[Federal Register Volume 78, Number 4 (Monday, January 7, 2013)]
[Rules and Regulations]
[Pages 1101-1118]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31242]



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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: Final rule.

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SUMMARY: This document responds to administrative appeals generated as 
a result of certain amendments adopted in an international 
harmonization final rule published on January 19, 2011. The January 19, 
2011 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 necessary to align 
the HMR with recent revisions to international standards for the 
transport of hazardous materials by all modes. In this final rule, 
PHMSA amends 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 and passenger notification of hazardous materials 
restrictions by operators. Further, this final rule adopts 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, that 
revised shipper responsibilities related to packaging design variation, 
manufacturer notification, and recordkeeping requirements for certain 
packaging types.

DATES: Effective: January 1, 2013.

ADDRESSES: 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 U.S. Department of 
Transportation, Docket Operations (M-30), 1200 New Jersey Avenue SE., 
Ground Floor, Room W12-140, Washington, DC 20590-0001 between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION: 

I. Background
II. Administrative Aappeals and Public Comments Submitted in 
Response to HM-215K Rulemaking Actions
    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 
QuantityMarking
    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 Orders 12866 and 13563 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

    PHMSA published a final rule under Docket PHMSA-2009-0126 (HM-215K) 
on January 19, 2011 [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 the seamless transportation of 
hazardous materials internationally, to, from, and within the United 
States. In this final rule, PHMSA is adopting 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 and to public comments submitted in response to corresponding 
amendments proposed in a notice of proposed rulemaking (NPRM) published 
on May 25, 2012 [77 FR 31274], also under this docket (PHMSA-2009-
0126). Additionally, this document 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 and notification to passengers on hazardous materials 
restrictions an operator must provide at the point of ticket purchase 
and flight check-in. Further, PHMSA is adopting 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 [75 FR 5376] under 
Docket PHMSA-06-25736 (HM-231) that revised shipper responsibilities 
related to packaging design variation and manufacturer notification 
recordkeeping requirements for certain packaging types.

[[Page 1102]]

II. Administrative Appeals and Public Comments Submitted in Response to 
HM-215K Rulemaking Actions

    This final rule addresses administrative appeals submitted in 
response to the January 19, 2011 final rule and public comments 
submitted in response to the May 25, 2012 NPRM from the following 
companies and organizations:

    Administrative appeals submitted in response to the January 19, 
2011 final rule:
    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).
    Public comments submitted in response to the May 25, 2012 NPRM:
    Amadeus IT Group, S.A. (Amadeus).
    Air Line Pilots Association International (ALPA).
    Airlines for America (A4A).
    Alaska Airlines (Alaska).
    American Coatings Association (ACA).
    American Veterinary Distributors Association (AVDA).
    Association of Hazmat Shippers, Inc. (AHS).
    Brookstone.
    Broward Fire Equipment and Service, Inc. (Broward).
    ChemTel, Inc. (ChemTel).
    Consumer Healthcare Products Association (CHPA).
    Council on Safe Transportation of Hazardous Articles, Inc. 
(COSTHA).
    Dangerous Goods Advisory Council, Inc. (DGAC).
    Food Marketing Institute (FMI).
    Fuel Cell and Hydrogen Energy Association (FCHEA).
    Healthcare Distribution Management Association (HDMA).
    HMT Associates, L.L.C. (HMT).
    Integrated Support Services (ISS).
    Intel Corporation (Intel).
    Interactive Travel Services Association (ITSA).
    International Air Transport Association (IATA).
    International Vessel Operators Dangerous Goods Association 
(IVODGA).
    Patton Boggs, LLP, on behalf of Lilliputian Systems, Inc. (LSI).
    Ministry of Commerce, Peoples Republic of China (P.R. China).
    National Association of Chain Drug Stores (NACDS).
    National Association of Fire Equipment Distributors (NAFED).
    Safety Specialists, Inc. (SSI).
    UPS.
    Urethane Supply Company (USC).
    URS Corporation (URS).
    Utility Solid Waste Activities Group (USWAG).

A. Transportation of ORM-D Material

    A number of administrative appeals concern issues related to our 
adoption of the international system for the transportation of limited 
quantity material. Specifically, some appellants are concerned with the 
eventual phase-out of our domestic system for the transportation of 
limited quantity material reclassed 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 Department of 
Transportation (DOT) or United Nations (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.
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, 2011 final rule 
amended the HMR by phasing out the ORM-D system beginning January 1, 
2013, for material transported by aircraft and, beginning 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 itself, 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. It 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 that 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.
    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. PHMSA 
held public meetings on this issue in February 2006 and again in 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 (August 24, 2010; 75 
FR 52070), 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,

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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. Further, commenters stated that PHMSA should not adopt the 
international system simply based on the opportunity to align the HMR 
with international standards.
    Allowing dual systems indefinitely for offering and transporting 
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 the NPRM we proposed to authorize the ORM-D 
classification and the use of packagings marked ``Consumer commodity, 
ORM-D'' until December 31, 2015 for domestic highway, rail, and vessel 
transportation.
    Based on the merits of public comment received, we are extending 
authorization of the ORM-D classification and the use of packagings 
marked ``Consumer commodity, ORM-D'' until December 31, 2020 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 indicated that it 
implies all markings on each packaging in the overpack must be visible. 
DGAC noted that this is not consistent with the 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 DGAC's understanding that this requirement refers to the limited 
quantity marking and not to all markings that may be required by the UN 
Model Regulations. Its 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 
final rule we are accepting DGAC's appeal and are adopting, as 
proposed, the revision of 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 adopted as proposed 
and is 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 limited quantity marking 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. In 
addition, commenters also requested that, for clarification, 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.
    Based on the merits of public comment received, we are extending 
authorization of the ORM-D

[[Page 1104]]

classification and the use of packagings marked ``Consumer commodity, 
ORM-D'' until December 31, 2020 for domestic highway, rail and vessel 
transportation. However, in this final rule we are only extending 
authorization to continue using the square-on-point mark containing the 
UN identification (ID) number until January 1, 2015, as proposed in the 
May 25, 2012 NPRM, for other than transportation by aircraft.

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 
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, we believed that the prohibition should 
include spare fuel cell 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 safety 
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.
    In the May 25, 2012 NPRM, we granted the appeal for reconsideration 
by providing additional opportunity for public comment on the issue. In 
response, one commenter (ALPA) opposed lifting the prohibition on spare 
fuel cell cartridges containing Division 2.1 flammable gas for carriage 
in checked baggage. The remaining commenters (IATA, P.R. China, Intel, 
DGAC, FCHEA, LSI, and Brookstone) all support lifting the U.S. 
prohibition and recommend alignment with the ICAO Technical 
Instructions. Points leading to the Department's decision are:
     Passenger authorizations for hazardous materials are 
outside the scope of the traditional hazardous materials transportation 
regulatory system. Many of the critical safety requirements of the HMR 
that would apply to these items when in transportation as cargo do not 
apply to passengers, for example, hazard communication, pilot 
notifications and cargo stowage requirements for hazardous materials.
     Passengers are not trained to recognize potential hazards. 
Although passengers pack, handle, and (in many cases) should 
communicate the hazardous materials carried onboard to an air carrier, 
the HMR does not require training for passengers. In most instances, 
passengers are unlikely to be aware of the safety implications if 
certain commodities are subject to improper packaging or handling.
     Recognition of the limitations of fire suppression and 
detection systems. We recognize that aircraft fire detection and 
suppression systems do not prevent fires nor are they designed to 
completely extinguish fires.
     Article Design Management. One example DOT may consider in 
the future could be similar to is its approach in regulating portable 
oxygen concentrators (POCs). That is, before any POC design is allowed 
onboard aircraft, the design must be tested and demonstrate a certain 
level safety prior to being authorized onboard passenger-carrying 
aircraft.
     Cumulative risk of additional passenger authorizations. We 
believe that when new passenger authorizations are granted 
consideration must be given to the cumulative risk of the new 
authorization combined with existing authorizations.
    Accordingly, we deny Lilliputian's administrative appeal that 
requests the HMR be revised to allow spare Division 2.1 fuel cell 
cartridges 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.
    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. Therefore, we are adopting the language 
proposed in DGAC's administrative appeal, and revising Sec.  173.167 
accordingly. (See the detailed discussion of revisions to Sec.  173.167 
in Section V.)

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. In the May 25, 2012 
NPRM, we did not propose 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, we stated this exception was not 
applicable to air transportation. Thus, the amendment is adopted as 
proposed.

F. Materials of Trade

    Materials of Trade (MOTs) are hazardous materials, other than 
hazardous waste, that are carried on a motor vehicle: (1) To protect 
the health and safety of the motor vehicle operator or passengers, such 
as insect repellant or a fire extinguisher; (2) To support the 
operation or maintenance of a motor vehicle (including its auxiliary 
equipment), such as a spare battery or gasoline; or (3) To directly 
support a principal business of a private motor carrier (including 
vehicles operated by a rail carrier) that is other than transportation 
by motor vehicle--for example, landscaping, pest control, painting, 
plumbing, or welding services. The MOTS exceptions of the HMR generally 
allow certain hazardous material articles and substances, including 
ORM-D, to be transported by motor vehicle as part of a business

[[Page 1105]]

operation under less regulation without compromising safety.
    In the May 25, 2012 NPRM, PHMSA proposed to apply the same 
eligibility to limited quantity packages as it currently does to ORM-D 
packages as MOTS. PHMSA believes that because small quantities of a 
limited number of low-risk materials are eligible in a properly 
prepared and marked limited quantity package, allowing such packages as 
MOTS will not compromise transportation safety. One commenter, ChemTel, 
opposes such authorization on the basis that because the package is not 
marked with a common name, it somehow compromises safety. On the other 
hand, USWAG fully supports the concept of limited quantity packages 
being eligible for transportation as MOTS.
    PHMSA response.
    Similar to the applicability of written incident reporting 
exceptions to limited quantity material, our review of the HMR 
indicated that we did not amend the MOTS 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 in authorizing 
limited quantity material to be transported as MOTS in the same manner 
as always provided for ORM-D. 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 final rule, we are applying the MOTS exceptions to limited 
quantity packages consistent with the exception provided to ORM-D 
material. Additionally, we are clarifying that exceptions for limited 
quantity material also include limited quantity material authorized 
under Sec.  173.63(b) for certain Division 1.4S explosives, Sec.  
173.306 for compressed gases, and Sec.  173.309 for certain fire 
extinguishers.

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 in either checked or carry-on baggage, or on one's person. 
Such provisions form the basis of exceptions for passengers, 
crewmembers, and air operators 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 final rule, PHMSA is adopting, as 
proposed, amendments to the HMR that address the potential for 
unintended activation of all stowed devices on an aircraft and provide 
for the intentional removal of a lithium ion battery from a device and 
its stowage in the passenger cabin. As explained in the May 25 NPRM, 
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 to carry-on baggage only any spare lithium ion batteries used to 
power portable electronic devices and medical devices. 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). Subsequently, 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 final rule, PHMSA is 
adopting as proposed similar provisions and revising Sec.  
175.10(a)(17) accordingly.
    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.
    In this final rule, PHMSA is adopting amendments to the HMR that 
are consistent with the ICAO DGP/23 Panel recommendations. This final 
rule also clarifies and corrects some related amendments adopted in the 
original January 19, 2011 final rule. See the discussion of specific 
amendments adopted in Sec.  175.10 under the ``V. Section-by-Section 
Review of Changes'' section of this rulemaking.

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

    In this final rule, 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.

[[Page 1106]]

    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 clearly stated 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 final rule, we are denying DGAC's appeal to 
extend the effective date of the rule. However, we are amending Sec.  
178.2(c)(1)(ii) of the HMR based on DGAC's request to revert 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 amending Sec.  173.22(a)(4)(ii) as proposed to 
require a shipper who sells or transfers a packaging or closes and 
offers a package for transportation 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. 
Subsequent downstream offerors of a filled and otherwise properly 
prepared unaltered package are not required to maintain manufacturer 
notification (including closure instructions).
    Additionally, in this final rule, PHMSA is adopting as proposed the 
clarification 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.

V. Section-by-Section Review of Changes

Part 171

Section 171.16
    This section prescribes written hazardous material incident 
reporting requirements. In this final rule, we are adopting as proposed 
the revision to the paragraph (d) exceptions to reflect the eventual 
phase-out of the ORM-D system on December 31, 2020 and extending the 
exception provided for materials classed as ORM-D to hazardous 
materials authorized for transportation as limited quantity materials 
under Subparts C through E and Subpart G of Part 173 of the HMR. PHMSA 
notes that this exception is not applicable to air transportation. See 
section II.E for a comprehensive discussion of the adopted changes.

Part 172

Section 172.102
    Section 172.102 prescribes special provisions associated with 
certain descriptions in the HMT. Special provision 18 is applicable to 
fire extinguishers. Because the text is now included in Sec.  173.309, 
this Special provision is redundant and is being removed in this final 
rule.
Section 172.200
    Section 172.200 prescribes the applicability of shipping paper 
requirements for the transportation of hazardous materials. In the 
January 19, 2011 final rule, paragraph (b)(3) was revised to remove the 
exceptions for ORM-D material in conformance with revisions made to the 
limited quantity requirements. In this final rule, we are adopting 
revisions to the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class from December 31, 2013 
to December 31, 2020 in response to the appeal submitted by HDMA. 
Additionally, we are adopting revisions to paragraph (b)(3) that 
correct the shipping paper applicability for vessel shipments of ORM-D 
material that was inadvertently adopted in the January 19, 2011 final 
rule. Further, we 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 172.315 prescribes the requirements for marking packages 
which contain limited quantity material.

[[Page 1107]]

Based on administrative appeals submitted and requests to make the 
requirements for limited quantity marking more clear, we are adopting 
as proposed the revisions to Sec.  172.315 that permit the continued 
use of alternative limited quantity markings (i.e., square-on-point 
with Identification Number) marking for the same duration as proposed 
in the May 25, 2012 NPRM, 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 final rule, we are adopting as proposed the revisions to the 
effective date for expiration of the authorization to reclassify 
materials to the ORM-D hazard class from December 31, 2013 to December 
31, 2020 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
    Section 173.6 prescribes exceptions from certain requirements of 
the HMR for the transportation of hazardous materials defined as 
materials of trade (MOTS) when transported by motor vehicle. See Sec.  
171.8. In this final rule, we are adopting as proposed the revision to 
paragraph (d) exceptions that reflects the phase-out of the ORM-D 
system on December 31, 2020 and applying the exception provided ORM-D 
material to hazardous materials authorized for transportation as a 
limited quantity under subparts C through E and subpart G of part 173 
of the HMR. See section II.F for a comprehensive discussion of these 
adopted amendments.
Section 173.22
    Section 173.22 prescribes shipper responsibilities. In this final 
rule, PHMSA is responding 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 final rule, PHMSA is adopting as proposed the revisions to 
Sec.  173.22(a)(4) by clarifying 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, PHMSA is amending Sec.  
173.22(a)(4)(ii) as proposed to require a person who sells or transfers 
a packaging or closes and offers a package for transportation 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. Subsequent downstream offerors of a filled 
and otherwise properly prepared unaltered package are not required to 
maintain manufacturer notification (including closure instructions). 
See Section III of this preamble for a more comprehensive discussion of 
these amendments.
Section 173.25
    Section 173.25 prescribes requirements for the transportation of 
authorized packages in overpacks used for protection or convenience of 
handling or to consolidate packages. In this final rule, we are 
adopting as proposed the revisions to Sec.  173.25(a)(6) by clarifying 
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 
must be visible as specified in Sec.  173.25(a)(2) and (a)(3). 
Additionally, we are adopting as proposed the correction of an error in 
the January 19, 2011 final rule and 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.
Section 173.63
    Section 173.63 prescribes packaging exceptions for certain Division 
1.4S explosive articles authorized for reclassification and transport 
as ORM-D. Currently, such articles in Division 1.4S may be reclassed as 
ORM-D and offered for transportation until December 31, 2013. In the 
May 25, 2012 NPRM, PHMSA proposed to extend the effective date for 
expiration of the authorization to reclassify materials to the ORM-D 
hazard class from December 31, 2013 to December 31, 2015. In this final 
rule, we are extending the effective date for expiration of the 
authorization to reclassify materials to the ORM-D hazard class from 
December 31, 2013 to December 31, 2020.
Section 173.144
    Section 173.144 defines ``Other Regulated Materials, ORM-D.'' In 
the May 25, 2012 NPRM, PHMSA proposed to extend 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 this final rule, we are 
extending the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class from December 31, 2013 
to December 31, 2020.
Sections 173.150, 173.151, 173.152, 173.153, 173.154, and 173.155
    Sections 173.150 through 173.155 prescribe 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 the May 25, 2012 NPRM, PHMSA 
proposed to extend the effective date for expiration of the 
authorization to reclassify materials to the ORM-D hazard class from 
December 31, 2013 to December 31, 2015. In this final rule, we are 
extending the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class from December 31, 2013 
to December 31, 2020. This is accomplished by revising each of these 
sections' consumer commodity paragraphs, where applicable.
Section 173.156
    Section 173.156 prescribes exceptions for the Other Regulated 
Materials, ORM-D hazard class. In the May 25, 2012 NPRM, PHMSA proposed 
to extend the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class from December 31, 2013 
to December 31, 2015. In this final rule, we are extending the 
effective date for expiration of the authorization to reclassify 
materials to the ORM-D hazard class from December 31, 2013 to December 
31, 2020.

[[Page 1108]]

Section 173.161
    Section 173.161 prescribes packaging requirements for chemical kits 
and first aid kits containing small amounts of hazardous materials. In 
the May 25, 2012 NPRM, PHMSA proposed to extend the effective date for 
expiration of the authorization to reclassify materials to the ORM-D 
hazard class from December 31, 2013 to December 31, 2015. In this final 
rule, we are extending the effective date for expiration of the 
authorization to reclassify materials to the ORM-D hazard class from 
December 31, 2013 to December 31, 2020.
Section 173.165
    In the January 19, 2011 final rule, a new Sec.  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 the May 25, 2012 NPRM, PHMSA 
proposed to extend the effective date for expiration of the 
authorization to reclassify materials to the ORM-D hazard class from 
December 31, 2013 to December 31, 2015. In this final rule, we are 
extending the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class from December 31, 2013 
to December 31, 2020.
Section 173.167
    In the January 19, 2011 final rule, a new Sec.  173.167 was added 
to indicate authorized materials and quantity limits for articles and 
substances that may be described as ``ID8000, Consumer commodity,'' and 
are eligible for transport by aircraft and authorized transportation by 
all modes. This final rule addresses inconsistencies with the ICAO 
Technical Instructions brought to our attention in appeals submitted in 
response to the January 19, 2011 final rule. For example, DGAC pointed 
out that absorbent material requirements and stack test criteria were 
not included in the Sec.  173.167 packaging section. Additionally, HMT 
correctly asserts that Packing Instruction Y963 in the ICAO Technical 
Instructions only requires that friction-type closures be secured by 
positive and not secondary means. COSTHA, HMT, and DGAC correctly state 
that Consumer commodities prepared under the requirements of Sec.  
173.167 should not be subject to Subpart B of Part 173. For other than 
applicable Sec.  173.27(f)(2) provisions, PHMSA agrees. Further, DGAC 
and HMT suggest the HMR be revised to be consistent with the ICAO 
Technical Instructions by using the words ``glass,'' ``earthenware,'' 
and ``brittle plastic'' instead of use of the undefined term 
``fragile'' as proposed in Sec.  173.167(a)(3) and (a)(5). We agree and 
are replacing the word ``fragile'' with the terms used in ICAO 
Technical Instructions.
Section 173.230
    Section 173.230 prescribes the requirements for fuel cells offered 
for transportation by all modes. As published in the January 19, 2011 
final rule, in paragraph (g) of this section, 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 the May 25, 2012 NPRM, PHMSA 
proposed to extend the effective date for expiration of the 
authorization to reclassify materials to the ORM-D hazard class from 
December 31, 2013 to December 31, 2015. In this final rule, we are 
extending the effective date for expiration of the authorization to 
reclassify materials to the ORM-D hazard class, for other than air 
transportation, from December 31, 2013, to December 31, 2020.
Section 173.306
    Section 173.306 prescribes requirements for limited quantity of 
compressed gases. In the May 25, 2012 NPRM, PHMSA proposed to extend 
the effective date for expiration of the authorization to reclassify 
materials to the ORM-D hazard class in paragraph (i)(2) from December 
31, 2013 to December 31, 2015. In this final rule, we are extending the 
effective date for expiration of the authorization to reclassify 
materials to the ORM-D hazard class, for other than air transportation, 
from December 31, 2013, to December 31, 2020.
Section 173.309
    Section 173.309 prescribes requirements for fire extinguishers. In 
this final rule, we are adopting revisions to the entire section for 
clarity. First, we are relocating the limited quantity requirements and 
exceptions from paragraph (b) as proposed to new paragraph (d) as we 
typically indicate regulation first in most sections followed by any 
exceptions to that regulation. Second, we are relocating regulatory 
text from Sec.  172.102(c)(1) Special provision 18 to revised paragraph 
(a) which prescribes the conditions when specification cylinders may be 
described, offered, and transported in commerce as fire extinguishers. 
Third, in the May 25 NPRM, we solicited public comment on whether we 
should consider allowing UN specification cylinders as fire 
extinguishers in Sec.  173.309. Because we did not receive any comments 
related to this issue in support or opposition, we are not adopting 
revisions to this section related to UN pressure vessels at this time. 
Lastly, we are revising new paragraph (d) 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, and Parts 174 and 177 carrier requirements for 
limited quantity packages of fire extinguishers.
    In general, commenters were very supportive of the revisions 
proposed in the May 25, 2012 NPRM (Broward, ISS, and NAFED). However, 
Broward and NAFED shared concerns related to scenarios where fire 
extinguishers were transported in private carriage without an outer 
packaging. This scenario typically occurs when the articles are being 
transported to and from a service facility for recharging, hydrostatic 
testing, and maintenance. In their comments, they request PHMSA allow 
the practice if the articles are properly secured in the vehicle and 
are marked and labeled as required by the HMR.
    PHMSA response. The scenario the commenters describe would be 
eligible for the Materials of Trade (MOTS) exceptions under Sec.  
173.6. Provided each fire extinguisher did not exceed 100 kg (220 lbs) 
and the aggregate gross weight of all fire extinguishers on the vehicle 
did not exceed 200 kg (440 lbs), users may use the MOTS exceptions to 
transport the fire extinguishers unpackaged as prescribed in Sec.  
173.6(b)(5). Additionally, the fire extinguishers are required to be 
marked and labeled in accordance with the HMR as prescribed in Sec.  
173.6(c)(3). Users may also transport a combination of MOTS-eligible 
articles and substances and other hazardous materials on the same motor 
vehicle, provided the MOTS limits themselves are not exceeded.
    Lastly, in its comments ISS offered formatting suggestions to aid 
the reader and to clearly distinguish the limited quantity exceptions 
in Sec.  173.309(d) intended for all fire extinguishers from those 
fully regulated provisions for fire extinguishers in Sec.  173.309(a), 
(b), and (c). PHMSA appreciates the recommendations and, in this final 
rule, revises the section accordingly.

[[Page 1109]]

Part 175

Section 175.10
    Lithium ion battery-powered mobility aids. 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). In the final rule, 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. Furthermore, it is the operator's responsibility 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. Accordingly, revisions 
to certain amendments adopted in Sec.  175.10(a)(17) of the final rule 
are 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 as 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 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.
    Lithium battery-powered medical devices. URS commented in response 
to the May 25, 2012 NPRM regarding such articles also excepted from 
regulatory requirements under Part 8 of the ICAO Technical 
Instructions. Because amendments regarding such articles were not 
proposed in the May 25, 2012 NPRM, PHMSA cannot align with the ICAO 
Technical Instructions in this final rule.
Section 175.25
    Section 175.25 prescribes the notification that operators must 
provide to passengers regarding restrictions on the types of hazardous 
material they may or may not carry aboard an aircraft on their person 
or in checked or carry-on baggage. The January 19, 2011 final rule 
revised provisions in Sec.  175.25 applicable to notification and 
acknowledgement of the types of hazardous materials that a passenger 
may or may not carry aboard an aircraft by updating the ticketing and 
flight check-in provisions of the HMR based on current technologies 
used to perform such functions.
    Subsequent to issuance of the final rule, the PHMSA and FAA 
received several administrative appeals, and, at the August 16, 2012 
public meeting, received written and oral comments requesting 
additional time for affected entities to implement the new provisions 
in a more effective and cooperative manner.
    PHMSA and FAA agree that a delay in the compliance date of the 
revised Sec.  175.25 is warranted, particularly if a delay supports the 
implementation of more effective methods for increasing passenger 
awareness of, and compliance with, the HMR. Therefore, PHMSA and FAA 
provide this notification of extending the compliance date until 
January 1, 2015. Additionally, we acknowledge that notification of 
interested parties is necessary if we wish to gain widespread support 
of the collaborative approach to implementing effective and value-added 
solutions as discussed during the August 16, 2012 public meeting on 
this issue.

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 did not revise 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. 
We are providing that clarification in this final rule. In addition, 
PHMSA is adopting as proposed the removal of a heading for each 
exception criterion in paragraph (i). These headings are not necessary 
and have resulted in confusion among the regulated community 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 final rule, 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) to the original one year from date of issuance. 
Therefore, in this final rule, we are adopting as proposed,

[[Page 1110]]

amendments to the HMR based on DGAC's request to revert to the original 
recordkeeping retention duration for manufacturer notification to one 
year.
Section 178.601
    This section prescribes the general requirements for the testing of 
non-bulk packagings and packages. Paragraph (c)(4)(v) was revised in a 
final rule published on October 5, 2012 [77 FR 60935] under Docket 
PHMSA 2012-0080 (HM-244E) entitled ``Hazardous Materials: Minor 
Editorial Corrections and Clarifications (RRR). In the final rule, we 
explained that the term ``different packaging'' is defined in paragraph 
(c)(4) and that because paragraph (c)(4)(v) of the definition excluded 
packagings which differ only in a lesser design height from the 
category of a ``different packaging,'' for purposes of clarification, 
we were revising the paragraph to link the exclusion to the authorized 
packaging variations that allow a packaging to be manufactured at a 
lesser design height. We provided the link by adding a reference to the 
variations in paragraph (g)(3) for single packagings, and to (g)(4) for 
combination packagings.
    While our intent was to afford clarification by providing a reader-
friendly link to reference the variations in paragraph (g)(3) for 
single packagings and to paragraph (g)(4) for combination packagings, 
we received appeals from the Dangerous Goods Advisory Council (DGAC). 
The appellant stated that by incorporating such a revision, PHMSA, 
among other subtle differences such as a reduction in the size of 
marking requirements, placed additional restrictions on packagings that 
differ only in a lesser design height. The appellant further stated 
that such revisions constitute a substantive change which requires an 
opportunity for public notice and comment in accordance with the 
Administrative Procedure Act. Based on the response we received and 
upon further review, we are granting this appeal by revising this 
paragraph to its language prior to the publication of HM-244E, and will 
consider revisiting the issue at a later time.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule 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 final rule responds to the administrative appeal of certain 
amendments adopted in final rule PHMSA-2009-0126 (HM-215K) published on 
January 19, 2011 (76 FR 3308). Additionally, it responds to the 
administrative appeal 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 final rule 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 final rule 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 final rule 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 final rule 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 adopted in this rulemaking reduce 
compliance costs of the regulated community, and 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 
of the amendments adopted:

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

[[Page 1111]]

 
Consumer Commodity Transport by     No costs are anticipated    Clarifications will reduce  Positive.
 Aircraft.                           as the proposal provides    compliance costs that
                                     clarification and           result from confusion and
                                     guidance for existing       misinterpretation of the
                                     requirements adopted in     regulatory requirements.
                                     the January 19, 2011
                                     Final Rule.
Incident Reporting for Limited      No costs are anticipated..  Increased exceptions for    Positive.
 Quantity Material.                                              written reporting
                                                                 requirements will reduce
                                                                 the regulatory burden on
                                                                 shippers/carriers of
                                                                 limited quantity
                                                                 materials.
Materials of Trade Exceptions.....  No costs are anticipated..  Increased materials of      Positive.
                                                                 trade exceptions will
                                                                 reduce the regulatory
                                                                 burden on shippers/
                                                                 carriers of limited
                                                                 quantity materials.
Recordkeeping Requirements for      Costs are expected to be    Reduced costs that          $3.3 million per
 Manufacturer Notification *.        negligible.                 shippers will incur as a    year.
                                                                 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 final rule 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). The amendments adopted in this 
final rule preempt State, local and Indian tribe requirements and do 
not impose regulation having 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 final rule addresses all the covered subject items above and 
preempts State, local, and Indian tribe requirements not meeting the 
``substantively the same'' standard. This final rule 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 April 8, 
2013.

D. Executive Order 13175

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
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.
    This final rule has been developed in accordance with Executive 
Order 13272 (``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 final rule identifies a revised information collection request 
that PHMSA will submit to OMB for approval based on the requirements 
adopted in this final rule. PHMSA has developed burden estimates to 
reflect the changes adopted in this final rule, and estimates the 
information collection and recordkeeping burden as adopted in this 
final rule to be as follows:
     This final rule reduces the OMB Control Number 2137-0572 
information collection burden by $1,654,384 annually. PHMSA has 
submitted 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

[[Page 1112]]

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 final rule 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 initial 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. Further, we 
do not see any additional environmental impacts associated with the 
amendments proposed in the May 25, 2012 NPRM and adopted unchanged in 
this final rule regarding the administrative appeals submitted to PHMSA 
in response to the January 19 final rule. Lastly, we did not receive 
any public comment related to the potential environmental impact of the 
proposals made in the May 25, 2012 NPRM.

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 final rule 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, 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 amending Title 49, 
Subtitle B, Chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
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.

0
2. In Sec.  171.16, paragraph (d)(2) is revised to read as follows:


Sec.  171.16  Detailed hazardous materials incident reports.

* * * * *
    (d) * * *
    (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

0
3. The authority citation for part 172 continues to read as follows:

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


Sec.  172.102  [Amended]

0
4. In Sec.  172.102, in paragraph (c)(1), Special provision 18 is 
removed.
0
5. In Sec.  172.200, paragraph (b)(3) is revised to read as follows:

[[Page 1113]]

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, 2020, a 
package of ORM-D material authorized by this subchapter on October 1, 
2010, when offered for transportation by highway, rail or vessel.
* * * * *

0
6. 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, 2014, 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, 2020, 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(a)(1) is not required to be 
marked with the limited quantity ``Y'' marking required by paragraph 
(b) of this section.

0
7. In Sec.  172.316, paragraph (a)(2) is revised to read as follows:


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

    (a) * * *
    (2) Until December 31, 2020, 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

0
8. 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.


0
9. 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(b), 173.150, 173.151(b) and (c), 173.152, 
173.153, 173.154, 173.155, 173.161, 173.165, 173.167, 173.306(i), and 
173.309(b) 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.
* * * * *

0
10. 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 package 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 
package 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 package. 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 package 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 for transportation in commerce. Subsequent offerors of 
a filed and otherwise properly prepared unaltered package are not 
required to maintain manufacturer notification (including closure 
instructions).
    (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).
* * * * *

0
11. In Sec.  173.25, paragraph (a)(6) is revised and 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 the required 
marking of Sec.  173.4a of this part unless visible.
* * * * *

0
12. 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. 
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, 2020, 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.
* * * * *

0
13. Section 173.144 is revised to read as follows:


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

    Until December 31, 2020 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

[[Page 1114]]

provided in Column (8A) of the Sec.  172.101 Hazardous Materials Table.

0
14. 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, 2020, 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.
* * * * *

0
15. 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, 2020, 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.
* * * * *

0
16. 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, 2020, 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.

0
17. 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, 2020, 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.

0
18. 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, 2020, 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.
* * * * *

0
19. 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, 2020, 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.

0
20. 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 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, 
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, 2020, 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;

[[Page 1115]]

    (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, 2020, 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, 2020, Sec.  172.316 of this subchapter.

0
21. In Sec.  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, 2020, 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.
* * * * *

0
22. In Sec.  173.165, paragraph (c) is revised to read as follows:


Sec.  173.165  Polyester resin kits.

* * * * *
    (c) Consumer commodities. Until December 31, 2020, 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.

0
23. 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 offered for 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 are excepted 
from labeling and shipping papers when transported by highway or rail. 
Except for Sec.  173.27(f)(2), packages prepared under the requirements 
of this section are not subject to Subpart B of this part. 
Additionally, packages prepared under the requirements of this section 
may be offered for transportation and transported by all modes. As 
applicable, 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. Liquids must not completely fill an inner packaging at 55 
[deg]C;
    (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 positive 
means. 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. Glass or 
earthenware inner packagings 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 the glass or 
earthenware 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) Drop test capability. Breakable inner packagings (e.g., glass, 
earthenware, or brittle plastic) must be packaged to prevent failure 
under conditions normally incident to transport. Packages of consumer 
commodities as prepared for transport must be capable of withstanding a 
1.2 m drop on solid concrete in the position most likely to cause 
damage.
    (5) 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:
    (1) 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; and
    (2) 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.

[[Page 1116]]


0
24. 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, 2020, 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) of this section, 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 by aircraft, and are eligible for the 
exceptions provided in Sec.  173.156 of this part.
* * * * *

0
25. 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, 2020, 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.
* * * * *

0
26. 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; and
    (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) 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:
    (1) Extinguishing agents must be nonflammable, non-poisonous, and 
non-corrosive as defined in this subchapter;
    (2) 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);
    (3) 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);
    (4) 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; and
    (5) 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.
    (c) Non-specification cylinders are authorized as fire 
extinguishers subject to the following conditions:
    (1) Extinguishing agents must be nonflammable, non-poisonous, and 
non-corrosive as defined in this subchapter;
    (2) 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[emsp14][deg]F). Fire extinguishers exceeding 900 mL (55 cubic 
inches) capacity may not contain any liquefied compressed gas;
    (3) 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[emsp14][deg]F) 
when shipped;
    (4) 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[emsp14][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;
    (5) 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; and
    (6) 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.
    (d) Limited quantities: Fire extinguishers otherwise conforming to 
paragraph (a), (b), or (c) of this section and are charged with a 
limited quantity of compressed gas to not more than 1660 kPa (241 psig) 
at 21 [deg]C (70[emsp14][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 (d). 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) Extinguishing agents must be nonflammable, non-poisonous, and 
non-

[[Page 1117]]

corrosive as defined in this subchapter; and
    (2) Packages must be marked as specified for limited quantities in 
Sec.  172.315 of this subchapter.

PART 175--CARRIAGE BY AIRCRAFT

0
27. 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.


0
28. 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.
* * * * *

0
29. In Sec.  175.25, paragraphs (b) and (c)(1) are revised to read as 
follows:


Sec.  175.25  Notification at air passenger facilities of hazardous 
materials restrictions.

* * * * *
    (b) Ticket purchase. An aircraft operator must ensure that 
information on the types of hazardous materials specified in paragraph 
(a) of this section a passenger is permitted and forbidden to transport 
aboard an aircraft is provided at the point of ticket purchase. During 
the purchase process, regardless if the process is completed remotely 
(e.g., via the Internet or phone) or when completed at the airport, 
with or without assistance from another person (e.g., automated check-
in facility), the aircraft operator must ensure that information on the 
types of hazardous materials a passenger is forbidden to transport 
aboard an aircraft is provided to passengers. Information may be in 
text or in pictorial form and, effective January 1, 2015, must be such 
that the final ticket purchase cannot be completed until the passenger 
or a person acting on the passenger's behalf has indicated that it 
understands the restrictions on hazardous materials in baggage.
    (c) * * *
    (1) Effective January 1, 2015, when the flight check-in process is 
conducted remotely (e.g., via the Internet or phone) or when completed 
at the airport, without assistance from another person (e.g., automated 
check-in kiosk), the aircraft operator must ensure that information on 
the types of hazardous materials a passenger is forbidden to transport 
aboard an aircraft is provided to passengers. Information may be in 
text or in pictorial form and should be such that the check in process 
cannot be completed until the passenger or a person acting on the 
passenger's behalf has indicated that it understands the restrictions 
on hazardous materials in baggage.
* * * * *

PART 176--CARRIAGE BY VESSEL

0
30. The authority citation for part 176 continues to read as follows:

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


0
31. 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[emsp14][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[emsp14][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;
    (3) The vehicle or mechanical equipment is electrically powered 
solely by wet electric storage batteries (including nonspillable 
batteries) or sodium batteries; or
    (4) 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

0
32. The authority citation for part 178 continues to read as follows:

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


[[Page 1118]]



0
33. 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
* * * * *

0
34. In Sec.  178.601, paragraph (c)(4)(v) is revised to read as 
follows:


Sec.  178.601  General requirements.

* * * * *
    (c) * * *
    (4) * * *
    (v) Packagings which differ from the design type only in their 
lesser design height; or
* * * * *

    Issued in Washington, DC, on December 20, 2012 under authority 
delegated in 49 CFR part 1.
Cynthia Quarterman,
Administrator.
[FR Doc. 2012-31242 Filed 12-31-12; 4:15 pm]
BILLING CODE 4910-60-P