# Hazardous Materials: Harmonization With International Standards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-06956 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** April 10, 2024 - **Citation:** 89 FR 25434 ## Text DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 175, 176, 178, and 180 [Docket No. PHMSA-2021-0092 (HM-215Q)] RIN 2137-AF57 Hazardous Materials: Harmonization With International Standards AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: PHMSA is amending the Hazardous Materials Regulations (HMR) to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. PHMSA is also withdrawing the unpublished November 28, 2022, Notice of Enforcement Policy Regarding International Standards on the use of select updated international standards in complying with the HMR during the pendency of this rulemaking. DATES: Effective date: This rule is effective May 10, 2024. Voluntary compliance date: January 1, 2023. Delayed compliance date: April 10, 2025. Incorporation by reference date: The incorporation by reference of certain publications listed in this rule is approved by the Director of the Federal Register on May 10, 2024. FOR FURTHER INFORMATION CONTACT: Steven Andrews, Standards and Rulemaking, or Candace Casey, Standards and Rulemaking, at 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, East Building, 2nd Floor, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background III. Incorporation by Reference Discussion Under 1 CFR Part 51 IV. Comment Discussion V. Section-by-Section Review of Amendments VI. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Orders 12866 and 14094, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Unfunded Mandates Reform Act of 1995 H. Environment Assessment I. Privacy Act J. Executive Order 13609 and International Trade Analysis K. National Technology Transfer and Advancement Act L. Executive Order 13211 M. Cybersecurity and Executive Order 14028 N. Severability I. Executive Summary As discussed in further detail in this final rule ( see V. Section-by-Section Review of Amendments), the Pipeline and Hazardous Materials Safety Administration (PHMSA) amends certain sections of the Hazardous Materials Regulations (HMR; 49 CFR parts 171 through 180) to maintain alignment with international regulations and standards by adopting various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. Furthermore, this final rule addresses the 21 sets of comments received in response to the Notice of Proposed Rulemaking (NPRM) 1 published in May 2023. Overall, the comments to the NPRM were generally supportive of the proposals made; however, PHMSA did receive a few comments seeking further clarification or revisions to the NPRM, which PHMSA also addresses in this final rule. PHMSA expects that the adoption of the regulatory amendments in this final rule will facilitate transportation efficiency while maintaining the high safety standard currently achieved under the HMR. For example, the final rule will update several International Organization for Standards (ISO) standards; revise requirements for the shipping of lithium batteries; and set specification for the construction of Intermediate Bulk Containers (IBCs) constructed from recycled resins. This final rule will also align HMR requirements with anticipated increases in the volume of lithium batteries transported in interstate commerce from electrification of the transportation and other economic sectors. PHMSA also notes that the harmonization of the HMR with international consensus standards could reduce delays and interruptions of hazardous materials during transportation. The amendments may also lower greenhouse gas (GHG) emissions and safety risks, including risks to minority, low income, underserved, and other disadvantaged populations, and communities in the vicinity of interim storage sites and transportation arteries and hubs. The following list summarizes the more noteworthy amendments set forth in this final rule: 1 88 FR 34568 (May 30, 2023). • Incorporation by Reference: PHMSA is incorporating by reference updated versions of the following international hazardous materials regulations and standards: the 2023-2024 edition of the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions); Amendment 41-22 to the International Maritime Dangerous Goods Code (IMDG Code); and the 22nd revised edition of the United Nations Recommendations on the Transport of Dangerous Goods—Model Regulations (UN Model Regulations). • Hazardous Materials Table: PHMSA is amending the Hazardous Materials Table (HMT; 49 CFR 172.101) to add, revise, or remove certain proper shipping names (PSNs), hazard classes, packing groups (PGs), special provisions (SPs), packaging authorizations, bulk packaging requirements, and passenger and cargo-only aircraft maximum quantity limits. • Polymerizing Substances: In 2017—as part of the HM-215N final rule 2 —PHMSA added four new Division 4.1 (flammable solid) entries for polymerizing substances to the HMT and added defining criteria, authorized packagings, and safety requirements, including, but not limited to, stabilization methods and operational controls into the HMR. These changes remained in effect until January 2, 2019, while PHMSA used the interim period to review and research the implications of the polymerizing substance amendments. In 2020—as part of the HM-215O 3 final rule—PHMSA extended the date the provisions remained in effect from January 2, 2019, to January 2, 2023, to allow for the additional research to be completed on the topic. In this final rule, PHMSA is removing the phaseout date (January 2, 2023) from the transport provisions for polymerizing substances to allow for continued use of the provisions. 2 82 FR 15796 (Mar. 30, 2017). 3 85 FR 27810 (May 11, 2020). • Cobalt dihydroxide powder containing not less than 10 percent respirable particles: PHMSA is adding a new entry to HMT, “UN3550 Cobalt dihydroxide powder, containing not less than 10% respirable particles, ” and corresponding packaging provisions. Cobalt is a key strategic mineral used in various advanced medical and technical applications around the world, including various types of batteries. Historically, this hazardous material has been classified and transported as a Class 9 material under “UN3077, Environmentally hazardous substance, solid, n.o.s.;” however, testing required under Registration, Evaluation, Authorisations and Restriction of Chemicals (REACH) regulations 4 for comprehensive GHS testing determined that this material poses an inhalation toxicity hazard. Following this determination, the 22nd revised edition of the UN Model Regulations developed a new entry on the Dangerous Goods List (DGL) and packaging authorizations specifically for this hazardous material to facilitate continued global transport of this material. In this final rule, PHMSA is adding a new entry for cobalt dihydroxide containing not less than 10 percent respirable particles and assigning it UN3550 in the HMT, in addition to adding packaging provisions, including the authorization to transport this material in flexible IBCs. PHMSA expects these provisions will facilitate the continued transport of this material and keep global supply chains open. See 172.101 of the V. Section-by-Section Review of Amendments for additional discussion of these amendments. 4 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006. • Lithium Battery Exceptions: PHMSA is removing the exceptions provided for small lithium cells and batteries for transportation by aircraft. This is consistent with the elimination of similar provisions in the ICAO Technical Instructions. See 173.185 of the V. Section-by-Section Review of Amendments for additional discussion of these amendments. All the amendments are expected to maintain the HMR's high safety standard for the public and the environment. Additionally, PHMSA anticipates that there are safety benefits to be derived from improved compliance related to consistency amongst domestic and international regulations. As further explained in the final regulatory impact analysis (RIA), PHMSA expects that the benefits of each of the amendments (both separately and in the aggregate) in this final rule justify any associated compliance costs. PHMSA estimates that the annualized quantified net cost savings of this rulemaking, using a two percent discount rate, are approximately $6.3 to $14.7 million per year. II. Background The Federal Hazardous Materials Transportation Law (49 U.S.C. 5101, et seq. ) directs PHMSA to participate in relevant international standard-setting bodies and encourages alignment of the HMR with international transport standards, as consistent with promotion of safety and the public interest. See 49 U.S.C. 5120. This statutory mandate reflects the importance of international standard-setting activity, in light of the globalization of commercial transportation of hazardous materials. Harmonization of the HMR with those efforts can reduce the costs and other burdens of complying with multiple or inconsistent safety requirements among nations. Consistency between the HMR and current international standards can also enhance safety by: • Ensuring that the HMR are informed by the latest best practices and lessons learned. • Improving understanding of, and compliance with, pertinent requirements. • Facilitating the flow of hazardous materials from their points of origin to their points of destination, thereby avoiding risks to the public and the environment from release of hazardous materials due to delays or interruptions in the transportation of those materials. • Enabling consistent emergency response procedures in the event of a hazardous materials incident. PHMSA participates in the development of international regulations and standards for the transportation of hazardous materials. It also adopts within the HMR international consensus standards and regulations consistent with PHMSA's safety mission. PHMSA reviews and evaluates each international standard it considers for incorporation within the HMR on its own merits, including the effects on transportation safety, the environmental impacts, and any economic impact. PHMSA's goal is to harmonize with international standards without diminishing the level of safety currently provided by the HMR or imposing undue burdens on the regulated community. In final rule HM-181, 5 PHMSA's predecessor—the Research and Special Programs Administration (RSPA)—comprehensively revised the HMR for greater consistency with the UN Model Regulations. The UN Model Regulations constitute a set of recommendations issued by the United Nations Sub-Committee of Experts (UNSCOE) on the Transport of Dangerous Goods and on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The UN Model Regulations are amended and updated biennially by the UNSCOE and serve as the basis for national, regional, and international modal regulations, including the ICAO Technical Instructions and IMDG Code. 5 55 FR 52401 (Dec. 21, 1990). PHMSA has evaluated recent updates to the international standards, including review of numerous updated standards for the design, manufacture, testing, and use of packagings, and is revising the HMR to adopt changes consistent with revisions to the 2023-2024 edition of the ICAO Technical Instructions, Amendment 41-22 to the IMDG Code, and the 22nd revised edition of the UN Model Regulations, all of which were published by or in effect on January 1, 2023, 6 while also ensuring the changes are consistent with PHMSA's safety mission. Consequently, PHMSA is incorporating by reference these revised international regulations, several new or updated ISO standards, and a new Organization for Economic Co-operation and Development (OECD) standard. The regulations and standards incorporated by reference are authorized for use for domestic transportation, under specific conditions, in part 171, subpart C of the HMR. 6 Amendment 41-22 of the IMDG Code became mandatory on January 1, 2024. Voluntary compliance began on January 1, 2023. Lastly, PHMSA issued a Notice of Enforcement Policy Regarding International Standards 7 on November 28, 2022, stating that while PHMSA was considering the 2023-2024 Edition of the ICAO Technical Instructions and Amendment 41-22 to the IMDG Code for potential adoption into the HMR, PHMSA and other federal agencies that enforce the HMR— e.g., the Federal Railroad Administration, the Federal Aviation Administration (FAA), the Federal Motor Carrier Safety Administration, and the United States Coast Guard—would not take enforcement action against any offeror or carrier who uses these standards as an alternative to complying with current HMR requirements when all or part of the transportation is by air with respect to the ICAO Technical Instructions, or by vessel with respect to the IMDG Code. In addition, that Notice stated PHMSA, and its modal partners, would not take enforcement action against any offeror or carrier who offers or accepts for domestic or international transportation by any mode packages marked or labeled in accordance with those updated standards. PHMSA now withdraws its November 28, 2022, Notice of Enforcement Policy Regarding International Standards as of the effective date of this final rule. 7 PHMSA, Notice of Enforcement Policy Regarding International Standards (Nov. 28, 2022), https://www.phmsa.dot.gov/regulatory-compliance/phmsa-guidance/phmsa-notice-enforcement-policy-regarding-international. III. Incorporation by Reference Discussion Under 1 CFR Part 51 According to the Office of Management and Budget (OMB), Circular A-119, “ Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities, ” government agencies must use voluntary consensus standards wherever practical in the development of regulations. PHMSA currently incorporates by reference into the HMR all or parts of numerous standards and specifications developed and published by standard development organizations (SDO). In general, SDOs update and revise their published standards every two to five years to reflect modern technology and best technical practices. The National Technology Transfer and Advancement Act of 1995 (NTTAA; Pub. L. 104-113) directs federal agencies to use standards developed by voluntary consensus standards bodies in lieu of government-written standards whenever possible. Voluntary consensus standards bodies develop, establish, or coordinate technical standards using agreed-upon procedures. OMB issued Circular A-119 to implement section 12(d) of the NTTAA relative to the utilization of consensus technical standards by federal agencies. This circular provides guidance for agencies participating in voluntary consensus standards bodies and describes procedures for satisfying the reporting requirements in the NTTAA. Accordingly, PHMSA is responsible for determining which standards currently referenced in the HMR should be updated, revised, or removed, and which standards should be added to the HMR. Revisions to materials incorporated by reference in the HMR are handled via the rulemaking process, which allows for the public and regulated entities to provide input. During the rulemaking process, PHMSA must also obtain approval from the Office of the Federal Register to incorporate by reference any new materials. The Office of the Federal Register issued a rulemaking 8 that revised 1 CFR 51.5 to require that an agency detail in the preamble of an NPRM the ways the materials it proposes to incorporate by reference are reasonably available to interested parties, or how the agency worked to make those materials reasonably available to interested parties. Changes to the materials incorporated by reference in the HMR are discussed in detail in the § 171.7 discussion in “V. Section-by-Section Review of Amendments” section of this document.” 8 79 FR 66278 (Nov. 7, 2014). IV. Comment Discussion In response to the NPRM, PHMSA received 21 sets of comments from the following organizations and other interested parties: American Association for Laboratory Accreditation (A2LA) https://www.regulations.gov/comment/PHMSA-2021-0092-0011 . Anonymous https://www.regulations.gov/comment/PHMSA-2021-0092-0004 . Airline Pilots Association International (ALPA) https://www.regulations.gov/comment/PHMSA-2021-0092-0019 . Compressed Gas Association (CGA) https://www.regulations.gov/comment/PHMSA-2021-0092-0010 . Council on Safe Transportation of Hazardous Articles (COSTHA) https://www.regulations.gov/comment/PHMSA-2021-0092-0015 . Dangerous Goods Advisor https://www.regulations.gov/comment/PHMSA-2021-0092-0024 . Dangerous Goods Advisory Council (DGAC) https://www.regulations.gov/comment/PHMSA-2021-0092-0009 . Dow Chemical Company https://www.regulations.gov/comment/PHMSA-2021-0092-0014 . Entegris https://www.regulations.gov/comment/PHMSA-2021-0092-0006 . Entegris https://www.regulations.gov/comment/PHMSA-2021-0092-0005 . Entegris https://www.regulations.gov/comment/PHMSA-2021-0092-0007 . Entegris https://www.regulations.gov/comment/PHMSA-2021-0092-0021 . Entegris https://www.regulations.gov/comment/PHMSA-2021-0092-0018 . Hexagon Digital Wave, LLC https://www.regulations.gov/comment/PHMSA-2021-0092-0022 . Household Commercial Products Association (HCPA) https://www.regulations.gov/comment/PHMSA-2021-0092-0017 . Institute of Hazardous Materials Management (IHMM) https://www.regulations.gov/comment/PHMSA-2021-0092-0012 . Medical Device Transport Council (MDTC) https://www.regulations.gov/comment/PHMSA-2021-0092-0016 . Nordco Inspection Technologies https://www.regulations.gov/comment/PHMSA-2021-0092-0022 . PRBA—The Rechargeable Battery Association https://www.regulations.gov/comment/PHMSA-2021-0092-0016 . Reusable Industrial Packaging Association (RIPA) https://www.regulations.gov/comment/PHMSA-2021-0092-0008 . The Rigid Intermediate Bulk Container Association, Inc. (RIBCA) https://www.regulations.gov/comment/PHMSA-2021-0092-0016 . PHMSA received comments from the A2LA, ALPA, COSTHA, DGAC, HCPA, MDTC, and PRBA, all providing general support for harmonization with international standards with additional support from Entegris, and Hexagon Digital Wave for the incorporation by reference of the ISO standards applicable to cylinders. Comments concerning the compliance date for the phaseout dates for ISO standards, gas mixtures containing fluorine, IBCs manufactured from recycled plastics, and comments outside the scope of this rulemaking are discussed below. All other comments specific to proposed changes to HMR sections are addressed in the “V. Section-by-Section Review of Amendments” of this document. A. Comments Outside the Scope of This Rulemaking PHMSA received comments from HCPA and MDTC to reconsider the definition of an aerosol in § 171.8 in order to maintain alignment with international regulations and standards. The commenters note that the United Nations (UN) Model Regulations define an aerosol as an article consisting of a non-refillable receptacle containing a gas, compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder, or in a liquid or gaseous state. The HMR defines an aerosol in § 171.8 as an article consisting of any non-refillable receptacle containing a gas compressed, liquefied, or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder, and fitted with a self-closing release device allowing the contents to be ejected by the gas. PHMSA acknowledges the commenter's concerns over the HMR definition of an aerosol not being harmonized with the UN Model Regulations. However, PHMSA did not propose changes in the NPRM and, therefore, declines to make such revisions in this final rule without further evaluation by PHMSA subject matter experts and an opportunity for stakeholders to comment on the issue. PHMSA will continue to evaluate the potential harmonization of the aerosol definition with the international regulations in conjunction with a petition request from the Consumer Specialty Product Association (CSPA). 9 9 https://www.regulations.gov/docket/PHMSA-2017-0131/document . PHMSA received comments from Entegris, Hexagon Digital Wave, and Nordco Inspection Technologies suggesting that ISO 18119:2018, “Gas Cylinders—Seamless Steel And Seamless Aluminum-Alloy Gas Cylinders And Tubes—Periodic Inspection and Testing,” be incorporated by reference into § 171.7(w), and that § 180.207(d)(1) and (d)(2) be revised to reference ISO 18119:2018. The commenters note that ISO 6406:2005(E), “Gas cylinders—Seamless steel gas cylinders—Periodic inspection and testing,” and ISO 10461:2005(E), “Gas cylinders—Seamless aluminum-alloy gas cylinders—Periodic inspection and testing,” have now been superseded by ISO 18119:2018 in the ISO catalogue. Further, the commenters note that at the end of 2024, the UN Model Regulations will no longer acknowledge ISO 6406:2005(E) and 10461:2005(E). PHMSA acknowledges the comments for PHMSA to incorporate by reference ISO 18119:2018 into § 171.7(w), and revise § 180.207 (d)(1) and (d)(2) to reference ISO 18119:2018. However, PHMSA did not propose changes in the NPRM and, therefore, declines to make such revisions in this final rule without further evaluation by PHMSA subject matter experts and an opportunity for stakeholders to comment on the issue. PHMSA has received petitions from both FIBA technologies 10 and Hazmat Safety Consulting 11 proposing to incorporate by reference ISO 18119:2018 into § 171.1, and PHMSA plans to propose this revision in an upcoming rulemaking. 10 https://www.regulations.gov/docket/PHMSA-2020-0168/document . 11 https://www.regulations.gov/document/PHMSA-2023-0088-0001 . IHMM submitted comments highlighting three accredited professional certifications—the Certified Hazardous Materials Manager (CHMM), the Certified Hazardous Materials Practitioner (CHMP), and the Certified Dangerous Goods Professional (CDGP)—that demonstrate expertise in managing hazardous materials, and recommends that PHMSA require companies transporting hazardous materials to appoint certified professionals responsible for regulatory compliance, similar to the dangerous goods safety advisor required by the Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) within the European Union (EU). IHMM believes that in addition to harmonizing standards, governments should harmonize responsibility for the safe transportation of hazardous materials and dangerous goods. IHMM recommends that PHMSA use its authority to require certified professionals oversee compliance at companies engaged in hazardous materials transportation. PHMSA acknowledges the IHMM's comment concerning certified professionals. However, PHMSA did not propose such changes in the NPRM and, therefore, declines to make such revisions in this final rule without further evaluation by PHMSA subject matter experts and an opportunity for stakeholders to comment on the issue. If the commenter has a specific proposal, PHMSA encourages the commenter to submit a petition for rulemaking in accordance with § 106.100 of the HMR. A2LA supports the proposed amendments and actions that are being considered in this rulemaking to be consistent with international standards to harmonize activities and promote greater safety and efficiencies. A2LA also encourages PHMSA to take this a step further by recommending that when testing is required, that laboratories approved under ISO/IEC 17025, “Testing and calibration laboratories,” be relied upon for testing activities. A2LA asserts that this will help ensure data generated for HMR compliance is developed by accredited bodies. A2LA adds that this revision would provide and establish a framework for the harmonization of accreditation activities globally. PHMSA acknowledges A2LA's comment concerning laboratories approved under ISO/IEC 17025. However, PHMSA did not propose such changes in the NPRM and, therefore, declines to make such revisions in this final rule without further evaluation by PHMSA subject matter experts and an opportunity for stakeholders to comment on the issue. If the commenter has a specific proposal, PHMSA encourages the commenter to submit a petition for rulemaking in accordance with § 106.100 of the HMR. B. Phaseout Dates for ISO Standards CGA and Entegris submitted comments regarding the proposed incorporation of ISO 11117:2019, “Gas cylinders—Valve protection caps and guards—Design, construction and tests,” into § 173.301b(c)(2)(ii). CGA and Entegris note that the language proposed in § 173.301b(c)(2)(ii) of the NPRM removes ISO 11117:2008 and creates a phaseout date of December 31, 2026, for its use. To ensure the continued use of existing caps made to previous editions of ISO 11117, CGA and Entegris suggest a revision to § 173.301b(c)(2)(ii) that more closely aligns with sub-paragraph 4.1.6.1.8 of the 22nd edition of the UN Model Regulations. The revision proposed by CGA and Entegris would make it clear that valve caps manufactured up until December 31, 2026, under ISO 11117:2008 could continue to be used under the HMR. CGA and Entegris add that the proposed text in the NPRM would result in an unnecessary economic burden by mandating the replacement of valve protection caps under the HMR that would remain authorized by the UN Model Regulations. Entegris adds that consideration should be given to permit the use of these older valve caps that adhere to ISO 11117:2008. PHMSA concurs with CGA and Entegris that the intent of the language in the UN Model Regulations was to allow the continued use of the valve protection caps under ISO 11117:2008 provided they are manufactured prior to December 31, 2026. As such, PHMSA is revising the text in § 173.301b(c)(2)(ii) to more closely align with the intent of the UN Model Regulations and allow for the continued use of valve caps manufactured prior to December 31, 2026, under ISO 11117:2008. CGA also provided comments suggesting that PHMSA modify the regulatory text for all the IBR ISO standards in §§ 178.71 and 178.75 to permit the manufacturing of UN cylinders conforming to the ISO standards being replaced until December 31, 2026, to better align the HMR with the intent of the 22nd edition of the UN Model Regulations. PHMSA concurs with CGA's comment that the intent of this proposal was to closely align with the phaseout language in the UN Model Regulations. As such, PHMSA has revised the text for the ISO publications in §§ 178.71 and 178.75 to better reflect the phaseout dates as intended and represented in the UN Model Regulations. C. Gas Mixtures Containing Fluorine In the NPRM, PHMSA proposed a new special provision for UN pressure receptacles containing fluorine mixed with inert gases. This proposal was intended to provide flexibility for the maximum allowable working pressure for cylinders containing fluorine gas when fluorine is part of a less reactive gas mixture. This revision was supported due to pure fluorine gas being highly reactive and restrictive, while gas mixtures with small amounts of fluorine are less hazardous. The 22nd edition of the UN Model Regulations allows for higher working pressures for cylinders containing gas mixtures of fluorine with inert gases based on the application of partial pressure calculations. In the NPRM, PHMSA proposed to add special provision 441 to § 172.102 to align with revisions made to the UN Model Regulations for gas mixtures containing fluorine. The NPRM assigned special provision 441 to the proper shipping name “UN1045, Fluorine, compressed” in the HMT. CGA and Entegris provided comments stating that the proposed special provision 441 in the NPRM should not be applied to “UN1045, Fluorine, compressed,” as mixtures of fluorine with inert gases and a fluorine concentration 35 °C. Additionally, rather than classifying ethyl bromide solely as a Class 3 flammable liquid, it was determined that the Division 6.1 hazard still applies and should remain assigned as a subsidiary hazard. This is consistent with the HMR precedence of hazard table in § 173.2a, which states that a material that meets criteria for classification as both Class 3 and Division 6.1 (except for when a material meets the PG I poison-by-inhalation criteria), the flammability hazard takes precedence and is the primary hazard. These changes in hazard class and associated packaging requirements were adopted to ensure that the hazards of ethyl bromide are accurately communicated and appropriately packaged. PHMSA reviewed these findings and agrees it is appropriate to classify ethyl bromide as a flammable liquid, with a subsidiary Division 6.1 hazard. Because of this change in hazard class, additional conforming changes to the HMT entry for ethyl bromide are required in column (6), as discussed below. Additionally, PHMSA expects that clearly identifying the flammability hazard posed by this material will improve safety by ensuring that the material is handled appropriately before and during transport. Column (6) Label Codes Section 172.101(g) describes column (6) of the HMT, which contains label codes representing the hazard warning labels required for a package filled with a material conforming to the associated hazard class and proper shipping name, unless the package is otherwise excepted from labeling. The first code is indicative of the primary hazard of the material. Additional label codes are indicative of subsidiary hazards. As discussed above, PHMSA is modifying the primary hazard class for “UN1891, Ethyl bromide” to Class 3. Consistent with this change, PHMSA is assigning Class 3 as the primary hazard label and Division 6.1 as a subsidiary hazard label. Consequently, PHMSA is amending column (6) of the HMT for this entry to reflect the warning labels required for the transport of this hazardous material. PHMSA expects that this change will improve safety by clearly communicating the transportation hazards of this material. Column (7) Special Provisions Section 172.101(h) describes column (7) of the HMT, which assigns special provisions for each HMT entry. Section 172.102 provides for the meaning and requirements of the special provisions assigned to entries in the HMT. The revisions to column (7) of certain entries in the HMT are discussed below. Special Provision 396 PHMSA is adding a new special provision, Special Provision 396, and assigning it to “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.” DGAC noted that PHMSA had inadvertently left out Special Provision 396 in column 7 for “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.” PHMSA has revised that editorial error in this final rule. For additional information, see § 172.102 of the Section-by-Section Review. Special Provision 398 PHMSA is assigning a newly added special provision, Special Provision 398, which pertains to the potential classification of butylene and butylene mixtures as UN1012. This special provision clarifies that butylene mixtures and certain butylene isomers may be assigned to UN1012, while specifically excluding isobutylene from this UN classification. For additional information, see § 172.102 of the Section-by-Section Review. Special Provisions A4 and A5 PHMSA is assigning Special Provision A4 to the entry “UN2922, Corrosive liquid, toxic, n.o.s.” and Special Provision A5 to the entry “UN2923, Corrosive solid, toxic, n.o.s.” Special Provisions A4 and A5 address liquids and solids in PG I that also pose an inhalation toxicity hazard by limiting or prohibiting their transportation on aircraft. In principle, all liquids or solids that have an inhalation toxicity hazard, and assigned PG I, should be subject to one of the two special provisions, as appropriate. However, UN2922 and UN2923 are assigned Class 8 as the primary hazard and Division 6.1 as a subsidiary hazard because of classification guidelines that require hazardous materials that meet the criteria of Class 8, and have an inhalation toxicity of dusts and mists (LC50) in the range of PG I, but toxicity through oral ingestion or dermal contact only in the range of PG III or less, must be assigned to Class 8 as the primary hazard rather than Division 6.1. In reviewing these provisions, the ICAO Dangerous Goods Panel (DGP) determined that additional restrictions should be implemented for these hazardous materials as the corrosive classification assigned to UN2922 and UN2923 does not negate the inhalation toxicity hazard. Because of the inhalation hazard posed by these materials, the 2023-2024 ICAO Technical Instructions included an amendment to impose quantity limits for transportation of these materials by air. PHMSA agrees with this determination and therefore is assigning Special Provision A4 to UN2922, which prohibits this material from transport on passenger and cargo-only aircraft. PHMSA also is assigning Special Provision A5 to UN2923, which prohibits this material on passenger aircraft and limits the amount that may be transported on cargo-only aircraft. PHMSA expects that correcting this conflict will improve safety by prohibiting corrosive materials that also pose inhalation hazards on passenger aircraft and limiting their transport on cargo-only aircraft. Special Provisions A224 and A225 PHMSA is adding two new air special provisions, A224 and A225, and assigning them to HMT entries “UN3548, Articles containing miscellaneous dangerous goods, n.o.s.” and “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.,” respectively. These special provisions allow for the transport on both passenger aircraft and cargo-only aircraft under certain conditions. For additional information, see 172.102 of the Section-by-Section Review. Also, see § 172.102 of the Section-By-Section Review below for a detailed discussion of the special provision amendments addressed in this final rule. DGAC and MDTC provided comments in support of this revision. Column (8) Packaging Section 172.101(i) explains the purpose of column (8) in the HMT. Columns (8A), (8B), and (8C) specify the applicable sections for exceptions, non-bulk packaging requirements, and bulk packaging requirements, respectively. Columns (8A), (8B), and (8C) are completed in a manner which indicates that “§ 173.” precedes the designated numerical entry. Column (8A) contains exceptions from some of the requirements of this subchapter. The referenced exceptions are in addition to those specified in subpart A of part 173 and elsewhere in subchapter C. The word “None” in this column means no packaging exceptions are authorized, except as may be provided by special provisions in column (7). For example, the entry “151” in column (8A), associated with the proper shipping name “Nitrocellulose with water,” indicates that, for this material, packaging exceptions are provided in § 173.151 of this subchapter. PHMSA is removing references to § 173.151, which provides exceptions for Class 4 hazardous materials, in column (8A), and adding the word “None” for three solid desensitized explosive entries: “UN2555, Nitrocellulose with water with not less than 25 percent water by mass; ” “UN2556, Nitrocellulose with alcohol with not less than 25 percent alcohol by mass, and with not more than 12.6 percent nitrogen, by dry mass; ” and “UN2557, Nitrocellulose, with not more than 12.6 percent nitrogen, by dry mass mixture with or without plasticizer, with or without pigment.” These changes remove the applicability of the limited quantity exceptions for these hazardous materials to correct an inconsistency regarding solid desensitized explosives. Consistent with the UN Model Regulations, PHMSA has not authorized limited quantity packaging exceptions for 30 other solid desensitized explosives. 20 Solid desensitized explosives are explosive substances that are wetted with water or alcohols, or are diluted with other substances, to form a homogeneous solid mixture to suppress their explosive properties. Like PG I materials, solid desensitized explosives in PG II are specifically prohibited from transport under the limited quantity provisions in the UN Model Regulations. However, this inconsistency was identified with respect to air transport by the ICAO DGP, resulting in a similar amendment in the 2023-2024 ICAO Technical Instructions. In this final rule, PHMSA is also making related editorial amendments in § 173.27, general requirements for transportation by aircraft. (See additional discussion in § 173.27 of Section-by-Section Review.) PHMSA expects that correcting this oversight to require these nitrocellulose mixtures be transported in accordance with all requirements of the HMR, rather than permitting the use of the limited quantity exceptions in § 173.151, will not only add an additional level of safety, but also facilitate the transport of these materials by streamlining packaging and hazard communication requirements to be consistent with requirements for similar materials and with international regulations. 20 UN1310, UN1320, UN1321, UN1322, UN1336, UN1337, UN1344, UN1347, UN1348, UN1349, UN1354, UN1355, UN1356, UN1357, UN1517, UN1571, UN2555, UN2556, UN2557, UN2852, UN2907, UN3317, UN3319, UN3344, UN3364, UN3365, UN3366, UN3367, UN3368, UN3369, UN3370, UN3376, UN3380, and UN3474.UN1517, UN1571, UN2555, UN2556, UN2557, UN2852, UN2907, UN3317, UN3319, UN3344, UN3364, UN3365, UN3366, UN3367, UN3368, UN3369, UN3370, UN3376, UN3380, and UN3474. Column (9) Quantity Limitations Section 172.101(j) explains the purpose of column (9) in the HMT. Column (9) specifies quantity limitations for packages transported by air and rail. Column (9) is divided into two columns: column (9A) provides quantity limits for passenger aircraft/rail, and column (9B) provides quantity limits for cargo-only aircraft. Consistent with changes adopted in the 2023-2024 edition of the ICAO Technical Instructions, PHMSA is amending the quantity limitations for UN 1891, Ethyl bromide, when transported by passenger aircraft. Previously, the maximum net quantity per package for passenger aircraft was 5 L on the Dangerous Goods List of the ICAO Technical Instructions; this same quantity limit is currently in place for passenger aircraft, as indicated in column (9A) of the HMT. As a result of the reclassification of UN1891 as a Class 3 flammable liquid, the permitted quantity was reduced in the ICAO Technical Instructions to 1L per packaging. This change is in line with the quantity limits for many other Class 3 materials. PHMSA is making a corresponding change for passenger aircraft limits in column (9A). With regard to cargo-only aircraft, no changes to the 60 L maximum net quantity were made in the ICAO Technical Instructions, as that limit is the same for Class 3 and Division 6.1 materials. PHMSA expects that this change will provide an additional level of safety commensurate to the newly recognized flammability hazard posed by this material. PHMSA is modifying the packaging limits aboard cargo-only aircraft for three battery entries: “UN2794, Batteries, wet, filled with acid, electric storage;” “UN2795, Batteries, wet, filled with alkali, electric storage;” and “UN3292, Batteries, containing sodium.” Specifically, these changes limit the quantity per packaging to 400 kg, as there is currently no limit for these items. Typically, these articles must be packed in UN specification packagings, and 400 kg is the maximum quantity permitted in such packagings. These changes are consistent with changes made in the 2023-2024 ICAO Technical Instructions, which were made as a correction to an inconsistency between the ICAO Technical Instructions and the UN Model Regulations. Therefore, in column (9B) of the HMT, the words “no limit” will be replaced by 400 kg. PHMSA expects that this change will streamline packaging requirements by providing packaging limits for similar items in similar packagings, consistent with analogous international regulations. This streamlining will also increase safety by increasing clarity on the packaging limits for these similar items. Section 172.102 Special Provisions Section 172.102 lists special provisions applicable to the transportation of specific hazardous materials. Special provisions include packaging requirements, prohibitions, and exceptions applicable to particular quantities or forms of hazardous materials. PHMSA is making the following revisions to the special provisions in this section: Special Provision 78 Special Provision 78 currently states that “UN1002, Air, compressed” may not be used to describe compressed air that contains more than 23.5% oxygen. It also stipulates that compressed air containing more than 23.5% oxygen must be shipped using the description “UN3156, Compressed gas, oxidizing, n.o.s.,” which has a Class 5 subsidiary hazard classification. PHMSA is amending Special Provision 78 to provide additional clarity with regard to the permitted use of the proper shipping description UN1002. In an effort to address specific mixtures of nitrogen and oxygen that are commercially called “synthetic air,” the 22nd revised edition of the UN Model Regulations includes a new special provision that was intended to clarify that “synthetic air” may be transported under UN1002, provided that it does not contain more than 23.5% oxygen. “Synthetic air” is typically a mixture containing up to 23.5% oxygen with the balance being nitrogen. This mixture is used in a variety of applications, including medical and non-medical, and may be used when ambient air is not sufficient due to the presence of contaminants. This new special provision specifies that mixtures of nitrogen and oxygen containing not less than 19.5% and not more than 23.5% oxygen by volume may be transported under UN1002 when no other oxidizing gases are present. It also states that a Division 5.1 subsidiary hazard label is not required for any concentrations within this limit. While this language is not drastically different than the current language in the HMR, PHMSA expects that rewording Special Provision 78 to include the 19.5% lower bound for oxygen and the note regarding the use of the Division 5.1 subsidiary hazard label will improve safety by providing clearer and more useful instructions for shippers of compressed synthetic air. Special Provision 156 PHMSA is amending Special Provision 156 to require that, when transported by air, a shipping paper, such as an air waybill, accompanying the shipment must indicate that the package containing asbestos is not restricted for shipment. Currently, this special provision excepts asbestos from the requirements of 49 CFR Subchapter C when it is immersed or fixed in a natural or artificial binder—such as cement, plastics, asphalt, resins, or mineral ore—in such a way that no escape of hazardous quantities of respirable asbestos fibers can occur. It was noted that confusion over whether a shipment was or was not excepted from the regulations had led to delays and frustrated shipments. The 2023-2024 ICAO Technical Instructions amended a similar special provision to assist in providing evidence of compliance with its requirements. PHMSA's revision to Special Provision 156 requires that, when transported by air, packages or shipping documentation be marked to indicate that the package containing asbestos is not restricted for shipment. PHMSA expects that this requirement will facilitate the safe shipment of asbestos by preventing them from being mistaken as fully regulated hazardous materials. Special Provision 387 Special Provision 387 provides shippers of polymerizing substances with information regarding stabilization requirements for their shipments. As discussed below, in an earlier rulemaking, PHMSA placed sunset dates on the HMR provisions concerning transport provisions for polymerizing substances to allow time for the completion of research on various topics concerning their transport, and to gather and review empirical evidence concerning the appropriate transport provisions for polymerizing substances. In line with other amendments in this final rule for the transport of polymerizing substances, PHMSA is amending Special Provision 387 to remove the sunset date of January 2, 2023. The result of this amendment is that the existing stabilization requirements noted in this special provision remain and the sunset date is removed. DGAC and Dow Chemical provided comments in support of this revision. See 173.21 of the Section-by-Section Review for the full discussion of changes pertaining to polymerizing substances. Special Provision 396 PHMSA is adding a new special provision, Special Provision 396, and assigning it to “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s,” to authorize the transport of large and robust articles ( e.g., transformers) that include cylinders containing UN1066 “Nitrogen,” UN1956 “Compressed gas N.O.S.,” or UN1002 “Air, compressed” with the valves open to allow low quantities of gas to be constantly supplied through a pressure regulator from a gas cylinder connected to the transformer. Similar provisions were added in the 22nd revised edition of the UN Model Regulations and Amendment 41-22 of the IMDG Code to address shipments of transformers, which are typically pressurized with nitrogen or air but are not gas tight. Prior to 2020, transformers were transported as “UN 3363, Dangerous Goods in Machinery/Apparatus;” however, the packing provisions for UN3363 imposed quantity limits requiring multiple approvals from competent authorities as specified in Special Provision 136 in the HMR (SP 301 in the UN Model Regulations). Following more recent amendments to the UN Model Regulations, these transformers were eligible for transport under UN 3538. The provisions that allow these transformers to be transported unpackaged do not explicitly require the transformer to be gas-tight but instead require the valves to be closed during transport. To obviate the need for an approval each time such transformers are transported, a new special provision was added to the 22nd revised edition of UN Model Regulations because these transformers only emit small quantities of nitrogen or synthetic air, which are not flammable, toxic, corrosive, or oxidizing. PHMSA is making several safety controls in shipments of this type that are largely consistent with the provisions adopted in the UN Model Regulations and the IMDG Code. These controls include requiring the following: cylinders must be connected to the article through pressure regulators and have fixed piping to keep the pressure below 35 kPa (0.35) bar; cylinders must be secured to prevent shifting; cylinders and other components must be protected from damage and impacts during transport; the shipping paper must include a reference to shipping under this special provision; and if placed inside a cargo transport unit (CTU), the CTU must be well ventilated. PHMSA notes that these international regulations require marking the CTU with the asphyxiation warning mark for CTUs. The HMR has not adopted this mark and is not doing so at this time. PHMSA is not revising this mark because it views the additional controls—specifically, the indication on the shipping paper, as well as other operational controls noted in the special provision—as providing sufficient warning to those in the transport chain of the dangers present and mitigation of potential hazards. PHMSA expects that the addition of this special provision will facilitate the transport of this specialized machinery without imposing excessive manufacturing requirements to ensure gas tightness to prevent the release of relatively innocuous gases during transport. Special Provision 398 PHMSA is adding Special Provision 398, pertaining to the classification of hazardous materials under UN1012, Butylene. This new special provision clarifies that butylene mixtures and certain butylene isomers may be assigned to UN1012, while specifically excluding UN1055, Isobutylene, from this UN classification. Butylene, also known as butene, includes four different isomers, corresponding to one general chemical formula, C4H8. One of these isomers is isobutylene, which, while similar to the other three isomers, has been assigned a separate UN number, UN1055, which has its own set of packaging provisions. To avoid “UN1055, Isobutylene” being classified and transported under UN1012, this amendment facilitates the consistent and proper classification of this group of hazardous materials. This clarification for UN1012, Butylene, was added in the 22nd revised edition of the UN Model Regulations for consistency with European regulations, which made similar changes to avoid “UN1055, Isobutylene” being classified and transported under UN1012. PHMSA is adding this clarifying special provision with the expectation that it will facilitate consistent and proper classification of this group of hazardous materials. Special Provision 421 Special Provision 421 is currently assigned to the four polymerizing substance entries in the HMT. 21 Currently, this special provision notes that these entries will no longer be effective on January 2, 2023, unless extended or terminated prior to this date. As discussed in “Section I. Executive Summary” section of this rulemaking, PHMSA had placed sunset dates on the HMR provisions concerning transport provisions for polymerizing substances to allow time for the completion of research on various topics concerning their transport, and to gather and review empirical evidence concerning the appropriate transport provisions for polymerizing substances. As we have completed this review, we are deleting Special Provision 421 and maintaining the existing polymerizing substance HMT entries. DGAC provided comments in support of this revision. 21 UN3531, UN3532, UN3533, and UN3534. Special Provision A54 Special Provision A54 specifies that, irrespective of the quantity limits in column (9B) of the § 172.101 table, a lithium battery, including a lithium battery packed with, or contained in, equipment that otherwise meets the applicable requirements of § 173.185, may have a mass exceeding 35 kg, if approved by the Associate Administrator prior to shipment. PHMSA is amending this special provision to require that, when this special provision is used, the special provision number must be indicated on the shipping paper. PHMSA expects that this amendment will enhance safety by improving the communication of potential hazards, as without such indication, the need for shipment acceptance staff to check and ensure a copy of the approval accompanying the shipment can potentially be missed. Special Provisions A224 and A225 The 2023-2024 ICAO Technical Instructions added two new special provisions permitting the transport of articles containing hazardous materials aboard passenger and cargo-only aircraft. Currently these articles are forbidden from transport on passenger and cargo-only aircraft, as specified in column (9) of the HMT. However, the ICAO DGP developed these packaging provisions, which include provisions that ensure appropriate gas containment during transport. The aim of these special provisions was to facilitate the transport of large articles containing environmentally hazardous substances (such as aircraft landing gear struts filled with hydraulic fluid) and large articles containing a non-flammable, non-toxic gas (such as new types of magnetic resonance imaging (MRI) scanners, which often contain compressed helium as well as lithium cells or batteries). These amendments were adopted in the 2022-2023 ICAO Technical Instructions, and PHMSA is mirroring these provisions by adding two new air-specific special provisions, A224 and A225, and assigning them to HMT entries “UN3548, Articles containing miscellaneous dangerous goods, n.o.s.” and “UN 3538, Articles containing non-flammable, non-toxic gas, n.o.s.,” respectively. These special provisions allow for the transport of large articles containing a non-flammable, non-toxic gas or environmentally hazardous substances on both passenger aircraft and cargo aircraft only under certain conditions. Specifically, under Special Provision A224, “UN3548, Articles containing miscellaneous dangerous goods, n.o.s.” are permitted on passenger and cargo-only aircraft, provided that the only dangerous goods in the article are environmentally hazardous substances, except for lithium cells or batteries that comply with § 173.185(c) ( e.g., the article may contain an environmentally hazardous substance and lithium cell or battery that complies with § 173.185(c)). Similarly, under Special Provision A225, “UN3538, Articles containing non-flammable, non-toxic gas, n.o.s.” are permitted aboard passenger and cargo-only aircraft, provided that the article contains only a Division 2.2 gas that does not have a subsidiary hazard excluding refrigerated liquefied gases and other gases forbidden for transport on passenger aircraft, except for lithium cells or batteries that comply with § 173.185(c) ( e.g., the article may contain a non-refrigerated liquefied gas or otherwise forbidden Division 2.2 gas without a subsidiary hazard and a lithium cell or battery that complies with § 173.185(c)). In addition to containing only the permitted hazardous materials, the special provision also requires that shippers comply with additional packaging requirements specified in § 173.232, and that the special provision be indicated on shipping documentation. The ICAO DGP agreed that these provisions were appropriate given that environmentally hazardous substances pose a very low hazard in air, and that non-flammable, non-toxic gases without subsidiary hazard are already allowed on both passenger and cargo-only aircraft as well as certain other articles containing similar gases. PHMSA agrees and expects that, in addition to aligning the HMR with recent changes added to the 2023-2024 ICAO Technical Instructions, the addition of these provisions will facilitate the transport of these materials by air while maintaining the current level of safety for air transport of certain hazardous materials. MDTC provided a comment in support of these revisions. IP Codes IP Codes are special provisions that are assigned to specific commodities and applicable when that commodity is transported in IBCs. Table 2 in § 172.102 specifies the requirements corresponding to the IP Code indicated in column (7) of the HMT. In this final rule, PHMSA is amending the text of IP15 and adding a new IP Code, IP22. IP15 PHMSA is amending the text of IP15 to clarify language pertaining to the authorized period of use of composite IBCs. Currently, IP15 states that for IBCs containing UN2031 with more than 55% nitric acid, rigid plastic IBCs and composite IBCs that have a rigid plastic inner receptacle are authorized for two years from the date of IBC manufacture. A change to a corresponding special provision was adopted in the 22nd revised edition of the UN Model Regulations to make clear that the authorized two-year period of use specifically refers to the duration of use of the inner receptacle of composite IBCs and not to the outer framework. The intent of this requirement is to limit the inner receptacle for composite IBCs to the two-year period of use when used for this specific corrosive material, rather than requiring that the outer framework be inspected as often. The entire composite IBC remains subject to the five-year inspection interval, prescribed in § 180.352. This change in the UN Model Regulations was in response to mistranslations of the UN Model Regulations, which led to inconsistent maintenance of composite IBCs. While PHMSA is not aware of any issues surrounding the language in IP15, PHMSA expects that making this editorial change will ensure international users are not confused by the text of the HMR, and this clarification will enhance safe transport of hazardous materials in such IBCs. IP22 As discussed earlier, PHMSA is adding a new IP code, IP22, for the new entry, “UN 3550, Cobalt dihydroxide powder, containing not less than 10% respirable particles. ” This special provision authorizes the transport of Cobalt dihydroxide powder, a Division 6.1 solid, in flexible IBCs that are equipped with siftproof liners that prevent any egress of dust during transport. This hazardous material was recently classified as a solid with a toxic-by-inhalation hazard. Prior to this Division 6.1 classification, cobalt dihydroxide had been transported as “UN3077, Environmentally hazardous substance, solid, n.o.s., Class 9” in unlined flexible IBCs. However, this reclassification posed a problem for shippers because flexible IBCs are not authorized for Division 6.1 toxic solids. In response to the recent EU GHS changes, many shippers stopped using unlined flexible IBCs and began using lined 13H3 or 13H4 flexible IBCs to prevent the release of dust. 22 Additionally, the industry also developed a new design type flexible IBC with an improved liner to prevent egress of dust. This new design type, 13H3 flexible IBC, has been tested and approved to PG I by international competent authorities. Consequently, to address the packaging problem shippers faced as a result of new classification criteria, the UNSCOE created a special provision that allows this material to be transported in lined siftproof packagings. This decision was based on the 40-year record of safe transport in this material in PG III packagings, as well as the additional level of sift-proofness provided by the new design track record of the new siftproof packagings. PHMSA agrees with the UNSCOE's determination that siftproof flexible IBCs are appropriate packagings for this material and expects that this special provision will avoid unnecessary disruptions in the transport of this essential raw material while still ensuring safe transport of this material. The lack of a UN entry for this specific combination of physical and hazardous attributes—solid and toxic-by-inhalation—led to the development of this new UN entry by the UNSCOE. More specifically, UN3550 was created for cobalt dihydroxide to resolve the packaging and transport problem faced by shippers because of the new Division 6.1 classification. Consequently, based on the record of safe transport by multi-modal means in flexible IBCs, with no recorded accidents, incidents, or health issues as UN3077, the UNSCOE's resolution of this packaging conflict was to develop a new UN number, assigning appropriate packing provisions and creating a special packaging condition which permits the use of flexible IBCs. 22 https://unece.org/DAM/trans/doc/2019/dgac10c3/UN-SCETDG-56-INF19e.pdf. C. Part 173 Section 173.4b Section 173.4b specifies the hazard criteria and packaging requirements to qualify for the de minimis exception— i.e., exceptions from certain HMR requirements for very minor amounts of hazardous material. For non-infectious biological specimens that contain minor amounts of preservatives that are a hazardous material, PHMSA is adding a reference to formaldehyde solution in paragraphs (b)(1)(i) and (b)(1)(ii) to clarify that the conditions for packing of the specimens applies to formaldehyde solution too. Currently, paragraph (b) excepts non-infectious biological specimens, such as those of mammals, birds, amphibians, reptiles, fish, insects, and other invertebrates, containing small quantities of chemical preservatives like ethanol or formaldehyde solution from the HMR, provided certain conditions are met. For example, paragraph (b)(1) provides instruction for when alcohol or an alcohol solution is used, such as when a specimen is placed in a plastic bag, that any free liquid in the bag must not exceed 30 mL. The ICAO Technical Instructions include a similar instruction, yet during a review of the ICAO Technical Instructions, the ICAO DGP noted that the exception does not address when formaldehyde solutions are used as preservatives for specimens; thus, there was no specified limit on the amount of free liquid formaldehyde solution that may be in a packaging. Consequently, the 2023-2024 ICAO Technical Instructions include an amendment to the de minimis provisions to specify limits for formaldehyde solutions. PHMSA agrees with this clarifying amendment and expects that adopting a similar change will enhance safety by removing uncertainty about whether the quantity limits also apply to formaldehyde solutions. PHMSA received a comment from the MDTC in support of this revision. Section 173.21 Section 173.21 describes situations in which offering for transport or transportation of certain materials or packages is forbidden. Examples of such forbidden shipments include materials designated as “Forbidden” in Column (3) of the HMT; electrical devices that are likely to generate sparks and/or a dangerous amount of heat; and materials that are likely to decompose or polymerize and generate dangerous quantities of heat or gas during decomposition or polymerization. This last group of materials is addressed in paragraph (f) of this section, which outlines the conditions under which materials that are likely to decompose or polymerize unless stabilized or inhibited in some manner ( e.g., with temperature controls or chemical stabilization) are authorized for transport. PHMSA is lowering the temperature threshold for certain materials transported in portable tanks that require temperature control. Specifically, this amendment lowers this threshold temperature for a material that is likely to decompose with a self-accelerated decomposition temperature (SADT), or polymerize with a self-accelerated polymerization temperature (SAPT) from 50 °C (122 °F) to 45 °C (113 °F) when transported in portable tanks. This means that portable tanks containing materials likely to decompose or polymerize at temperatures greater than 45 °C are not required to be stabilized or inhibited by temperature control. In an earlier rulemaking, HM-215N, PHMSA gave notice that at that time, it would not adopt reductions in temperature thresholds for shipments in portable tanks, and maintained a 50 °C (122 °F) threshold for requiring temperature control to allow for additional time to conduct research on the impacts of such a change and to allow additional time to fully consider the issue. However, PHMSA-sponsored research, which was completed in February 2021 by APT Research, Inc. (APT), 23 has informed our revisions in this final rule. That research aimed to gather more information concerning temperature control of polymerizing substances in portable tanks, and testing requirements for these substances intended to be transported in portable tanks or intermediate bulk containers (IBCs), as these two areas of safety controls in the HMR differed from those adopted in the international consensus standards and regulations. The report following research conducted by APT noted that “relaxing the temperature control requirements as proposed by HM-215N is assessed to be an appropriate approach since it will harmonize U.S. regulations with international requirements and no additional hazards were identified for any common polymers during transport. Polymers in industry with SAPTs approaching 45 °C or 50 °C were found to be uncommon.” PHMSA agrees with this assessment and is lowering this temperature threshold at which temperature control is required for portable tanks containing a material that is likely to decompose with a SADT, or polymerize with a SAPT from 50 °C (122 °F) or less to 45 °C (113 °F) or less. Although the APT research focused on polymerizing materials, PHMSA believes decomposing materials behave similarly and has opted to apply the change to both material types. PHMSA believes this amendment will help facilitate international transportation of these goods while maintaining the high standard of safety in the HMR for transportation of decomposing and polymerizing materials. To that end, PHMSA also is amending the table in paragraph (f)(1) to accommodate the specific temperature controls applicable to decomposing and polymerizing substances transported in portable tanks. This amendment aligns the HMR with temperature thresholds for substances with SADTs and SAPTs transported in portable tanks with those found in the UN Model Regulations and the IMDG Code. Further, based on this change specific to use of portable tanks, PHMSA is revising the table in paragraph (f)(1) to include packaging type as a factor in determining the criteria for control temperatures and emergency temperatures. Lastly, PHMSA is amending paragraph (f) to provide a reference to the lower threshold of 45 °C (113 °F) for portable tanks and include a reference to language concerning organic peroxides that require temperature control. Paragraph (f)(2) is revised to (f)(2)(i)-(iii) to indicate general temperature control requirements for organic peroxides by type. These requirements are consistent with the UN Model Regulations and ensure that appropriate temperature control provisions are applied to organic peroxides not specifically listed in the Organic Peroxide Table in § 173.225. DGAC and Dow Chemical provided comments in support of this revision. 23 Report can be accessed in Docket No. PHMSA-2021-0092 on www.regulations.gov. Additionally, to fully adopt these changes, PHMSA is removing the phaseout language currently found in (f)(1)(i), which states that the provisions concerning polymerizing substances in paragraph (f) will be effective until January 2, 2023. Finally, based on results of the research, PHMSA is maintaining the current defining criteria for polymerizing substances in § 173.124, that a polymerizing substance must successfully pass the UN Test Series E at the “None” or “Low” level, or achieve equivalent criteria using an alternative test method with the approval of the Associate Administrator, prior to selection of an appropriate portable tank or IBC. Dow chemical and DGAC provided comments in support of this proposal. Section 173.27 Section 173.27 outlines general requirements for transportation by aircraft, including requirements and limitations for hazardous materials transported in limited quantities. Currently, the provisions for combination packagings in paragraph (f)(2) specify that materials or articles not authorized as a limited quantity for transportation by aircraft include all PG I materials; self-reactive flammable solids in Division 4.1; spontaneously combustible materials in Division 4.2; and liquids that are dangerous when wet in Division 4.3. The ICAO Technical Instructions included similar language for Division 4.1 materials by allowing non-self-reactive Division 4.1 materials assigned to PG II or PG III to be transported as limited quantities. However, the ICAO DGP identified a conflict with limited quantity provisions in the ICAO Technical Instructions and the limited quantity provisions in the UN Model Regulations pertaining to four Division 4.1 material, assigned PG II: “UN 2555, Nitrocellulose with water with not less than 25 percent water by mass;” “UN 2556, Nitrocellulose with alcohol with not less than 25 percent alcohol by mass, and with not more than 12.6 percent nitrogen, by dry mass;” “UN 2557, Nitrocellulose, with not more than 12.6 percent nitrogen, by dry mass mixture with or without plasticizer, with or without pigment;” and “UN 2907, Isosorbide dinitrate mixture with not less than 60 percent lactose, mannose, starch or calcium hydrogen phosphate.” Despite not being defined as self-reactive, the UN Model Regulations have never included these specific Division 4.1 flammable solid materials for transport as limited quantities. The ICAO Technical Instructions were amended for consistency with the UN Model Regulations to clearly indicate that the transport of these four PG II materials in Division 4.1 are not authorized for transportation by aircraft as limited quantities. PHMSA received a comment from Dangerous Goods Advisor noting that the inclusion of UN 2555, UN 2556, UN 2557, and UN 2907 in § 173.27(f)(2)(i)(D) seems unnecessary and could downplay the additional inapplicability to the other 30 desensitized explosives listed in the HMT. After reviewing the list of the other desensitized explosives, PHMSA determined that all 30 other desensitized explosives entries are PG I materials in the HMT. PG I materials are already excluded from the limited quantities section in § 173.27(f)(2)(i)(A). While PHMSA understands that listing the UN numbers in § 173.27(f)(2)(i)(D) is somewhat redundant with removing the reference to § 173.151 for the relevant UN number in the HMT, PHMSA asserts that listing the UN number in § 173.27 provides reinforcing information that these PG II desensitized explosives are not eligible to be shipped as limited quantities. PHMSA is adding language in § 173.27(f)(2)(i)(D) to explicitly include the UN identification numbers for these materials, indicating that these materials may not be transported as limited quantities by aircraft. PHMSA expects this change will add an additional level of safety by correcting this packaging provision, which has been inconsistent with those in place for materials that pose similar hazards. Section 173.124 Section 173.124 outlines defining criteria for Divisions 4.1 (Flammable solid), 4.2 (Spontaneously combustible), and 4.3 (Dangerous when wet material). In an earlier rulemaking, PHMSA placed phaseout dates on the HMR provisions concerning transport provisions for polymerizing substances to allow time for the completion of research on various topics concerning their transport, and to gather and review empirical evidence concerning the appropriate transport provisions for polymerizing substances. In line with other amendments in this final rule for the transport of polymerizing substances, PHMSA is removing paragraph (a)(4)(iv), which has the phaseout date of January 2, 2023. The result of this amendment will be to remove the phaseout date and keep the existing requirements—as outlined in paragraph (a)(4)—effective beyond the January 2, 2023, date. Section 173.137 Section 173.137 prescribes the requirements for assigning a packing group to Class 8 (corrosive) materials. PHMSA is authorizing the use of an additional test method, Test No. 439, “ In Vitro Skin Irritation: Reconstructed Human Epidermis Test Method,” as well as editorial changes to this section to provide clarity regarding the use of the authorized OECD Guidelines for the Testing of Chemicals. Currently, the HMR requires offerors to classify Class 8 materials and assign a packing group based on tests performed in accordance with various OECD Guidelines for the Testing of Chemicals (TG), including a skin corrosion test ( in vivo ) and various in vitro testing guidelines that do not involve animal testing. Data obtained from the currently authorized test guidelines is the only data acceptable for classification and assignment of a packing group. Specifically for PG I, II, or III determinations, the HMR authorizes the use of OECD Guidelines for the Testing of Chemicals, Test No. 435, “ In Vitro Membrane Barrier Test Method for Skin Corrosion,” and Test No. 404, “Acute Dermal Irritation/Corrosion” (an in vivo test method). The HMR also authorizes the use of OECD Test No. 430, “ In Vitro Skin Corrosion: Transcutaneous Electrical Resistance Test (TER),” and Test No. 431, “ In Vitro Skin Corrosion: Reconstructed Human Epidermis (RHE) Test Method;” however, the scope of what these tests can determine is limited. For that reason, Test No. 430 is authorized for use only to determine whether a material is corrosive or not; materials that are determined to be corrosive using this test require additional testing using Test Nos. 435 or 404 or assignment to the most conservative packing group, PG I. Similarly, Test No. 431 may also be used to determine whether or not a material is corrosive; however; while this can identify when a corrosive must be assigned PG I, it cannot differentiate between PG II and III materials. Consistent with the UN Model Regulations, when this method does not clearly distinguish between PG II or PG III, the HMR allows the material to be transported as PGII without further in vivo testing. Consistent with changes made to the 22nd revised edition of the UN Model Regulations, PHMSA is authorizing an additional TG, OECD Test No. 439, “In Vitro Skin Irritation: Reconstructed Human Epidermis Test Method,” as an authorized test, which may be used to exclude a material from classification as a corrosive material. Test No. 439 was adopted in the UN Model Regulations because it provides another means of testing, without the use of live animals, that can easily identify materials as non-corrosive. However, while Test No. 439 may be used for the hazard identification of irritant chemicals, it is limited in that it simply allows materials to be identified as either corrosive or non-corrosive to skin. Because this test method only identifies the material as corrosive or not, the UN Model Regulations added an additional provision requiring that materials, which are tested using Test No. 439 and indicate corrosivity, must be assigned to the most conservative PG ( i.e., PG I), unless additional tests are performed to provide more specific data that can be used to assign a less conservative PG. The addition of Test No. 439 as an authorized test method will provide greater flexibility for shippers to classify, package, and transport corrosive material, while maintaining the HMR safety standard for transport of corrosive materials. With regard to the editorial changes in this section, PHMSA is amending the text of this section to provide clarity regarding the authorized OECD Testing of Chemicals. Additionally, PHMSA is amending the last paragraph of the introductory text, which currently states that assignment to packing groups I through III must be made based on data obtained from tests conducted in accordance with OECD Guideline Number 404 or Number 435 in order to remove the reference to Test No. 435. Since its update in 2015, the criteria for packing group assignments in Test No. 435 are no longer the same as the criteria for Test Guideline 404. PHMSA expects that these amendments will enhance safety by providing clarity regarding the proper testing and assignment of packing groups, and promote efficiency by streamlining the assignment of packing groups. Section 173.151 Section 173.151 contains exceptions for Class 4 hazardous materials. In the NPRM, PHMSA proposed to add “151” to column 8a of the HMT for “UN 3148, Water-reactive liquid, n.o.s.” However, § 173.151(d) currently only refers to Division 4.3 “solid” dangerous when wet materials, which is contradictory to the liquid state of UN 3148. In this final rule, PHMSA is making an editorial revision to § 173.151(d), which currently contains only the words “solids” to describe Division 4.3 (self-reactive) materials. PHMSA is revising this paragraph to include “solids” and “liquids” to accurately reflect that Division 4.3 materials could be either in a solid or liquid state. Section 173.167 Section 173.167 contains the packaging instructions and exceptions for “ID8000, Consumer commodities.” The ID8000 entry was added to the HMR in final rule HM-215K, 24 with the intent of aligning the HMR with the ICAO Technical Instructions for the air transportation of limited quantities of a consumer commodity material. Based on inquiries from shippers and carriers, PHMSA understands that confusion exists regarding the requirements for hazard communication and the ability to withstand pressure differential for packages of a “ID8000, Consumer commodity” material when moved by modes other than air. In 2012 and 2017, PHMSA issued letters of interpretation regarding the applicability and hazard communication requirements for ID8000 shipments. 25 Both of these letters of interpretation recognized that ID8000 shipments are inherently “limited quantity” and provided the opinion that for transportation by highway, rail, and vessel, ID8000 packages could be marked with the standard marking found in § 172.315(a)(1) ( i.e., limited quantity mark without the “Y”). In 2022, PHMSA received a petition for rulemaking, designated P-1762, 26 from the Council on the Safe Transportation of Hazardous Articles (COSTHA) relating to ID8000. In its petition, COSTHA requested that PHMSA revise § 173.167 to make it clear that packages prepared under this section may be offered for transportation and transported by all modes. 24 76 FR 3307 (Jan. 19, 2011). 25 Ref. No. 11-0090 (May 3. 2012); Ref. No. 16-0075 (Jan. 9, 2016). 26 https://www.regulations.gov/document/PHMSA-2022-0007-0001 . In consideration of P-1762 and consistent with these letters of interpretation regarding the requirements for ID8000 shipments, PHMSA is revising the requirements in § 173.167 for “ID8000, Consumer commodity” materials. The intent of this revision is to clearly address requirements for all modes of transportation, while continuing to recognize that the history and intent of the “ID8000, Consumer commodity” entry is closely tied to the ICAO Technical Instructions and air transportation. First, PHMSA is making editorial revisions to the title of the section and introductory language in paragraph (a). PHMSA is renaming the section “ID8000 Consumer commodity” to distinguish this section from the historical “ORM-D, Consumer commodity” HMT entry and an exception that ceased to be effective on December 31, 2020. PHMSA purposely phased out the “ORM-D, Consumer commodity” classification and description to remove the dual system of shipping certain limited quantities domestically and internationally, as it was a source of confusion. PHMSA acknowledges that there may be circumstances where persons need to transport ID8000 packages between locations— e.g., to a warehouse for consolidation, etc.—without needing or using air transportation. Therefore, PHMSA recognizes the need to not only accommodate that portion of transport but also provide assurances that any ID8000 package is appropriately prepared for air transportation, regardless of whether air transportation is actually used. PHMSA is clarifying that ID8000 material is inherently a limited quantity by adding the phrase “limited quantity” to the § 173.167(a) introductory text. Finally, PHMSA is removing the phrase “when offered for transportation by aircraft” from the introductory language in paragraph (a) and restructuring the existing first sentence of the section into two separate statements. This revision is intended to clarify that the materials and quantities listed in this section may be transported by all modes, and to clarify that only the materials listed in paragraph (a) are eligible to be transported as “ID8000, Consumer commodity.” More significantly, PHMSA is revising the structure of the section by moving the two requirements in the currently effective language of paragraph (b)—applicable only to air transportation—to new subparagraphs (6) and (7) of paragraph (a). This will require all ID8000 packages to be subject to the limited quantity marking requirements of § 172.315(b) ( i.e., require use of the “Y” limited quantity marking) and other markings required by part 172 subpart D, including marking of the ID number and PSN. This revision will also require compliance with the § 173.27(c) pressure differential requirement for transportation by all modes. The intent of this revision is two-fold: 1. Provide clarity to shippers on the hazard communication and pressure differential requirements for all shipments of “ID8000, Consumer commodity” packages. 2. Ensure that “ID8000, Consumer commodity” packages—wherever they are in the transportation stream—meet the requirements for air transportation. However, while required in paragraph (a), PHMSA is adding a new paragraph (b) to provide exceptions to ID8000 packages for shipping papers and labels when transported by highway and rail. These exceptions were previously in the introductory language to paragraph (a). PHMSA is also providing a new labeling exception for ID8000 packages transported by vessel, which aligns with the labeling exception provided to limited quantity packages transported by vessel. PHMSA reminds shippers that packages shipped under this section are still subject to the marking requirement ( i.e., require the limited quantity marking). PHMSA received comments from COSTHA and the MDTC in support of this revision. In addition to the revisions to § 173.167 requested in P-1762 discussed above, COSTHA submitted petition P-1761 27 with additional requests. Specifically, in P-1761, COSTHA requested that PHMSA add a reference to § 173.167 in the sections that outline limited quantity exceptions for Class 3, PG II and III (§ 173.150), UN3175 (§ 173.151), Division 6.1 PG III (§ 173.153), UN3077, UN3082, UN3334 and UN3335 (§ 173.155), and Class 2 non-toxic aerosols (§ 173.306). PHMSA did not propose these revisions in the NPRM. PHMSA received comments from COSTHA reiterating their petition that PHMSA modify the limited quantity sections listed above to reference § 173.167. PHMSA asserts that ID8000 is a specialized exception, designed only for a small subset of materials, and the materials are subject to stringent packaging requirements. PHMSA reiterates that adding a reference to § 173.167 to the limited quantity exception sections listed above will create confusion for shippers by referencing an exception that most may not be able to adequately meet. All the materials and quantities authorized in § 173.167 may be transported as limited quantities by all modes. For the vast majority of hazardous material shippers who offer these materials in these small quantities, utilizing the limited quantity exception specific to the commodity ( e.g., not utilizing § 173.167) is the most appropriate and simplest option. PHMSA reiterates that if shippers, carriers, or other entities involved in the transportation of hazardous materials are uncertain what marking requirements apply to a limited quantity shipment, it could mean that their training programs are inadequate and may need to be reviewed. 27 https://www.regulations.gov/document/PHMSA-2022-0006-0001 . Section 173.185 Section 173.185 prescribes requirements for the transportation of lithium cells and batteries. PHMSA is making numerous changes to this section as follows. Paragraph (a) classification revisions: Paragraph (a) provides general classification provisions, which include requirements for manufacturers and subsequent distributers of lithium cells and batteries to provide others in the supply chain a test summary of the battery, which contains information regarding the cells and batteries. PHMSA received a comment from PRBA and MDTC noting that a small, but important amendment to the UN38.3 Test Summary is included in the UN Manual of Tests and Criteria, Seventh Revised Edition, Amendment 1, which was adopted in December 2020. PRBA notes that this amendment was based on a proposal filed with the UN Sub-Committee of Experts on the Transport of Dangerous Goods by PRBA and their counterpart in Europe. The amendment removes the signature requirement in the test summary document, which is currently found in § 173.185(a)(3)(x). This provision currently states: “Signature with name and title of signatory as an indication of the validity of information provided.” PRBA notes that PHMSA proposed to incorporate by reference in § 171.7 the UN Manual of Tests and Criteria, Seventh Revised Edition, Amendment 1, but did not include this proposed change to the Test Summary document in § 173.185 of the HMR. In its comments, PRBA and MDTC requested that PHMSA amend § 173.185(a)(3)(x) to make it clear that a signature is not required on the test summary document. PHMSA concurs with the MDTC and PRBA comments that the revision was inadvertently left out of the NPRM, and as such PHMSA is revising § 173.185(a)(3)(x) to require the test summary indicate the name and title of a responsible person. A signature would no longer be required. Additionally, PHMSA is amending paragraph (a)(3) to except button cell batteries installed in equipment (including circuit boards) from these test summary requirements. This amendment will give shippers of traditionally less regulated products, such as wrist watches and key fobs, an exception from the need to maintain a test summary document. PHMSA received a comment from ALPA opposing the amendment to except button cells installed in equipment from the test summary document requirement. ALPA stated in its comments that experimental data was presented at the ICAO DGP working group showing that button cells installed in electronic devices initiated fires when short circuiting. PHMSA appreciates ALPA's perspective on this issue; however, button cell batteries have inherent limitations on their energy capacity and content. This self-limiting design helps mitigate potential risks if the batteries are misused or damaged. PHMSA asserts that the HMR appropriately addresses the hazards associated with these types of batteries. PHMSA also notes that this revision in no way relieves button cells from the design testing requirements; it merely excepts the button cells from the requirement to create and distribute a test summary document. Additionally, COSTHA, DGAC, MDTC, and PRBA all provided comments in support of this proposal as written. Therefore, PHMSA finds that this amendment maintains the safety standard for the transportation of lithium batteries consistent with the exceptions for smaller cells or batteries found in §§ 173.185(c)(2) and (c)(3) as currently button cell batteries are excepted from the packing requirement to use a strong, rigid outer package, provided the battery is sufficiently protected by the equipment in which it is contained, and the lithium battery marking requirements, respectively. Further, PHMSA is making an editorial amendment by deleting the onset date in paragraph (a)(3) as January 1, 2022, has passed, and the paragraph now applies generally. Additionally, PHMSA is adding a new paragraph (a)(5) to require marking the outer casing of lithium ion batteries with the Watt-hour (Wh) rating. This is consistent with the provisions for smaller lithium ion batteries in § 173.185(c)(1)(i), which require that “each lithium ion battery subject to this provision must be marked with the Watt-hour rating on the outside case.” PHMSA added this provision to the HMR in HM-224F. 28 While the requirement was added to the HMR for smaller lithium ion batteries (as a condition for use of an exception), no similar provision was added for other lithium ion batteries ( i.e., those not offered in accordance with, or eligible for, the paragraph (c) exceptions). However, upon review, PHMSA noted that the international regulations generally require the marking of the Wh rating on the outside of the casing. Specifically, this is required in accordance with Special Provision 348 of the UN Model Regulations; Special Provision 188 of the IMDG Code; Section IA.2 of Packing Instruction 965 (for UN3480); and Section I.2 of Packing Instruction 966 (for UN3481) and 967 (for UN3481) of the ICAO Technical Instructions. PHMSA expects that this amendment will improve safety, as the marking of the Wh rating on the outer casing of a lithium ion battery assists a shipper in better understanding the energy capacity of the battery, and thus, ensures compliance with hazard communication and packing provisions associated with Wh limitations. 28 79 FR 46011 (Aug. 6, 2014). MDTC and PRBA provided comments noting that the UN Model Regulations, ICAO Technical Instructions, and IMDG Code are clear that the Wh rating is only required on lithium-ion batteries and not lithium-ion cells, which PHMSA originally proposed. MDTC and PRBA conclude that it would be impractical to require the Wh marking on very small cells like those used in medical devices and small consumer devices ( e.g., smart glasses and ear buds). PRBA and MDTC request confirmation from PHMSA that it was not the Agency's intent to require the marking on lithium ion cells. PHMSA concurs with the commenters and is not adding lithium ion cells to the requirement in paragraph (a)(5). PHMSA is clarifying in the final rule that the requirement to mark the Wh rating only applies to lithium ion batteries and not lithium ion cells. PHMSA also received a comment from COSTHA in support of this revision. Paragraph (b) packaging revisions: Section 173.185(b)(3) contains packaging provisions for lithium cells or batteries packed with equipment. Paragraph (b)(3)(iii) provides two authorized packaging configurations for lithium cells and batteries packed with equipment. Specifically, it permits lithium cells and batteries, when packed with equipment, to be placed in: (1) inner packagings that completely enclose the cell or battery, then placed in an outer packaging; or (2) inner packagings that completely enclose the cell or battery, then placed with equipment in a package that meets the PG II performance requirements as specified in paragraph § 173.185(b)(3)(ii). The intent of the first option provided in paragraph (b)(3)(iii)(A) is to permit packing only the cells or batteries in a UN specification packaging, and then place this packaging with the equipment, for which the batteries are intended, in a non-UN specification outer packaging. The intent for the second option provided in paragraph (b)(3)(iii)(B) is to pack both the cells or batteries and the equipment in a UN specification outer packaging. In a working paper submitted at the ICAO 2020 Working Group Meeting, it was noted that the actual text for the two options was not clear. Specifically, paragraph (b)(3)(iii)(A) does not clearly state that the specification packaging containing the cells or batteries is then packed with the equipment into a non-specification outer packaging. Consistent with the clarifying revision in the ICAO Technical Instructions, and to align more closely with the text in packing instruction P903 of the UN Model Regulations, PHMSA is revising paragraph (b)(3)(iii)(A) by clearly indicating that the cells or batteries must be placed in a specification package of a type that meets PG II performance requirements and then placed together with the equipment in a strong, rigid outer non-specification packaging. For additional clarity, PHMSA also is revising paragraph (b)(3)(iii)(B) by replacing the text “package” with the phrase “packaging of a type” when referring to the specification package meeting the PG II performance requirements. PHMSA received a comment from COSTHA in support of this revision. PHMSA is adding a new paragraph (b)(3)(iii)(C) to include a limitation for the number of cells or batteries in the package, when transported by air. This is consistent with the provisions for smaller cells or batteries found in § 173.185(c)(4)(i)—as revised in this final rule—which currently requires that for smaller cells or batteries contained in or packed with equipment and shipped by aircraft, the number allowed in each package is limited to the number required to power the piece of equipment, plus two spare sets. The original provision limiting the number in each packaging was added in HM-224F but did not apply to fully regulated shipments. However, PHMSA notes that the limitation on the number of cells or batteries allowed in a package should have also applied to fully regulated shipments of lithium batteries packed with equipment, consistent with Section I.2 of Packing Instruction 966 (for UN3481) and Packing Instruction 969 (for UN3091) of the ICAO Technical Instructions. PHMSA did not intend to limit the scope of this requirement to just smaller cells or batteries, as a condition for the exception from full regulation under paragraph (c), as this packaging requirement is intended to limit the hazard of lithium battery shipments in air transportation. Limiting the number of cells and batteries allowed to be packaged with equipment reduces hazard risks and increases safety. Section 173.185(b)(4) contains packaging provisions for lithium cells or batteries contained in equipment. Consistent with the ICAO Technical Instructions, PHMSA is adding a new paragraph (b)(4)(iv) clarifying that for transportation by aircraft, when multiple pieces of equipment are packed in the same outer packaging, each piece of equipment must be packed to prevent contact with other equipment. This change is necessary because existing provisions in paragraph (b) could be interpreted to only apply to an outer packaging containing a single piece of equipment; however, an outer packaging may contain multiple pieces of equipment. This provision will more clearly communicate that for multiple pieces of equipment containing lithium cells or batteries in the same outer packaging, the equipment must be packed to prevent damage due to contact between the pieces of equipment. PHMSA received comments from ALPA, PRBA, COSTHA, and MDBTC in support of this revision. Paragraph (c) exceptions for smaller cells or batteries revisions: Section 173.185(c) provides exceptions for smaller cells or batteries. Paragraph (c)(3) specifies requirements for the lithium battery mark. In the NPRM, PHMSA proposed to remove the telephone number requirement from the lithium battery mark with a phaseout date of December 31, 2026. The intended use of the telephone number and its effectiveness was discussed by the UNSCOE. Examples pointing to its ineffectiveness include differences in time zones and languages between the origin and destination of a shipment or intermediate transport point, and a lack of clarity on the expected capability of the person responding to a telephone call. The requirement to include a “telephone number for additional information” was originally introduced in the 15th revised edition of the UN Model Regulations. It was envisioned that the telephone number would be for the consignor or other responsible individual who could provide further information ( e.g., appropriate corrective actions should something be wrong with the package) beyond the minimal information required to be indicated on the package. At that time, there was minimal hazard communication and less awareness than is currently provided for in the UN Model Regulations. The consignor information can now be readily obtained through other means, such as a bill of lading, shipping labels, or other paperwork, thereby rendering the telephone number requirement as a piece of information on the lithium battery mark effectively redundant. The resulting consensus based on both the discussion and experience with transport of small lithium batteries was that the telephone number adds little value, and removing the telephone number requirement from the mark would not reduce the effectiveness of the mark and therefore, not impact safety of transportation. PHMSA received an anonymous comment stating that the transition period authorizing continued use of the current lithium battery mark should extend beyond December 31, 2026. The commenter stated this transition period was decided on the premise that the international harmonization final rule would be published before January 1, 2023. As such, the anonymous commenter suggested that the phaseout date for the lithium battery mark in § 173.185(c)(3) should be extended based on the publication date of the final rule. PHMSA disagrees with the commenter that an extension is needed for the phaseout of the revised lithium battery mark in § 173.185(c)(3). The phaseout date of December 31, 2026, for the old lithium battery mark should still provide adequate time for entities to comply with the revised marking and does not justify PHMSA not being harmonized with the international regulations on this subject. Additionally, PHMSA received a comment from COSTHA in support of keeping the transition time the same as the international regulatory texts to facilitate global harmonization for this transition. Therefore, PHMSA is revising the lithium battery mark by removing the double asterisk from the example figure and the corresponding requirement in paragraph (c)(3)(i)(C) to replace the double asterisk with the telephone number. PHMSA is setting a transition period authorizing the use of the current lithium battery mark until December 31, 2026. ALPA, PRBA, and COSTHA provided comments in support of this revision. Paragraph (c)(4) contains provisions for exceptions for smaller lithium cells and batteries offered by air transportation. PHMSA is removing the exceptions applicable to small lithium cells and batteries when they are not packed with or contained in equipment. This change was also implemented on January 1, 2022, by the International Air Transport Association (IATA), and authorization for the exceptions for smaller lithium cells and batteries were removed from Packing Instructions 965 and 968 in the 2023-2024 Edition of the ICAO Technical Instructions. The exceptions in § 173.185(c)(4) were originally developed to facilitate the global transport of small lithium cells and batteries. However, these exceptions removed many of the regulatory safeguards that provide for the safe transport of lithium batteries, including requirements for air operators to perform an acceptance check; information to be provided to the pilot-in-command; and package hazard communication. Furthermore, the exceptions for small lithium cells and batteries limit the ability of air operators to conduct the necessary safety risk assessments. The reduced hazard communication also increased the risk of small lithium cells and battery packages restricted for transport on cargo-only aircraft from being inadvertently loaded on a passenger aircraft. The removal of these exceptions increases the visibility of these shipments to operators who must perform an acceptance check to ensure proper packaging and hazard communication and ensure the information regarding the number and location of packages containing lithium batteries will be provided to the pilot-in-command. The changes do not apply to the exceptions for small lithium cells and batteries packed with or contained in equipment. Specifically, PHMSA is removing the following provisions: • Paragraph (c)(4)(i) including Table 1, which specifies the number and net quantity of lithium batteries. • Paragraph (c)(4)(ii), which specifies the limitation of one package per overpack. • Paragraph (c)(4)(iii), which specifies the limitation of one package per consignment. • Paragraph (c)(4)(v), which specifies that offering packages and overpacks to an operator must be done separately from cargo not subject to the HMR. • Paragraph (c)(4)(viii), which limits packing cells and batteries with certain types of hazardous materials in the same package or overpack. As a consequence, the remaining provisions in paragraph (c)(4) applicable to lithium cells or batteries packed with, or contained in, equipment will be reorganized and renumbered. The paragraph (c)(4) introductory text is revised to read, “Air transportation for smaller lithium cell or batteries packed with, or contained in, equipment.” Further, consistent with the ICAO Technical Instructions, paragraph (c)(4)(ii), is revised to require that when placed into an overpack, packages must be secured within the overpack, and the intended function of each package must not be impaired by the overpack. The general provisions for overpacks in Part 5, 1.1 of the ICAO Technical Instructions require that packages must be secured within the overpack, and that the intended function of the package must not be impaired by the overpack. However, with the current construction of the provisions for small cells or batteries in Packing Instructions 966, 967, 969, and 970, the general Part 5 overpack provisions do not apply, which could lead to packages being unsecured or even damaged by being unrestrained within an overpack. These overpack provisions from Part 5 were added to the respective packing instructions to ensure protection against damage of the packages and their contents; therefore, PHMSA is harmonizing this change in § 173.185(c)(4)(ii). These amendments ( i.e., hazard communication clarifications and revisions to lithium battery requirements for consistency) maintain the level of safety currently present in the HMR's high safety standard. Safety benefits will also be derived from improved compliance related to consistency amongst domestic and international regulations. PHMSA received a comment from MDTC in support of this revision. Section 173.185(c)(5), which corresponds to Packaging Instructions 965 and 968 in Section IB of the ICAO Technical Instructions, provides an exception from specification packing requirements for smaller lithium cells and batteries, not exceeding the size prescribed in paragraph (c)(1) and subject to certain quantity limits. PHMSA is revising the paragraph (c)(5) introductory text to, “Air transportation for smaller lithium cell and batteries.” Combined with the revision to the (c)(4) introductory text, this will assist users of this section to understand that the requirements in this section apply to smaller lithium cells and batteries transported by air. PHMSA is also removing the references to paragraph (c)(4) limitations based on their removal, as described above. Additionally, PHMSA is moving the regulatory requirements of paragraph (c)(5) to a new paragraph (c)(5)(i), based on the addition of new paragraph (c)(5)(ii). As mentioned, PHMSA is adding a new paragraph (c)(5)(ii) to require packages to be capable of withstanding a three-meter stack test for a duration of 24 hours. Because lithium cells and batteries offered in accordance with paragraph (c)(5) are excepted from the specification package requirements, they are not presently subject to a stack test. However, the general requirements for limited quantity packages by air in § 173.27(f)(2)(vi), which are also excepted from specification packaging requirements, requires that each package be capable of withstanding a three-meter stack test for a duration of 24 hours. In considering the packaging standards between limited quantity packages and those for smaller lithium cells and batteries, it was agreed by the DGP that packages must be capable of withstanding a stack test, in parallel with the requirement for limited quantity packages. PHMSA agrees with introducing a stack test as a preventative safety measure against potential damage to lithium battery packages from stacking of packages and is including a stack test requirement in new paragraph (c)(5)(ii). PHMSA received comments in response to the NPRM from PRBA, COSTHA, and DGAC in support of this revision. Lastly, consistent with corresponding revisions to international standards, PHMSA is making editorial revisions in paragraphs (e)(6) and (e)(7), where references to “battery assemblies” are removed and replaced with the phrase “cells and batteries,” as used throughout the section. Paragraph (a)(1) requires each lithium cell or battery to be of the type proven to meet the criteria in part III, sub-section 38.3, of the UN Manual of Tests and Criteria. The 38.3.2.3 definition for “battery” states that: “. . . Units that are commonly referred to as “battery packs,” “modules” or “battery assemblies” having the primary function of providing a source of power to another piece of equipment are, for the purposes of the Model Regulations and this Manual, treated as batteries.” Use of “battery assemblies” may be a source of confusion, as the reader may understand it to have a separate meaning from “battery,” yet it is not specifically defined in the HMR. Further, based on the above requirements to comply with the UN Manual of Tests and Criteria and its associated meaning of “battery assemblies,” PHMSA considers that the use of the term “battery assemblies” is redundant with the term “battery” in the context of these transport requirements, and is revising the text to reduce confusion of the provisions in these paragraphs regarding applicability to the assembly or to the cells and batteries contained within an assembly. PHMSA expects that the changes to § 173.185 will provide clarity, thus enhancing the safety standard in the HMR for transportation of lithium batteries. PHMSA received comments in response to the NPRM from MDTC and COSTHA in support of this revision. Section 173.224 Section 173.224 establishes packaging, and control and emergency temperatures for self-reactive materials. The Self-Reactive Materials Table in paragraph (b) of this section specifies requirements for self-reactive materials authorized for transportation that do not require prior approval for transportation by the Associate Administrator for Hazardous Materials Safety. As a result of new self-reactive materials formulations becoming commercially available, the 22nd revised edition of the UN Model Regulations includes updates to the list of specified self-reactive materials authorized for transportation without prior approval. To maintain consistency with the UN Model Regulations, PHMSA is updating the Self-Reactive Materials Table by adding a new entry for “(7-Methoxy-5-methyl-benzothiophen-2-yl) boronic acid.” PHMSA also is correcting the name of one of the listed self-reactive substances on the self-reactive substances table. Currently, “2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethyl-phenylsulphonyl)benzene diazonium zinc chloride” is listed; however, this formulation name should be “2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethylphenylsulphonyl)benzenediazonium hydrogen sulphate.” While reviewing the self-reactive table in the UN Model Regulations and ICAO Technical Instructions, PHMSA discovered that “2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethyl-phenylsulphonyl)benzene diazonium zinc chloride” does not appear in any other international regulations but that “2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethylphenylsulphonyl)benzenediazonium hydrogen sulphate” does and includes identical packaging provisions. PHMSA does not believe there is any formulation called “2-(N,N-Methylaminoethylcarbonyl)-4-(3,4-dimethyl-phenylsulphonyl)benzene diazonium zinc chloride” that exists, and that this entry as it appears is the result of an editorial error in which two individual formulation names were inadvertently combined. Therefore, PHMSA is correcting the name associated with this formulation by removing the suffix “benzene diazonium zinc chloride” and replacing it with “benzenediazonium hydrogen sulphate.” In addition, PHMSA is assigning a new “Note 6” to this entry among the list of notes following the table. “Note 6” will provide concentration limits of water and organic impurities for this new self-reactive material. PHMSA expects that adding provisions for the transport of (7-Methoxy-5-methyl-benzothiophen-2-yl) boronic acid formulations will facilitate its transport while maintaining the HMR's safe standard for transportation of self-reactive hazardous materials. PHMSA is also revising § 173.224(b)(4). In a previous final rule, HM-215O, PHMSA revised § 173.224 to authorize self-reactive materials to be transported and packed in accordance with packing method OP8 where transport in IBCs or portable tanks is permitted in accordance with § 173.225, provided that the control and emergency temperatures specified in the instructions are complied with. This change allowed materials that are authorized in bulk packagings to also be transported in appropriate non-bulk packagings. PHMSA is making an editorial correction to a reference to the formulations listed in § 173.225. In the course of adding this provision, PHMSA incorrectly directed users to the Organic Peroxide IBC Table by referencing 173.225(f); however, the table is found in 173.225(e). Therefore, PHMSA is correcting that sentence to refer to 173.225(e). Section 173.225 Section 173.225 prescribes packaging requirements and other provisions for organic peroxides. As a result of new peroxide formulations becoming commercially available, the 22nd revised edition of the UN Model Regulations includes updates to the list of identified organic peroxides, which provides for formulations of these materials that are authorized for transportation without prior approval. To maintain consistency with the UN Model Regulations, PHMSA is updating the Organic Peroxide Table in § 173.225(c) by adding new entries for “tert-Butylperoxy isopropylcarbonate,” “tert-hexyl peroxypivalate,” and “acetyl acetone peroxide,” and identifying them as “UN3105, Organic peroxide type D, liquid;” “UN3117, Organic peroxide type E, liquid, temperature controlled;” and “UN3107, Organic peroxide type E, liquid,” respectively. Additionally, PHMSA is adding a “Note 32” following the table, in association with the new entry for “acetyl acetone peroxide,” to indicate that the active oxygen concentration for this formulation is limited to concentrations of 4.15% active oxygen or less. PHMSA also is revising the Organic Peroxide Portable Tank Table in paragraph (g) to maintain alignment with the 22nd revised edition of UN Model Regulations by adding the new formulation “tert-Butyl hydroperoxide, not more than 56% with diluent type B,” identified by “UN3109, Organic peroxide type F, liquid.” This amendment will also include the addition of “Note 2” following the table to specify that diluent type B is tert-Butyl alcohol. PHMSA expects that adding provisions for the transport of these newly available peroxide formulations will facilitate transportation of these materials, while maintaining the HMR's safety standard for transportation of organic peroxide hazardous materials. Section 173.232 Section 173.232 outlines the packaging requirements for articles containing hazardous materials. For the purposes of this section, an “article” means machinery, apparatus, or other device that contains one or more hazardous materials—or residues thereof—that are an integral element of the article, are necessary for its functioning, and cannot be removed for the purpose of transport. Currently, these articles are forbidden from transport on passenger and cargo-only aircraft, as specified in column (9) of the HMT. However, the 2023-2024 ICAO Technical Instructions include new provisions permitting the transport of certain articles containing hazardous materials aboard passenger and cargo-only aircraft. These new provisions allow articles described and classified as “UN3548, Articles containing miscellaneous dangerous goods, n.o.s., 9” or “UN 3538, Articles containing non-flammable, non-toxic gas, n.o.s., 2.2” to be transported by cargo-only and passenger aircraft under certain conditions. PHMSA is making changes consistent with those provisions by adding two new packaging provisions in § 173.232, in addition to the new special provisions A224 and A225 discussed above in Section-by-Section Review of amendments for § 172.102. Specifically, PHMSA is specifying in paragraph (h) that air transport is permitted for UN3548 when the articles: (1) do not have an existing proper shipping name; (2) contain only environmentally hazardous substances exceeding 5 L or 5 kg; and (3) all other conditions of § 173.232 are met. In a new paragraph (h)(ii), the same requirements are added for articles transported under UN3538, which: (1) do not have an existing proper shipping name; (2) contain only gases of Division 2.2 without a subsidiary hazard, except for refrigerated liquefied gases and other gases that are forbidden for transport on passenger aircraft, where the quantity of the Division 2.2 gas exceeds the quantity limits for UN 3363, as prescribed in § 173.222; (3) the quantity of gas in the article does not exceed 75 kg when transported by passenger aircraft or 150 kg when transported by cargo-only aircraft; and (4) gas containing receptacles within the article must meet the requirements of Part 173 and Part 175, as appropriate., or meet a national or regionally recognized pressure receptacle standard. Additionally, both packaging provisions also permit the transport of these articles, containing lithium cells or batteries, provided that the batteries meet the requirements specified in § 173.185(c). The aim of these new provisions is to facilitate the transport of large articles containing environmentally hazardous substances, such as aircraft landing gear struts filled with hydraulic fluid, and large articles containing a non-flammable, non-toxic gas, such as new types of magnetic resonance imaging (MRI) scanners, which often contain compressed helium, as well as lithium cells or batteries. As a participant on the DGP, PHMSA expects that the packaging provisions provide an appropriate level of safety to allow these items to be transported by air and are appropriate for incorporation in the HMR. Section 173.301b Section 173.301b outlines additional general requirements when shipping gases in UN pressure receptacles ( e.g., cylinders). The 22nd revised edition of the UN Model Regulations updated references of several authorized standards for ensuring proper valve protection. In order to maintain the current safety standard of the HMR for valve protection and harmonization with the requirements for UN pressure receptacles, PHMSA is also updating these references. Currently, paragraph (c)(1) requires that quick release cylinder valves for specification and type testing must conform to the requirements in ISO 17871:2015(E), “Gas cylinders—Quick-release cylinder valves—Specification and type testing.” ISO 17871, in conjunction with ISO 10297 and ISO 14246, specifies design, type testing, marking, manufacturing tests, and examination requirements for quick-release cylinder valves, intended to be fitted to refillable transportable gas cylinders and pressure drums, and tubes used to transport compressed or liquefied gases or extinguishing agents charged with compressed gases to be used for fire-extinguishing, explosion protection, and rescue applications. As part of its regular review of its standards, ISO updated and published the second edition of ISO 17871 as ISO 17871:2020(E). PHMSA is revising the valve requirements in this paragraph to require quick release cylinder valves for specification and type testing to conform to ISO 17871:2020(E). After December 31, 2026, conformance with ISO 17871:2015(E) will no longer be authorized in the UN Model Regulations; therefore, for consistency, PHMSA is adding a phaseout date of December 31, 2026, for continued conformance with ISO 17871:2015(E). PHMSA clarified in the “Section IV: Comment Discussion” section of this final rule that the phaseout date of December 31, 2026, applies to the manufacturing of valves under ISO 17871:2015(E). Valves manufactured before December 31, 2026, would still be authorized under the HMR. The second edition of this standard broadens the scope to include quick release valves for pressure drums and tubes, and specifically excludes the use of quick-release valves with flammable gases. Other notable changes include the addition of the valve burst test pressure; the deletion of the flame impingement test; and the deletion of the internal leak tightness test at −40 °C for quick-release cylinder valves, used only for fixed firefighting systems installed in buildings. PHMSA expects that updating the requirements for conformance of UN pressure receptacles with this document will maintain the HMR safety standard for these packagings, and facilitate compliance with valve requirements domestically and internationally by aligning the HMR with changes adopted in the 22nd revised edition of the UN Model Regulations. PHMSA reviewed this edition as part of its regular participation in the review of amendments for the UN Model Regulations. PHMSA also is revising paragraph (c)(2), which requires UN pressure receptacles to have their valves protected from damage to prevent unintentional release of the contents of the receptacles. Various methods on how to achieve damage protection are provided, including equipping the container with a valve cap or guard that conforms to ISO 11117:2008, “Gas cylinders—Valve protection caps and guards—Design, construction and tests” and the Technical Corrigendum 1, a complementary document to the standard. As part of its regular review of its existing standards, in 2019, ISO published an updated version of this standard, 11117:2019, which was adopted in the 22nd revised edition of the UN Model Regulations as a permitted conformance standard for valve protection. This document updates the 2008 version, currently authorized in paragraphs (c)(2)(ii) and (c)(2)(iii). In accordance with the UN Model Regulations, PHMSA also is authorizing the continued use of ISO 11117:2008, in conjunction with the Technical Corrigendum, until December 31, 2026. PHMSA clarified in the “Section IV: Comment Discussion” section of this final rule that the phaseout date of December 31, 2026, applies to the manufacturing of valve protection caps under ISO 11117:2008. Valves manufactured before December 31, 2026, would still be authorized under the HMR. Similarly, for metal hydride storage systems, damage protection of the valve must be provided in accordance with ISO 16111:2008, “Transportable gas storage devices—Hydrogen absorbed in reversible metal hydride.” As part of its regular review of its existing standards, in 2018, ISO published an updated version of this standard, which was adopted in the 22nd revised edition of the UN Model Regulations as a permitted conformance standard for valve protection. Therefore, to maintain alignment with the UN Model Regulations' requirements for UN metal hydride storage systems, PHMSA is updating the required standard for protection of valves to ISO 16111:2018 and including a phaseout date of December 31, 2026, for continued use of valve guards conforming to valve protection standards in ISO 16111:2008. PHMSA clarified in the “Section IV: Comment Discussion” section of this final rule that the phaseout date of December 31, 2026, applies to the manufacturing of valves under ISO 16111:2008. Valves manufactured before December 31, 2026, would still be authorized under the HMR. PHMSA has reviewed the updated ISO standards as part of its regular participation in the review of amendments for the UN Model Regulations and has determined use of the update ISO 16111 will maintain the HMR safety standard for protection of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-06956. Public record. Not legal advice.