with subpart E of 
part 172 of this subchapter.
    23. In Sec.  173.230, paragraph (h) is revised to read as follows:


Sec.  173.230  Fuel cell cartridges containing hazardous material.

* * * * *
    (h) Consumer commodities. Until December 31, 2015, for other than 
transportation by aircraft, a limited quantity that conforms to the 
provisions of paragraph (g) of this section and is also a ``consumer 
commodity'' as defined in Sec.  171.8 of this subchapter, may be 
renamed ``Consumer commodity'' and reclassed as ORM-D. In addition to 
the exceptions provided by paragraph (g), shipments of ORM-D materials 
are not subject to the shipping paper requirements of subpart C of part 
172 of this subchapter, unless the materials meet the definition of a 
hazardous substance, hazardous waste, marine pollutant, or are offered 
for transportation aircraft, and are eligible for the exceptions 
provided in Sec.  173.156 of this part.
    24. In Sec.  173.306, paragraph (i)(2) is revised to read as 
follows:


Sec.  173.306  Limited quantities of compressed gases.

* * * * *
    (i) * * *
    (2) Consumer commodities. Until December 31, 2015, a limited 
quantity package containing a ``consumer commodity'' as defined in 
Sec.  171.8 of this subchapter may be renamed ``Consumer commodity'' 
and reclassed as ORM-D or, until December 31, 2012, as ORM-D-AIR 
material and offered for transportation and transported in accordance 
with the applicable provisions of this subchapter in effect on October 
1, 2010.
* * * * *
    25. Section 173.309 is revised to read as follows:


Sec.  173.309  Fire extinguishers.

    (a) Specification 3A, 3AA, 3E, 3AL, 4B, 4BA, 4B240ET or 4BW 
(Sec. Sec.  178.36, 178.37, 178.42, 178.46, 178.50, 178.51, 178.55 and 
178.61 of this subchapter) cylinders are authorized for manufacture and 
use as fire extinguishers under the following conditions:
    (1) Extinguishing agents must be nonflammable, non-poisonous, non-
corrosive, and commercially free from corroding components.
    (2) Each fire extinguisher must be charged with a nonflammable, 
non-poisonous, dry gas that has a dew-point at or below minus 46.7 
[deg]C (minus 52 [deg]F) at 101 kPa (1 atmosphere) and is free of 
corroding components, to not more than the service pressure of the 
cylinder.
    (3) A fire extinguisher may not contain more than 30% carbon 
dioxide by volume or any other corrosive extinguishing agent.
    (4) Each fire extinguisher must be protected externally by suitable 
corrosion-resisting coating.
    (5) Specification 3E and 4BA cylinders must be packed in strong 
non-bulk outer packagings. The outside of the combination packaging 
must be marked with an indication that the inner packagings conform to 
the prescribed specifications.
    (b) Limited quantities. Fire extinguishers charged with a limited 
quantity of compressed gas to not more than 1660 kPa (241 psig) at 21 
[deg]C (70 [deg]F) are excepted from shipping papers (except when 
offered for transportation by aircraft or vessel), labeling (except 
when offered for transportation by aircraft), placarding, the 
specification packaging requirements of this subchapter, and are 
eligible for the exceptions provided in Sec.  173.156 when offered for 
transportation in accordance with this paragraph (b). Packages must be 
marked as specified for limited quantities in Sec.  172.315 of this 
subchapter. Limited quantity shipments conforming to this paragraph are 
not subject to parts 174 and 177 of this subchapter when transported by 
highway or rail. In addition, limited quantity packages of fire 
extinguishers are subject to the following conditions, as applicable:
    (1) Each fire extinguisher must have contents which are 
nonflammable, non-poisonous, and noncorrosive as defined in this 
subchapter;
    (2) Each non-specification fire extinguisher must be packaged as an 
inner packaging within a combination outer packaging. Examples of 
acceptable outer packagings for non-specification fire extinguishers 
include large cartons, racks, cages or other suitable enclosures;
    (3) Non-specification cylinders are authorized as fire 
extinguishers subject to the following conditions:
    (i) The internal volume of each cylinder may not exceed 18 L (1,100 
cubic inches). For fire extinguishers not exceeding 900 mL (55 cubic 
inches) capacity, the liquid portion of the gas plus any additional 
liquid or solid must not completely fill the container at 55 [deg]C 
(130 [deg]F). Fire extinguishers exceeding 900 mL (55 cubic inches) 
capacity may not contain any liquefied compressed gas;
    (ii) Each fire extinguisher manufactured on and after January 1, 
1976, must be designed and fabricated with a burst pressure of not less 
than six times its charged pressure at 21 [deg]C (70 [deg]F) when 
shipped;
    (iii) Each fire extinguisher must be tested, without evidence of 
failure or damage, to at least three times its charged pressure at 21 
[deg]C (70 [deg]F) but not less than 825 kPa (120 psig) before initial 
shipment, and must be marked to indicate the year of the test (within 
90 days of the actual date of the original test) and with the words 
``MEETS DOT REQUIREMENTS.'' This marking is considered a certification 
that the fire extinguisher is manufactured in accordance with the 
requirements of this section. The words ``This extinguisher meets all 
requirements of 49 CFR 173.306'' may be displayed on fire extinguishers 
manufactured prior to January 1, 1976; and
    (iv) For any subsequent shipment, each fire extinguisher must be in 
compliance with the retest requirements of the Occupational Safety and 
Health Administration Regulations of the Department of Labor, 29 CFR 
1910.157;
    (4) Specification 2P or 2Q (Sec. Sec.  178.33 and 178.33a of this 
subchapter) inner non-refillable metal packagings are authorized as 
fire extinguishers subject to the following conditions:
    (i) The liquid portion of the gas plus any additional liquid or 
solid may not completely fill the packaging at 55 [deg]C (130 [deg]F);
    (ii) Pressure in the packaging must not exceed 1250 kPa (181 psig) 
at 55 [deg]C (130 [deg]F). If the pressure exceeds 920 kPa (141 psig) 
at 55 [deg]C (130 [deg]F), but does not exceed 1100 kPa (160 psig) at 
55 [deg]C (130 [deg]F), a specification DOT 2P inner metal packaging 
must be used; if the pressure exceeds 1100 kPa (160 psig) at 55 [deg]C 
(130 [deg]F), a specification DOT 2Q inner metal packaging must be 
used. The metal packaging must be capable of withstanding, without 
bursting, a pressure of one and one-half times the equilibrium pressure 
of the contents at 55 [deg]C (130 [deg]F); and

[[Page 31289]]

    (iii) Each completed inner packaging filled for shipment must have 
been heated until the pressure in the container is equivalent to the 
equilibrium pressure of the contents at 55 [deg]C (130 [deg]F) without 
evidence of leakage, distortion, or other defect.
    (iv) Specification 2P and 2Q cylinders must be packed in strong 
non-bulk outer packagings. The outside of the combination packaging 
must be marked with an indication that the inner packagings conform to 
the prescribed specifications.

PART 175--CARRIAGE BY AIRCRAFT

    26. The authority citation for part 175 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 44701; 49 CFR 1.45 and 1.53.

    27. In Sec.  175.10, paragraph (a)(17) is revised to read as 
follows:


Sec.  175.10  Exceptions for passengers, crewmembers, and air 
operators.

    (a) * * *
    (17) A wheelchair or other mobility aid equipped with a lithium ion 
battery, when carried as checked baggage, provided--
    (i) The lithium ion battery must be of a type that successfully 
passed each test in the UN Manual of Tests and Criteria (IBR; see Sec.  
171.7 of this subchapter), as specified in Sec.  173.185 of this 
subchapter, unless approved by the Associate Administrator;
    (ii) The operator must verify that:
    (A) Visual inspection of the wheelchair or other mobility aid 
reveals no obvious defects;
    (B) Battery terminals are protected from short circuits (e.g., 
enclosed within a battery housing);
    (C) The battery must be securely attached to the mobility aid; and
    (D) Electrical circuits are isolated;
    (iii) The wheelchair or other mobility aid must be loaded and 
stowed in such a manner to prevent its unintentional activation and its 
battery must be protected from short circuiting;
    (iv) The wheelchair or other mobility aid must be protected from 
damage by the movement of baggage, mail, service items, or other cargo;
    (v) Where a lithium ion battery-powered wheelchair or other 
mobility aid is specifically designed to allow its battery to be 
removed by the user (e.g., collapsible):
    (A) The battery must be removed from the wheelchair or other 
mobility aid according to instructions provided by the wheelchair or 
other mobility aid owner or its manufacturer;
    (B) The battery must be carried in carry-on baggage only;
    (C) Battery terminals must be protected from short circuits (by 
placement in original retail packaging or otherwise insulating the 
terminal e.g. by taping over exposed terminals or placing each battery 
in a separate plastic bag or protective pouch);
    (D) The battery must not exceed 25 grams aggregate equivalent 
lithium content; and
    (E) A maximum of one spare battery not exceeding 25 grams aggregate 
equivalent lithium content or two spares not exceeding 13.5 grams 
aggregate equivalent lithium content each may be carried;
    (vi) The pilot-in-command is advised either orally or in writing, 
prior to departure, as to the location of the lithium ion battery or 
batteries aboard the aircraft.
* * * * *

PART 176--CARRIAGE BY VESSEL

    28. The authority citation for part 176 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

    29. In Sec.  176.905, paragraph (i) is revised to read as follows:


Sec.  176.905  Stowage of motor vehicles or mechanical equipment.

* * * * *
    (i) Exceptions--A vehicle or mechanical equipment is excepted from 
the requirements of this subchapter if any of the following are met:
    (1) The vehicle or mechanical equipment has an internal combustion 
engine using liquid fuel that has a flashpoint less than 38[deg]C 
(100[deg]F), the fuel tank is empty, and the engine is run until it 
stalls for lack of fuel;
    (2) The vehicle or mechanical equipment has an internal combustion 
engine using liquid fuel that has a flashpoint of 38[deg]C (100[deg]F) 
or higher, the fuel tank contains 418 L (110 gallons) of fuel or less, 
and there are no fuel leaks in any portion of the fuel system;
    (3) The vehicle or mechanical equipment is stowed in a hold or 
compartment designated by the administration of the country in which 
the vessel is registered as specially designed and approved for 
vehicles and mechanical equipment and there are no signs of leakage 
from the battery, engine, fuel cell, compressed gas cylinder or 
accumulator, or fuel tank, as appropriate. For vehicles with batteries 
connected and fuel tanks containing gasoline transported by U.S. 
vessels, see 46 CFR 70.10-1 and 90.10-38;
    (4) The vehicle or mechanical equipment is electrically powered 
solely by wet electric storage batteries (including nonspillable 
batteries) or sodium batteries; or
    (5) The vehicle or mechanical equipment is equipped with liquefied 
petroleum gas or other compressed gas fuel tanks, the tanks are 
completely emptied of liquefied or compressed gas and the positive 
pressure in the tank does not exceed 2 bar (29 psig), the line from the 
fuel tank to the regulator and the regulator itself is drained of all 
traces of liquefied or compressed gas, and the fuel shut-off valve is 
closed.
* * * * *

PART 178--SPECIFICATIONS FOR PACKAGINGS

    30. The authority citation for part 178 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

    31. In Sec.  178.2, paragraph (c)(1)(ii) is revised to read as 
follows:


Sec.  178.2  Applicability and responsibility.

* * * * *
    (c) * * *
    (1) * * *
    (ii) Retain copies of each written notification for at least one 
year from date of issuance; and
* * * * *

    Issued in Washington, DC, on May 18, 2012 under authority 
delegated in 49 CFR part 106.
William Schoonover,
Deputy Associate Administrator, Field Operations, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2012-12523 Filed 5-24-12; 8:45 am]
BILLING CODE 4910-60-P


