Section 172.407 Label Specifications
    Section 172.407 prescribes specifications for hazard communication
labels. Consistent with changes made in Amendment 39-18 of the IMDG
Code and the 2019-2020 ICAO Technical Instructions, PHMSA is amending
paragraph (c)(1) to remove the requirement that the width of the solid
line forming the inner border of labels must be at least 2 mm.
Additionally, we are amending the requirement that the solid line inner
border, currently required to be 5 mm inside and parallel to the edge,
to include the word ``approximately'' before 5 mm. These changes
provide flexibility for minor labeling variations that do not have an
appreciable impact on transportation safety. Finally, paragraph
(c)(1)(iii) which contains a transitional exception allowing for labels
in conformance with the requirements of 49 CFR 172.407(c)(1) (revised
October 1, 2014) to continue to be used until December 31, 2018, is
removed and reserved. PHMSA received comments from IME, DGAC and MDBTC
expressing support for the revision of label border specifications.
Yvonne Keller commented that changes to Sec.  172.407 (c)(1) that were
made in a previous final rule on Nov. 7, 2018 [(HM-219A); 83 FR 55792],
would be overwritten by the proposed changes in the NPRM. The changes
to (c)(1) in this rulemaking were intentional and consistent with
changes made to international standards and adequately account for the
changes to this paragraph in HM-219A.
Section 172.514 Bulk Packagings
    Section 172.514 prescribes placarding requirements and exceptions
for a bulk packaging containing a hazardous material. The general
placarding requirements prescribe that bulk packagings are to be
placarded on each side and each end. Due to the form and shape (e.g.,
round) of flexible bulk containers, it is impractical to require
placards on each side and each end. Consistent with the IMDG Code, in
this final rule, PHMSA is allowing flexible bulk containers to be
placarded on two opposing sides. PHMSA received a comment from DGAC
supporting the changes to placarding requirements for flexible bulk
containers.
Section 172.604 Emergency Response Telephone Number
    Section 172.604 prescribes requirements for emergency response
telephone numbers. Paragraph (d) identifies materials for which an
emergency response telephone number is not required when offered for
transportation. In a March 30, 2017, final rule [(HM-215N); 82 FR
15796], PHMSA harmonized the HMR with international regulations by
adopting separate HMT entries for internal combustion engines based on
the fuel, (e.g., engine, internal combustion, flammable liquid powered
and engine, internal combustion, flammable gas powered). Previously, a
single HMT entry covered all engines. At that time, we did not amend
Sec.  172.604(d)(2) to ensure that ``engines, internal combustion''
offered under any of the new proper shipping names would continue to be
excepted from the emergency response telephone requirements of Sec.
172.604. In this final rule, PHMSA is amending paragraph (d)(2) to list
all possible proper shipping names for engines per the original intent.
PHMSA received a comment from DGAC supporting the change to the
requirements for shipping descriptions of internal combustion engines.
In a previous rulemaking [(HM-219A); 83 FR 55792], PHMSA made
amendments to Sec.  172.604 to clarify that excepted quantities do not
require an emergency response telephone number. This final rule amends
the same section, but accounts for the changes made in HM-219A.
Section 172.800 Purpose and Applicability
    Section 172.800 prescribes the requirements for developing and
implementing plans to address security risks related to the
transportation of hazardous materials in commerce. During review of
existing material that is incorporated by reference into the HMR it was
noted that the International Atomic Energy Agency (IAEA) Code of
Conduct Category 1 and 2, while referenced in paragraph (b)(15), was
not appropriately incorporated by reference (see Sec.  171.7). In this
final rule, PHMSA is incorporating by reference the IAEA Code of
Conduct on the Safety and Security of Radioactive Sources into
paragraph (b)(15). Furthermore, we are revising a reference to known
radionuclides in forms listed as RAM-QC by the Nuclear Regulatory
Commission, to Nuclear Regulatory Commission, Category 1 and Category 2
radioactive materials as listed in Table 1, Appendix A to 10 CFR part
37. Lastly, we are listing the reference to Highway Route Controlled
Quantities separately in this paragraph. This amendment does not
require the creation and retention of security plans by any new
individuals, but simply incorporates by reference the appropriate IAEA
reference and clarifies the existing requirement.

Part 173--Shippers--General Requirements for Shipments and Packagings

Section 173.2a Classification of a Material Having More Than One Hazard
    Section 173.2a outlines classification requirements for materials
having more than one hazard. PHMSA is amending paragraph (a) to
indicate the appropriate classification precedence for the new
``Articles'' HMT entries added in this final rule. This change gives
guidance to offerors and shippers using the new HMT entries numbers
that do not conform to a single hazard class.
Section 173.6 Materials of Trade Exceptions
    Section 173.6 provides authorization for certain hazardous
materials meeting the definition of a material of trade (MOT) to be
transported by motor vehicle in conformance with this section and be
excepted from all other requirements of this subchapter if certain
quantity limitations, packaging provisions, and hazard communication
requirements are met. In two recent rulemakings [(HM-218H); 81 FR
35483] and [(HM-215N); 82 FR 15796], PHMSA removed packing group
assignments from Column (5) of the HMT for all organic peroxides
(Division 5.2), self-reactive substances (Division 4.1), explosives
(Class 1), and specific articles containing hazardous materials
indicated in Table 4 below. This removal of an indication of packing
group for these materials and articles has led to questions about the
ability of these materials and articles to utilize the MOTs exceptions
provided in Sec.  173.6. Further, this final rule adds 12 new proper
shipping names for articles that

are also not assigned a packing group. See ``Section 172.101 Hazardous
Materials Table (HMT)'' for a detailed discussion of this addition.
    It was not the intention of these previous rulemakings to exclude
these materials and articles from the ability to utilize the MOTs
exceptions, provided the hazardous materials within the articles comply
with the existing quantity limitations and other transport provisions
of Sec.  173.6. In this final rule, PHMSA is adding a new paragraph
(a)(7) to clarify that materials and articles for which Column (5) of
the HMT in Sec.  172.101 does not indicate a packing group are
authorized to utilize the MOTs exceptions as applicable, and indicate
the appropriate quantity limits applicable to those materials in
articles. For all materials and articles for which a packing group was
recently removed from the HMT, the corresponding section referenced in
Column (8) of the Sec.  172.101 Table requires packaging meeting either
Packing Group II or III performance level or non-specification
packaging. Therefore, the quantity limits in the new paragraph (a)(7)
will reference the PG II or PG III limits in Sec.  173.6(a)(1)(ii) or
Sec.  173.6(a)(3) for articles containing Division 4.3 materials, as
appropriate. PHMSA received a supporting comment from USWAG stating:
``We are pleased to note that PHMSA has proposed this change in the
current rulemaking. We appreciate PHMSA's efforts to correct this
important oversight.'' In addition, PHMSA is revising paragraph (b)(3)
to clarify the securement requirement for the transportation of
articles under the MOTs exceptions.

                                 Table 4
------------------------------------------------------------------------
      Proper shipping name                UN No.          Class/division
------------------------------------------------------------------------
Ammunition, tear-producing, non- UN2017.................             6.1
 explosive, without burster or
 expelling charge, non-fuzed.
Ammunition, toxic, non-          UN2016.................             6.1
 explosive, without burster or
 expelling charge, non-fuzed.
Batteries, containing sodium...  UN3292.................             4.3
Lithium ion batteries including  UN3480.................               9
 lithium ion polymer batteries.
Lithium ion batteries contained  UN3481.................               9
 in equipment including lithium
 ion polymer batteries.
Lithium ion batteries packed     UN3481.................               9
 with equipment including
 lithium ion polymer batteries.
Lithium metal batteries          UN3090.................               9
 including lithium alloy
 batteries.
Lithium metal batteries          UN3091.................               9
 contained in equipment
 including lithium alloy
 batteries.
Lithium metal batteries packed   UN3091.................               9
 with equipment including
 lithium alloy batteries.
Mercury contained in             UN3506.................               8
 manufactured articles.
Oxygen generator, chemical       UN3356.................             5.1
 (including when contained in
 associated equipment, e.g.,
 passenger service units
 (PSUs), portable breathing
 equipment (PBE), etc).
Safety devices, electrically     UN3268.................               9
 initiated *.
Tear gas candles...............  UN1700.................             6.1
------------------------------------------------------------------------

Section 173.21 Forbidden Materials and Packages
    Section 173.21 describes the situations in which the offering for
transport or transportation of materials or packages is forbidden. In
this final rule, PHMSA is reinstating the provisions adopted in the HM-
215N final rule. A delayed effective date of January 2, 2019 was placed
on amendment 22 of the HM-215N final rule, which reinstated the
provisions of Sec.  173.21 in place prior to publication of that rule.
Section 173.21 was not mentioned in the NPRM for this final rule
because there was no amendment to make at the time, as the effective
text of the section on the date of publication of the NPRM was the text
we are reinstating in this final rule. The provisions that previously
sunset on January 2, 2019 are reinstated in this final rule. PHMSA is
extending the date for the sunset provisions for an additional two
years versus the date proposed in the NPRM. The new sunset date for
transport provisions concerning polymerizing substances is January 2,
2023. This addition is consistent with the discussion above on
polymerizing substances and associated research in the background and
comment discussion sections of this rulemaking.
Section 173.62 Specific Packaging Requirements for Explosives
    Section 173.62 outlines specific packaging requirements for
explosives. In paragraph (c), in the Table of Packing Methods, Packing
Instruction US 1 containing packing instructions for jet perforating
guns, PHMSA is increasing the maximum authorized amount of explosive
contents per tool pallet and cargo vessel compartment from 90.8 kg to
95 kg. These limits are consistent with a provision added to Amendment
39-18 of the IMDG Code authorizing jet perforating guns to be
transported to or from offshore oil platforms, mobile offshore drilling
units, and other offshore installations in offshore well tool pallets,
cradles, or baskets. PHMSA notes that the amendments adopted in section
<IP_ADDRESS>.5 of Amendment 39-18 of the IMDG Code require both ends of jet
perforating guns to be protected by means of steel end caps. PHMSA is
not adopting this additional requirement for steel end caps noting the
safe transportation record of these explosive articles under the
existing requirements of the HMR. PHMSA received one comment from IME
supporting the increase in the maximum authorized amount of explosive
contents per tool pallet and cargo vessel compartment and PHMSA's
decision to not require steel end caps, leaving the existing HMR
requirement intact.
Section 173.121 Class 3--Assignment of Packing Group
    Section 173.121 provides the criteria for the assignment of packing
groups to Class 3 materials. Paragraph (b) provides criteria for
viscous flammable liquids of Class 3 (e.g., paints, enamels, lacquers,
and varnishes) to be placed in packing group III on the basis of their
viscosity, coupled with other criteria. Consistent with recent changes
to the IMDG Code, PHMSA is amending paragraph (b)(1)(iii) to authorize
a packaging capacity up to 450 L (119 gallons), an increase from the
presently authorized 30 L. A working paper submitted to the IMO Sub-
Committee on Carriage of Cargoes and Containers noted that both the UN
Model Regulations and The European Agreements Concerning the
International Carriage of Dangerous Goods by Road and Rail allow
receptacles up to 450 L, and that due to the nature of viscous
materials (e.g., lower flow rate in the event of damage to a
receptacle, and lower levels of solvent vapors), which present a lower
fire risk than non-viscous flammable liquids, there has been a history
of safe transport of these materials by road and

rail since the introduction of the provision.
    This change will increase the allowed volume of viscous liquids in
a single package and will be applicable to all modes except for air.
Specifically, in this final rule, PHMSA is increasing the packaging
limits for viscous flammable liquids of Packing Group II material that
may be assigned Packing Group III. For transport by vessel, PHMSA is
increasing the limit from 30 L to 450 L. For transport by rail and
highway, PHMSA is increasing the limit from 100 L to 450 L. Consistent
with the ICAO Technical Instructions, the packaging quantity limits for
air will remain 30 L for passenger aircraft and 100 L for cargo
aircraft.
Section 173.124 Class 4, Divisions 4.1, 4.2 and 4.3--Definitions
    Section 173.124 contains definitions for Class 4, Divisions 4.1,
4.2, and 4.3. In this final rule, PHMSA is amending paragraph
(a)(4)(iv) to extend the sunset dates for provisions concerning the
transportation of polymerizing substances from January 2, 2019, to
January 2, 2023. See the background and comment discussion sections of
this rulemaking for a more detailed discussion on polymerizing
substances.
Section 173.127 Class 5, Division 5.1--Definition and Assignment of
Packing Groups
    Section 173.127 provides a definition and criteria for the
assignment of packing groups for Division 5.1 Oxidizers. A new Section
39 in the UN Manual of Tests and Criteria was introduced containing all
provisions for the classification of ammonium nitrate based
fertilizers. As a consequence of the new section, existing text in both
the UN Manual of Tests and Criteria and the UN Model Regulations was
amended or removed to avoid duplicative provisions in both
publications. In this final rule, PHMSA is revising the classification
criteria for ammonium nitrate based fertilizers by requiring that they
are classified in accordance with the procedures prescribed in the UN
Manual of Tests and Criteria, Part III, Section 39. These changes will
not result in changes to the current classification provisions for
ammonium nitrate fertilizers, but rather consolidate the provisions for
ease of use and to prevent inadvertent misclassification.
Section 173.134 Class 6, Division 6.2--Definitions and Exceptions
    Section 173.134 provides definitions and exceptions for infectious
substances. Consistent with the UN Model Regulations, PHMSA is revising
the definition for ``patient specimen'' in paragraph (a)(4) by removing
redundant references to humans and animals.
Section 173.136 Class 8--Definitions
    Section 173.136 provides the definition for corrosive materials. In
the UN Model Regulations, the definition for corrosive materials was
revised to align with the text in Chapter 3.2 of the UN GHS and the
OECD Test Guidelines for Testing of Chemicals. PHMSA is amending the
definition in paragraph (a) for a corrosive material by replacing the
text ``full thickness destruction'' with ``irreversible damage.''
Harmonized terminology increases understanding and reduces the
potential for confusion between those in the transport and storage and
use sectors.
Section 173.137 Class 8--Assignment of Packing Group and Appendix I to
Part 173
    Section 173.137 prescribes the requirements for assigning a packing
group to Class 8 (corrosive) materials. Currently, the HMR require
offerors to classify Class 8 material and assign a packing group based
on test data. The HMR authorize a skin corrosion test and various in
vitro test methods that do not involve animal testing. Data obtained
from the currently authorized test methods is the only data acceptable
for classification and assignment of a packing group. In this final
rule, consistent with changes to the UN Model Regulations, PHMSA is
adding alternative packing group assignment methods for making a
corrosivity classification determination for mixtures that do not
involve testing. These amendments include bridging principles and a
calculation method for the classification of mixtures. Bridging
principles include; dilution, batching, concentration of mixtures of PG
I, interpolation within one packing group, and provisions for
substantially similar mixtures.
    In a new paragraph (d), PHMSA is creating an alternative, tiered
approach to classification and packing group assignment depending on
how much information is available about the mixture itself, similar
mixtures, and/or the mixture's ingredients. When sufficient data is
available on similar mixtures to estimate skin corrosion hazards for
bridging, the bridging principle method may be used to classify and
assign a packing group. When no bridging data is available, the more
conservative calculation method may be used. When there is not
sufficient information to determine a packing group using the non-
testing methods described in paragraph (d), the testing and criteria in
Sec.  173.137 introductory paragraph and (a)-(c) must be applied. To
emphasize this point, PHMSA is adding an additional line to Figure 1 in
paragraph (d) to state that in such cases the testing and criteria in
Sec.  173.137 introductory paragraph and (a)-(c) must be applied to the
mixture. This tiered approach ensures an appropriate level of safety in
situations where reliable test data on that specific mixture may not be
available. These alternatives for classifying corrosive mixtures
provide opportunities for offerors to make a classification and packing
group assignment without having to conduct physical tests.
    Additionally, the new corrosivity classification methods are much
more closely aligned with those found in the UN GHS. However, not all
GHS corrosivity classification methods were incorporated in the UN
Model Regulations corrosivity requirements. For example, the use of
extreme pH values to assign corrosivity was not addressed in the UN
Model Regulations, and as such is not adopted in this final rule.
    PHMSA is replacing all instances of the text ``full thickness
destruction'' with ``irreversible damage'' consistent with the change
to the definition of a corrosive material in Sec.  173.136. PHMSA is
also adding a new Appendix I to part 173, containing a flow chart for
use with the calculation method.
    The corrigendum to the 20th Revised edition of the UN Model
Regulations made several corrections to the calculation method
classification criteria that were not included in the NPRM. Consistent
with the UN Model Regulations, the last sentence of paragraph
(d)(2)(i)(B) in the NPRM was added to a new paragraph (d)(2)(i)(B) and
the following subparagraphs were renumbered accordingly. The new
paragraph (d)(2)(i)(B) provides additional guidance on the use of the
flow chart added in Appendix I to part 173.
    Finally, PHMSA is updating the four existing OECD Guidelines
currently incorporated by reference in this section to their 2015
versions (Test Nos. 404, 430, 431, and 435). OECD Guideline 404
addresses in vivo testing and OECD Guidelines 430, 431, and 435 address
in vitro testing. OECD Guideline 404 and OECD Guideline 435 contain
minor variations in the types of information to be recorded as a part
of the test report in relation to the previously incorporated versions.
OECD Guideline 430 and OECD Guideline 431 were updated to include a
reference to a developed document on integrated approaches to testing
and assessment.

Section 173.159 Batteries, Wet
    Section 173.159 prescribes the requirements applicable to the
transportation of electric storage batteries containing electrolyte
acid or alkaline corrosive battery fluid (i.e., wet batteries).
Consistent with the UN Model Regulations, PHMSA is making several
editorial amendments in paragraphs (a) and (d) to specify that
electrically non-conductive packaging materials must be used and that
contact with other electrically conductive materials must be prevented.
Section 173.185 Lithium Cells and Batteries
    Section 173.185 prescribes requirements for lithium cells and
batteries. The introductory paragraph defines terms as used in this
section. In Sec.  173.185(a), the HMR describe UN cell and battery
design testing, general cell and battery design safety requirements,
and packaging requirements. In this final rule, PHMSA clarifies in
paragraph (a)(1) that a single cell battery is considered a ``cell''
and must be transported in accordance with the requirements for cells.
PHMSA is also amending Sec.  173.185(a) to include a lithium cell and
battery test summary (TS) with a standardized set of elements.
Manufacturers and subsequent distributers of lithium cells and
batteries manufactured on or after January 1, 2008 must make this
information available to others in the supply chain. This action is
intended to provide subsequent distributors and consumers the
information necessary to ensure that lithium cells and batteries that
are offered and reoffered for transport contain specific information on
the required UN tests.
    PHMSA received comments on the test summary from Alaska Airlines,
Amazon, the Chamber, COSTHA, DGAC, IATA, MDBTC, NRF, and PRBA. MDBTC
noted ``our Council understands the rationale behind the TS Document
and, if implemented effectively, agrees with PHMSA and international
regulators that making vital battery information more accessible will
enhance the safety of all lithium battery shipments.'' IATA commented
that it believes ``the availability of the test summary will improve
safety by providing clear visibility that the lithium cell and battery
types have been tested as required.'' Amazon commented that there are
other effective methods for improving the safe transportation of
lithium batteries, including common safety messaging across the supply
chain, expanding supplier outreach, and improved packaging methods.
Amazon noted that the test summary requirements, if implemented
strategically and with appropriate clarity, could complement these
other measures. However, Amazon suggested that additional outreach may
be needed to ensure manufacturers and suppliers are informed of the new
test summary requirements. Amazon further states that there is no
publicly available data that supports the claim that the test summary
requirement would improve the safe transport of lithium batteries.
PHMSA recognizes that internal process improvements implemented by
shippers (e.g., supplier outreach and common safety messaging) may also
positively impact lithium battery transportation safety. Additionally,
PHMSA is aware of, and is participating in, ongoing research into
packaging solutions and classification criteria for lithium batteries.
As previously stated, PHMSA believes that the test summary will ensure
shippers are verifying that a cell or battery is from a legitimate and
compliant source, and allow those in the transport chain to more easily
identify non-counterfeit products.
    Comments on the compliance date and applicability date for the
lithium battery test summary are addressed in the ``Comments Received''
section of this rulemaking. The requests that PHMSA reexamine the test
summary document's impact for businesses, specifically small
businesses, are addressed in the ``Information Collection'' section of
this rulemaking and the Regulatory Impact Analysis (RIA). The remaining
comments received regarding the proposed test summary requirements
requested clarifications on terminology and when the document must be
made available, exceptions for button cell batteries, and additional
clarification of the docketed guidance document.
Requests for Clarification on Terminology and When the TS Must Be Made
Available
    PHMSA received a comment from COSTHA that asked for clarification
that in addition to being required for cells and batteries, a test
summary is only required for equipment where the safety components of
the equipment are necessary for the cells or batteries contained to
pass the relevant UN sub-section 38.3 tests (e.g., when the overcharge
protection for a battery is part of the equipment circuit board and not
installed in the battery), and would not be required for all devices
containing lithium batteries. In response to this comment, PHMSA would
like to clarify that a test summary document is required for all cells
and batteries manufactured on or after January 1, 2008, without regard
to whether they are transported as standalone shipments, contained in
equipment, packed with equipment, or used in vehicles. As noted in the
``New UN Requirements for Lithium Battery Test Summaries'' \10\
guidance document found in the docket for this rulemaking, product
manufacturers of devices containing lithium batteries are not required
to create new test summary documents for their products if compliant
test summaries have been created and are made available for the
batteries contained in those products. Product manufactuerers may use
existing test summaries for the batteries in their devices to meet
their obligation to make them available to subsequent distributors.
PHMSA also understands that there may be instances where device
manufacturers desire to create a test summary for a product containing
a lithium cell or battery. While not required, creating a test summary
for a specific device rather than using an existing test summary
applicable to a battery installed in the device is authorized if the
required elements of the test summary are provided.
---------------------------------------------------------------------------

    \10\ https://www.regulations.gov/document?D=PHMSA-2017-0108-0008.
---------------------------------------------------------------------------

    Amazon requested that PHMSA require that manufacturers create a
complete test summary for each lithium battery and lithium battery
product and require that manufacturers post the summary online for
widespread access for anyone in the supply chain. As proposed in the
NPRM and adopted in this final rule, manufacturers and each subsequent
distributor of lithium cells or batteries must make available test
summaries as specified in Sec.  173.185. PHMSA expects that the first
entity offering the cell or battery into transport would likely create
the document for use by subsequent offerors or end users. However, the
HMR intentionally do not specify who must create the test summary to
provide implementation flexibility. The ``make available'' phrase is
also intentional to allow for compliance through any means
manufacturers and subsequent distributors find best fits their business
needs and capabilities. Any method that ensures the information is made
available to downstream distributors would be acceptable. This includes
the envisioned least burdensome method of posting the information or
links to the information on websites. Other possible methods include,
but are not limited to, emailing copies of the required

information or providing physical hard copies with shipments.
    PHMSA received comments from Amazon, COSTHA, MDBTC, and NRF
regarding the entity in the transportation chain that must make the
test summary available and the phrase ``each manufacturer and
subsequent distributor.'' Amazon and NRF commented that because the
supply chain for lithium batteries involves many different entities
acting in different roles, the phrase ``subsequent distributor'' should
be defined. Amazon and NRF suggested that PHMSA clarify ``subsequent
distributor'' by defining it as limited to entities and persons who
possess and transfer title to lithium batteries and lithium battery
products. MDBTC commented that one of the most challenging aspects of
implementing the test summary requirement will be to clearly delineate
the role of a ``subsequent distributor.'' COSTHA requested that PHMSA
confirm that the use of the term ``distributor'' is only to emphasize
that proof of successful design type testing is needed by shippers of
lithium batteries, and that distributors are the logical persons to
have such information needed for the TS, and that ultimately it is the
shipper's responsibility to obtain the information for proof of
classification. COSTHA also commented that the terms ``offerors'' and
``subsequent offerors,'' which are more commonly used in transportation
regulations, would provide more clarity. We confirm COSTHA's
understanding that in addition to manufacturers, distributors of
lithium batteries are a logical entity to have information needed for a
TS and that a shipper or offeror of lithium batteries is the person
ultimately responsible for ensuring that lithium cells and batteries
offered for transport contain specific information on the required UN
tests. In response to the requests to define ``subsequent
distributor,'' PHMSA does not believe that a definition of ``subsequent
distributor'' is necessary, as the intent is simply to indicate in
broad terms the persons responsible for providing test summary
information. PHMSA does not believe that the language proposed by
Amazon and NRF defining ``subsequent distributor'' as those who possess
and transfer title to lithium batteries and lithium battery products
provides additional clarity as the phrase ``transfer title to'' is not
understood in the context of the HMR. We note that the phrase
``subsequent distributor'' is also used in section Sec.  178.2(c) of
the HMR, applicable to package closure notifications, requiring
manufacturers and subsequent distributors to notify each person to whom
the package is transferred with appropriate closure information.
    In its comments, MDBTC stated that the proposed requirement for
subsequent distributors to verify that a test summary document is
available for all of the products it ships could be ``extremely
burdensome'' and could potentially require the hiring of additional
staff to verify the presence of a test summary. MDBTC suggests that a
more reasonable approach would be for shippers of lithium cells and
batteries to notify upstream distributors of test summary requirements
but not to require the explicit verification for each shipment. MDBTCs
comment contains no specific cost estimates, other than referencing the
potential need to hire additional staff to manage the test summary
requirements. PHMSA is cognizant of the costs associated with
compliance such as creation of the test summary and activities related
to subsequent distribution (see the ``Information Collection'' section
of this rulemaking and the Regulatory Impact Analysis (RIA)), but notes
that lithium batteries are already subject to the design testing
requirements. Other than contacting the manufacturer, shippers
currently have no way to confirm compliance with the UN design testing
requirements. The proposed requirement provides a means for shippers to
comply with the HMR when previously no such mechanism existed.
Retrieving a test summary and ensuring it is made available to
subsequent distributors will result in most instances in a one-time
action and cost for each cell or battery design type offered for
transportation (e.g., verifying the existence of the information and
procuring a copy or creating a link for their own further use). It is
expected to streamline what is currently a difficult process. While it
is a requirement to make a test summary available for shipments of
lithium cells or batteries, PHMSA does not intend to require a positive
verification that the information has been received by each downstream
customer. For instance, a distributor who has posted copies of test
summaries or links to the appropriate test summaries on a website
accessible to the next downstream distributor has made the test
summaries available. There would be no additional burden on the initial
distributor unless contact was initiated by the subsequent distributor
who is unable to locate a test summary.
    MDBTC also submitted comments concerning who can make a request for
a test summary, suggesting that requests should be limited to an actual
distributor and not just anyone from the public or a person that is
attempting to collect information not related to transport. MDBTC
indicates that this limitation would be especially critical with
respect to new product development and protecting proprietary
information. While it is not envisioned that consumers of lithium
batteries or products containing lithium batteries would generally
request a test summary, if they are going to be offering the batteries
back into transportation it would be necessary for them to have access
to this information. The information required in the test summary was
specifically crafted so as not to require proprietary information or
information that would hinder product development.
    Amazon commented that PHMSA should clarify that if a subsequent
distributor cannot obtain a test summary, but has a process in place to
accurately classify lithium batteries, that distributor will not be
subject to enforcement action for failure to provide a test summary for
a specific product. PHMSA disagrees with the commenter. In accordance
with Sec.  173.185(a)(1), each lithium cell or battery must be of the
type proven to meet the criteria in part III, sub-section 38.3 of the
UN Manual of Tests and Criteria. Therefore, a lithium cell or battery
could not be classified unless the information provided on the test
summary was available. If a distributor or other person in the
transportation chain is classifying lithium cells or batteries, the
information needed to develop a test summary must be available to that
person.
    COSTHA compared the test summary requirements to those for safety
data sheets (SDS) required by the Occupational Safety and Health
Administration (OSHA) under their Hazard Communication Standard in 29
CFR, Sec.  1910.1200. Manufacturers of hazardous chemicals are required
to develop and make available safety data sheets that indicate the
hazards associated with the hazardous chemicals that may be encountered
in the workplace. COSTHA notes that SDSs are required to be provided by
distributors to commercial customers, but not to non-commercial
customers. COSTHA notes that test summary distributors would be
required to provide the testing summary to a greater relative
population than OSHA requires SDSs to be made available. PHMSA
reiterates that the HMR require that shippers of lithium cells and
batteries know that their batteries are of a tested type. If a non-
commercial customer does not intend to offer the battery or cell for

transportation there would be no requirement for them to further make
the test summary available.
Requests for Exceptions for Button Cell Batteries
    DGAC and MDBTC requested PHMSA provide an exception from the
requirement to provide a test summary for button cells installed in
equipment or articles. The commenters noted that button cells installed
in equipment are excepted from packaging and marking requirements under
existing regulations. While lithium button cell batteries are excepted
from certain requirements in the HMR and international standards, they
are not excepted from the requirement to be of a tested type. The
purpose of the test summary is provide information to downstream
shippers that the lithium battery passed required tests and can be
accepted or offered for transport. The primary benefit of the test
summary is the increased visibility of the presence of lithium
batteries particularly in products, and the ability of individuals in
the transport chain to determine that that the lithium cells and
batteries they offer for transport are of a tested type. If PHMSA was
to accept the suggestions of MDBTC and DGAC to except equipment
containing lithium button cell batteries from the test summary
requirements, the benefits attributed to these provisions would not be
gained. Excepting certain button cells and batteries from the test
summary requirement does not enhance compliance and could lead to
confusion on whether these cells and batteries are even subject to the
design tests.
Requests for Clarification on the Docketed Guidance Document
    PHMSA drafted a guidance document to assist manufacturers and
distributors with understanding and implementing this requirement. The
guidance includes an explanation of the requirement, a sample test
summary, and questions and answers. A copy of this guidance is
available in the docket for this rulemaking. In the NPRM, PHMSA
requested comment on the usefulness of the guidance. PHMSA also
requested comment to help improve its clarity and provide additional
questions to add to the guidance. PHMSA received comments from COSTHA,
MDBTC, PRBA, and the Chamber concerning the guidance document, which
are categorized as follows:

 Must the test summary accompany the shipment
 Additional input on the development of the guidance document
 Devices containing different battery types
 Test summary availability
Must the Test Summary Accompany the Shipment
    In their comments, COSTHA and MDBTC provided general support for
PHMSA's effort to issue a guidance document. COSTHA suggested that the
HMR and guidance document should be amended to clarify that the test
summary document is not required to be provided as documentation with
each shipment, noting that PHMSA cannot prohibit industry from
implementing its own procedures, such as requiring additional
documentation be provided with a shipment. The guidance document
available in the docket addressed this question. Specifically, on page
5 of the guidance document, question and answer number 7. The question:
``Must a manufacturer or distributor include the TS with product
shipments?'' The answer: ``No, the product manufacturer or distributor
would have to make the information available. This may be achieved by
placing this information on a website or through alternative means.''
    PHMSA is not amending the HMR, as it believes the text in paragraph
(a)(3) sufficiently addresses the commenters concern by indicating that
the test summary must be made ``available upon request.'' The summary
document does not need to physically accompany a shipment containing
lithium batteries. PHMSA supports making the test summary available by
electronic means and may revise the guidance document for
clarification.
Additional Input on the Development of the Guidance Document
    COSTHA requested that PHMSA revise the guidance document once the
final rule is issued and subsequently update it on a periodic basis
with input from stakeholders. COSTHA also requested that PHMSA solicit
additional input on the guidance document before the end of 2019 as
experience gained both domestically and internationally could be
captured in the guidance document for future reference. MDBTC requested
that PHMSA revise the guidance document prior to issuing a final rule
and consider soliciting additional input on the document. PHMSA does
not believe an additional round of comments is necessary prior to
publishing the final rule since comments were already received. PHMSA
does intend to update the guidance to account for comments received in
response to the NPRM. PHMSA also intends to update the guidance
document as regulations change and when experience and feedback from
stakeholders dictate a need.
Devices Containing Different Battery Types
    In its comments, MDBTC suggested that the guidance document should
address situations where any number of different commercially available
cells or batteries may be installed in a medical device. Specifically,
the commenter indicated that while each battery supplier may have made
the test summary available, it is a challenge to identify which battery
is in the product, especially when it may be one of several similar
batteries produced by different suppliers. PHMSA answered this question
on page 5 of guidance document. The test summary requirement may be
satisfied by using multiple, different test summaries for the batteries
themselves, or by issuing a comprehensive test summary for the device
that includes information for all of the batteries contained within the
device.
Test Summary Availability
    PHMSA received comments from Amazon, DGAC, MDBTC, NRF, PRBA, and
the Chamber concerning the timeframe in which the test summary must be
provided following a request. The commenters asked for clarification as
to what constitutes a ``reasonable time and location.'' NRF, PRBA, and
the Chamber suggested PHMSA clarify that a ``reasonable'' time does not
mean that the test summary must be made available immediately upon
request. Amazon suggested that PHMSA should clarify that ``subsequent
distributors'' will not be required to have test summaries on hand and
will be afforded a reasonable amount of time to obtain one from the
manufacturer. Amazon further suggested that PHMSA should clarify that
it is the responsibility of the manufacturer to respond in a timely
manner. PRBA and the Chamber suggested that PHMSA's final rule and
guidance document should be consistent with the IATA's lithium battery
guidance \11\ and industry test summary Q&A \12\ that states: ``Due to
the large volume of lithium batteries and lithium battery powered
products that are shipped daily, manufacturers and distributors should
not be expected to immediately provide a test summary for every product
they ship. Manufacturers and distributors should be provided a
reasonable amount of time to provide

the required test summary.'' MDBTC recommended that PHMSA revise the
text in paragraph Sec.  173.185(a)(3) from, ``must make available upon
request at reasonable times and locations,'' to mirror the language in
the UN Model Regulations, which reads ``shall make available.'' PHMSA
agrees with the commenters that the test summary does not need to be
made available immediately upon request, as that was not the intent of
this requirement in the UN Model Regulations. As a result, PHMSA is
amending the guidance document to clarify that manufacturers and
distributors should make available the test summary in a reasonable
amount of time but should not be expected to immediately provide a test
summary for every product they ship. In addition, in this final rule,
PHMSA is revising paragraph (a)(3) consistent with text in the
international standards (a)(3) with the phrase ``must make available''
instead of ``must make available upon request at reasonable times and
locations.'' The language proposed in the NPRM was an attempt to add
clarity to the UN text by using similar language found in other
sections of the HMR. Based on the comments received and upon further
consideration, PHMSA believes aligning with the UN text will better
reflect the intent of the regulation and avoid the possibility of
imposing an undue burden.
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    \11\ https://www.iata.org/whatwedo/cargo/dgr/Documents/lithium-battery-shipping-guidelines.pdf.
    \12\ http://www.prba.org/wp-content/uploads/Q-A-on-Lithium-Battery-Test-Summary-September-2018-Version-A.pdf.
---------------------------------------------------------------------------

    Section 173.185(b) requires lithium cells and batteries to be
packed in inner packagings in such a manner as to prevent short
circuits, including movement that could lead to short circuits. These
inner packagings must be placed in an outer package that conforms to
the requirements of part 178, subparts L and M, at the Packing Group II
performance level. PHMSA is making several amendments to Sec.
173.185(b) to update and clarify various provisions. PHMSA is amending
Sec.  173.185(b)(2)(ii) to specify that lithium cells and batteries
including lithium cells or batteries packed with, or contained in,
equipment, must be packaged in a manner that prevents damage caused by
movement or placement within the package. The current text requires
lithium batteries to be packaged in a manner to prevent movement. This
could be interpreted as to require no movement within the package. This
amendment minimizes the ambiguity in the current requirements and only
prohibits movement that leads to damage within the package. PHMSA
received a comment from MBDTC in support of this amendment.
    Further, PHMSA is amending Sec.  173.185(b)(3)(i) to specify that
inner packagings must be separated from electrically conductive
materials. This change is based on revisions to the UN Model
Regulations that revised the existing requirement that inner packagings
separate lithium cells and batteries from ``conductive materials'' to
require separation from ``electrically conductive'' materials. In the
NPRM, PHMSA had proposed adding ``except for transportation by
passenger-carrying aircraft,'' to the beginning of Sec.  173.185(b)(5).
This paragraph provides an exception from specification packaging for
lithium batteries that weigh 12 kg (26.5 pounds) or more and have a
strong, impact-resistant outer casing. This proposed addition is not
being adopted, as the last sentence of this paragraph indicates that
shipments in accordance with this paragraph are not permitted for
transportation by passenger-carrying aircraft, and may be transported
by cargo aircraft only if approved by the Associate Administrator.
    PHMSA is amending Sec.  173.185(b)(6) to clarify the provisions for
the use of large packagings. Currently, large packagings are authorized
for the transport of a single battery, including a battery contained in
equipment. This amendment clarifies that large packagings are limited
to a single battery or to a single item of equipment. This acknowledges
that a single item of equipment may contain one or more cells or
batteries. Additionally, consistent with revisions to the ICAO
Technical Instructions, PHMSA is adding a new paragraph (b)(7) to
prohibit the placement of lithium batteries in the same outer packaging
as substances and articles of the following classes and divisions:
Class 1 (explosives) other than Division 1.4S; Division 2.1 (flammable
gases); Class 3 (flammable liquids); Division 4.1 (flammable solids);
or Division 5.1 (oxidizers) when offered for transport or transported
by aircraft. This action promotes consistency with the ICAO Technical
Instructions and responds to a recommendation (A-16-001) from the NTSB
stemming from the investigation of the July 28, 2011 in-flight fire and
crash of Asiana Airlines Flight 991 that resulted in the loss of the
aircraft and crew. The investigation report cited as a contributing
factor the flammable materials and lithium ion batteries that were
loaded together either in the same or adjacent pallets. Logically, if
the materials are not allowed to be stowed in the same or adjacent
pallets, segregation within the same package also would result in
decreased risk in the event of a fire.
    Section 173.185(c) of the HMR describes provisions for the carriage
of up to eight small lithium cells or two small lithium batteries per
package with alternative hazard communication that replaces the Class 9
label with a lithium battery mark. Additional conditions for the
transport of small lithium cells and batteries by air are contained in
Sec.  173.185(c)(4). In this final rule, PHMSA is making several
amendments to Sec.  173.185(c)(2), (c)(3), and (c)(4) to align the HMR
with the UN Model Regulations and the ICAO Technical Instructions,
address the hazards associated with placing lithium batteries next to
other hazardous materials, and clarify specific provisions. PHMSA is
amending Sec.  173.185(c)(2) to except equipment that is robust enough
to protect lithium batteries from damage or short circuits from the
requirement to be packaged. The current regulations provide an
exception from the requirement for the package to be rigid, but
otherwise require the equipment to be placed into a package. This
amendment removes an unnecessary requirement to package otherwise
robust equipment that protects lithium batteries from damage or short
circuits. This amendment further aligns the HMR with the UN Model
Regulations provisions found in special provision 188 for packaging of
lithium cells, batteries, and equipment. PHMSA is removing the expired
transitional provision in paragraph Sec.  173.185(c)(3)(ii), applicable
to marking requirements. PHMSA is adding a new Sec.  173.185(c)(3)(iii)
to require that when packages of lithium cells or batteries required to
bear the lithium battery mark are placed in an overpack, the lithium
battery mark must either: (1) Be clearly visible through the overpack;
or (2) the lithium battery mark must also be affixed on the outside of
the overpack, and the overpack must be marked with the word
``OVERPACK'' in lettering at least 12 mm (0.47 inches) high. PHMSA is
amending Sec.  173.185(c)(4)(ii) to adopt an ``OVERPACK'' marking
minimum size requirement consistent with the proposed requirement for
surface transport in Sec.  173.185(c)(3)(iii). PHMSA received a comment
from MBDTC in support of the amendments that align the ``OVERPACK''
marking requirements. PHMSA is clarifying the limits for spare
batteries in Sec.  173.185(c)(4)(vi) to state that up to ``two spare
sets'' of cells or batteries can be placed in a package with equipment.
For the purposes of this paragraph, a spare set is equal to the number
of individual spare cells or batteries

required to power each piece of equipment. For example, if a single
item of equipment requires two lithium batteries to operate, a maximum
of four additional batteries (two spare sets) may be placed in the
package, provided the package continues to meet the other conditions of
Sec.  173.185(c). PHMSA received a comment from MBDTC in support of
this amendment. PHMSA is adding a new Sec.  173.185(c)(4)(viii) to
specify that for air transport, lithium cells and batteries may not be
placed in the same package as other hazardous materials. Further,
packages containing small lithium cells and batteries must not be
placed into an overpack with packages containing Class 1 (explosives)
other than Division 1.4S, Division 2.1 (flammable gases), Class 3
(flammable liquids), Division 4.1 (flammable solids) or Division 5.1
(oxidizers).
    Section 173.185(d) of the HMR describes provisions for the
transport of lithium cells and batteries for disposal or recycling. In
the NPRM, PHMSA proposed to authorize the use of certain rigid large
packagings to transport a single large battery or a single large item
of equipment when transported for disposal or recycling. PRBA noted
that the existing regulations for disposal or recycling of lithium
batteries authorize strong outer packaging conforming to the
requirements of Sec. Sec.  173.24 and 173.24a for batteries and
equipment of all sizes and do not require the use of UN packaging.
PHMSA agrees with the commenter. Lithium batteries and equipment
transported for disposal or recycling are not required to be placed in
UN packagings. PHMSA did not intend to implement more burdensome
packaging requirements for large lithium batteries transported for
disposal or recycling where packages prepared in accordance with the
current requirements have a demonstrated record of safe transport.
Accordingly, PHMSA is not adopting this proposal and amends Sec.
173.185(d) to clarify this point. The use of UN specification
packagings, including large packagings, will remain an option.
    Section 173.185(e) of the HMR sets forth provisions for the
transport of low production and prototype lithium cells and batteries,
including equipment. In this final rule, PHMSA is making an editorial
amendment to the Sec.  173.185(e) introductory paragraph to clarify
that the ``transported for purposes of testing'' condition applies to
prototype cells and batteries and that both low production and
prototype lithium cells and batteries may be contained in equipment.
PHMSA received a comment from MBDTC in support of this amendment. PHMSA
is also making an editorial amendment to paragraphs (e)(1) and (2) to
specify that cushioning material must be electrically non-conductive
instead of the existing ``non-conductive'' requirement. In addition,
PHMSA is adding a new paragraph (e)(4) to authorize the use of certain
rigid large packagings to transport a single large battery or a single
large item of equipment. This provides additional packaging options to
transport large batteries and equipment that, by nature of their size
or shape, cannot fit into a non-bulk package. Each of the remaining
sub-paragraphs in Sec.  173.185(e) is renumbered and remain unchanged.
    Section 173.185(f) of the HMR describes the provisions for the
transport of lithium batteries that have been damaged or identified by
the manufacturer as being defective for safety reasons, and that have
the potential of producing a dangerous evolution of heat, fire, or
short circuit (e.g., those being returned to the manufacturer for
safety reasons). PHMSA is making an editorial amendment to Sec.
173.185(f)(2) to specify that cushioning material must be electrically
non-conductive, which harmonizes the HMR with the international
standards. PHMSA is also amending Sec.  173.185(f)(3) to clarify the
provisions for the use of large packagings. Currently, large packagings
are authorized for the transport of a single battery including a
battery contained in equipment. This amendment clarifies that large
packagings are limited to a single battery or to a single item of
equipment. This acknowledges that a single item of equipment may
contain one or more batteries.
    ALPA commented that they did not see any proposed amendments for
harmonization with three emergency amendments to the 2015-2016 ICAO
Technical Instructions concerning the transport of lithium batteries by
air. PHMSA published an interim final rule entitled ``Enhanced Safety
Provisions for Lithium Batteries Transported by Aircraft'' on March 6,
2019 [(HM-224I); 84 FR 8006], that amended and added multiple
paragraphs in Sec.  173.185 incorporating these ICAO Technical
Instructions amendments. The NPRM did not account for these amendments
and additions. Therefore, in this final rule, we are revising this
section consistent with the March 6, 2019 interim final rule.
Specifically, we are including text added or revised in the March 6,
2019 interim final rule in the following paragraphs: Sec.
173.185(c)(1)(iii); (c)(4)(ii) through (vii); (c)(5); redesignated
paragraph (g) as paragraph (h); and a new paragraph (g).
Section 173.218 Fish Meal or Fish Scrap
    Section 173.218 contains packaging requirements for shipments of
stabilized fish meal and fish scrap. Stabilization of fish meal and
fish scrap by applying antioxidants is required in order to offer the
material under a Class 9 stabilized proper shipping name. Historically,
the IMDG Code and the HMR only reference one antioxidant, ethoxyquin,
by name, although other antioxidants exist. In response to testing
performed by the International Fishmeal and Fish Oil Organization \13\
that indicated that concentrations of 50 ppm (mg/kg) of ethoxyquin, 100
ppm (mg/kg) of butylated hydroxytoluene (BHT), and 250 ppm (mg/kg) of
tocopherol-based antioxidant are effective in stabilizing fish meal,
the UN and the IMO adopted allowances for the use of two additional
antioxidants (butylated hydroxytoluene and tocopherols) and a reduction
in the required ethoxyquin concentration at time of shipment from 100
ppm to 50 ppm.
---------------------------------------------------------------------------

    \13\ https://www.unece.org/fileadmin/DAM/trans/doc/2016/dgac10c3/ST-SG-AC.10-C.3-2016-82e.pdf.
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    In this final rule, PHMSA is amending paragraph (c) of this section
to lower the required ethoxyquin level at the time of shipment in bulk
in freight containers for transportation by vessel from 100 ppm to 50
ppm and to specify acceptable levels of for butylated hydroxytoluene
(100 ppm) and for tocopherols (250 ppm) in shipments of fish meal or
fish scrap transported by vessel in bulk in freight containers.
Reducing the required minimum concentration of ethoxyquin and
permitting the use of additional antioxidants will reduce cost and add
flexibility while maintaining an equivalent level of safety.
Section 173.220 Internal Combustion Engines, Vehicles, Machinery
Containing Internal Combustion Engines, Battery-Powered Equipment or
Machinery, Fuel Cell-Powered Equipment or Machinery
    Section 173.220 prescribes transportation requirements and
exceptions for internal combustion engines, vehicles, machinery
containing internal combustion engines, battery-powered equipment or
machinery, and fuel cell-powered equipment or machinery.
    Special provision 135 is assigned to the HMT entries for certain
vehicles. It specifies that if a vehicle is powered by both a flammable
liquid and a

flammable gas internal combustion engine, it must be consigned under
the entry ``Vehicle, flammable gas powered.'' Special provision 135
does not, however, clearly indicate that a flammable gas-powered
vehicle must also comply with the requirements applicable to the
quantity of flammable liquid in the fuel tank in addition to all of the
applicable provisions for a flammable gas-powered vehicle. Consistent
with the ICAO Technical Instructions, PHMSA is clarifying in a new
paragraph (b)(2)(ii)(C) that if a vehicle is powered by a flammable
liquid and a flammable gas internal combustion engine, the flammable
liquid fuel tank requirements of paragraphs (b)(1) of this section must
also be met.
    In this final rule, PHMSA is making an editorial amendment to the
requirements for vehicles powered by lithium batteries in paragraph
(d). Specifically, we are clarifying that when a lithium battery is
removed from the vehicle and is packed separately from the vehicle in
the same outer packaging, the package must be classified as ``UN 3481,
Lithium ion batteries packed with equipment'' or ``UN 3091, Lithium
metal batteries packed with equipment,'' and is not eligible for
classification as ``UN3171, Battery-powered vehicle or Battery-powered
equipment.'' This clarification is a result of a working paper
submitted at the 26th Meeting of the ICAO Dangerous Goods Panel (ICAO
DGP/26) concerning the carriage of battery powered vehicles such as
``e-bikes'' and it addresses instances where a shipper removes the
lithium battery from the battery powered vehicle and subsequently packs
the battery in a separate packaging, which is then placed with the
vehicle in the same outer packaging. Although this was the result of an
amendment to the ICAO Technical Instructions, we believe that it
provides clarification of a preexisting requirement for all modes of
transport.
Section 173.222 Dangerous Goods in Equipment, Machinery or Apparatus
    Section 173.222 specifies the requirements for dangerous goods in
machinery or apparatus. During the course of reviewing provisions
associated with the new HMT entries for ``Articles containing hazardous
materials, n.o.s.,'' PHMSA found that the quantity limits prescribed in
Sec.  173.222 are inconsistent with certain international standards.
The current authorized quantity of hazardous materials in one item of
machinery or apparatus are as follows: 1 kg for solids; 0.5 L for
liquids, and 0.5 kg for Division 2.2 gases. These quantity limits are
consistent with the ICAO Technical Instructions; however, they are not
aligned with the UN Model Regulations or the IMDG Code. Special
provision 301 of the UN Model Regulations and the IMDG Code authorize
up to the limited quantity amount for each item of dangerous goods
contained in the machinery or apparatus. An example of the current
authorizations is for an article containing ``Heptanes UN 1206, Class
3'' the HMR and ICAO Techinical Instructions authorize the use of UN
3363 for machinery or apparatus up to a total net quantity of .5 L. For
the same material the UN Model Regulations and the IMDG Code authorize
1 L total net quantity of heptanes. The authorized limited quantity
amounts in the IMDG Code and the UN Model Regulations generally align
the ``methodology for determining limited quantities'' indicated in the
Guiding Principles for the Development of the UN Model Regulations.\14\
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    \14\ https://www.unece.org/fileadmin/DAM/trans/danger/publi/unrec/GuidingPrinciples/Guiding_Principles_Rev19.pdf.
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    In a previous final rule published on March 5, 1999 [Docket No.
RSPA-98-4185 (HM-215C); 64 FR 10742], PHMSA's predecessor agency, the
Research and Special Projects Administration (RSPA), aligned the HMR
with the ICAO Technical Instructions by adding ``Dangerous goods in
machinery or Dangerous goods in apparatus'' to the HMT. The proper
shipping name was assigned identification number ``NA8001,'' special
provision 136 was added for directions on class assignment, and Sec.
173.222 was added containing requirements applicable to the new entry.
In the HM-215C rulemaking, RSPA stated that upon the assignment of a UN
identification number, it would revise the entry accordingly [81 FR
53935]. This was accomplished in the 11th revised edition of the UN
Model Regulations, in which identification number UN3363 and Class 9
were assigned to this entry. The ICAO Technical Instructions were
amended to be consistent with the UN Model Regulations. Subsequently,
the HMR were updated accordingly in a final rule published on June 21,
2001 [Docket No. RSPA-2000-7702 (HM-215D); 66 FR 33315]. While the HMR
were amended to incorporate the identification number and Class 9
designation, the quantity limit was not amended to allow up to the
limited quantity amount authorized by the UN Model Regulations.
Therefore, the ICAO quantity limits were retained for all modes of
transport.
    In the 20th Revised Edition of UN Model Regulations and Amendment
39-18 of the IMDG Code, the new ``Articles containing hazardous
materials, n.o.s.'' entries apply to articles that contain only
hazardous materials that exceed the permitted limited quantity amount
for UN3363. The ICAO addressed the difference between the quantity
authorized in the Technical Instructions and both the UN Model
Regulations and the IMDG Code by amending ICAO special provision A107.
The revised special provision A107 indicates that where the quantity of
dangerous goods contained in machinery or apparatus exceeds the limits
permitted by ICAO Technical Instructions Packing Instruction 962 (same
as the existing HMR authorization), and the dangerous goods meet the
provisions of Special Provision 301 of the UN Model Regulations, the
machinery or apparatus may be transported as UN3363 only with the prior
approval of the appropriate authority of the State of Origin and the
State of the Operator under the written conditions established by those
authorities. The use of the new ``Articles containing hazardous
materials, n.o.s.'' requires in all cases require competent authority
approval prior to being offered for transport in accordance with the
ICAO Technical Instructions.
    To more closely align with the UN Model Regulations and IMDG Code,
for other than air transportation, PHMSA is increasing the quantity
limits for liquids and solids in paragraph (c) up to the limited
quantity amount prescribed in the corresponding section of Part 173
referenced in Column (8A) of the Sec.  172.101 Table. Without this
amendment, the HMR would differ from the UN Model Regulations and IMDG
Code for application of the new ``Articles, n.o.s.'' entries, and an
approach used by the ICAO Technical Instructions would be necessary for
all modes. The authorized quantity for gases remains unchanged for all
modes of transport.
Section 173.224 Packaging and Control and Emergency Temperatures for
Self-Reactive Materials
    Section 173.224 establishes packaging and control and emergency
temperatures for self-reactive materials. The Self-Reactive Materials
Table in paragraph (b)(7) of this section specifies self-reactive
materials authorized for transportation without first being approved
for transportation by the Associate Administrator for Hazardous
Materials Safety, as well as requirements for transporting these
materials. Consistent with the UN

Model Regulations, in paragraph (b)(7), PHMSA is adding a new entry
``Phosphorothioic acid, O-[(cyanophenyl methylene) azanyl] O,O-diethyl
ester'' to the Self-Reactive Materials Table. In addition, consistent
with the UN Model Regulations, a new ``Note 5'' assigned to this entry
is added to the list following the table stating that this entry
applies to the technical mixture in n-butanol within the specified
concentration limits of the (Z) isomer.
    Paragraph (c) of this section prescribes requirements for new self-
reactive materials, formulations, and samples. In paragraph (c)(4),
PHMSA is authorizing small samples of certain potentially explosive or
self-reactive substances when transported for testing purposes. These
substances usually consist of organic molecules which are active
ingredients, building blocks, or intermediates for pharmaceutical or
agricultural chemicals. The molecules of the substances often carry
functional groups listed in tables A6.1 and/or A6.2 in Annex 6
(Screening Procedures) of the UN Manual of Tests and Criteria, that
would indicate explosive or self-reactive properties; however, these
substances are not designed to be explosives of Class 1. This amendment
is necessary because during the early development phase of a new
product, complete test data is often unavailable but the substances
must be transported for further testing. The provisions adopted in
paragraph (c)(4) prescribe applicability criteria and packaging
conditions for these substances to be transported as samples for the
purpose of testing. These criteria and packaging conditions are based
on submissions to the United Nations SCOE on the Transport of Dangerous
Goods showing the effectiveness of the packaging methods.
    Consistent with the UN Model Regulations, PHMSA is revising
paragraph (b)(4) to authorize the transportation of self-reactive
substances packed in accordance with packing method OP8 (non-bulk
packaging authorization) where transport in IBCs or portable tanks is
permitted in accordance with Sec.  173.225, provided that the control
and emergency temperatures specified in the instructions are complied
with. This change allows materials that are authorized in bulk
packagings to also be transported in appropriate non-bulk packagings.
Section 173.225 Packaging Requirements and Other Provisions for Organic
Peroxides
    Section 173.225 prescribes packaging requirements and other
provisions for organic peroxides. The Organic Peroxide Table in the UN
Model Regulations is continually updated based on data submitted by
governments and industry groups to account for new peroxides and
formulations that have become commercially available. Consistent with
revisions to the UN Model Regulations, PHMSA is revising the Organic
Peroxide Table in paragraph (c) by adding the entries: ``Di-(4-tert-
butylcyclohexyl) peroxydicarbonate [as a paste],'' ``Diisobutyryl
peroxide [as a stable dispersion in water],'' and ``1-Phenylethyl
hydroperoxide.'' The table in paragraph (d)(4) currently titled
``Maximum Quantity per Packaging/Package'' is amended to read ``Table
to paragraph (d): Maximum Quantity per Packaging/Package.'' This change
is being made in response to a request made during the publishing of
the NPRM by the Federal Register to align with their requirements for
table headings in regulations. The Organic Peroxide IBC Table in
paragraph (e) is revised to maintain alignment with the UN Model
Regulations by adding new entries for ``Cumyl peroxyneodecanoate, not
more than 52%, stable dispersion, in water,'' ``2,5-Dimethyl-2,5-
di(tert-butylperoxy)hexane, not more than 52% in diluent type A,''
``3,6,9-Triethyl-3,6,9-trimethyl-1,4,7-triperoxonane not more than 27%
diluent type A,'' and ``tert-Amyl peroxy-2-ethylhexanoate, not more
than 62% in a diluent type A'' and by adding a type 31HA1 IBC
authorization to the existing entry for ``tert-Butyl hydroperoxide, not
more than 72% with water.''
    In addition, consistent with the UN Model Regulations, PHMSA is
amending paragraphs (e) and (g) to authorize organic peroxides to be
transported packed in accordance with packing method OP8, where
transport in IBCs or portable tanks is permitted, provided that the
control and emergency temperatures specified in the instructions are
complied with.
Section 173.232 Articles Containing Hazardous Materials, n.o.s.
    New section 173.232 prescribes requirements for articles not
otherwise specified by name in the HMR that contain hazardous materials
of various hazard classes and divisions. This addresses situations in
which hazardous materials or hazardous materials residues are present
in articles in quantities greater than the amounts authorized for
dangerous goods in machinery or apparatus. This new section authorizes
a safe method to transport articles that may be too large to fit into
typical packages. The packaging section 173.232 added in this final
rule for the new proper shipping names for articles requires packaging
at the Packing Group II performance level. Non-specification packaging,
and transportation in an unpackaged manner or on pallets when the
hazardous materials are afforded equivalent protection by the article
in which they are contained, are also authorized. Absent these
provisions to package and transport these materials safely, these
articles may be offered for transport under provisions that do not
adequately account for the physical and chemical properties of the
substances and may require the issuance of an approval by PHMSA's
Associate Administrator for Hazardous Materials Safety.
Section 173.301b Additional General Requirements for Shipment of UN
Pressure Receptacles
    Section 173.301b describes additional requirements when shipping
gases in UN pressure receptacles. In paragraph (c)(1), PHMSA is
incorporating ISO 17871:2015 containing specification and type testing
requirements for quick release cylinder valves. In paragraph (d)(1),
PHMSA is phasing out ISO 13340:2001, Transportable gas cylinders--
Cylinder valves for non-refillables cylinders--Specification and
prototype testing, which can be utilized until December 31, 2020. ISO
13340:2001 is being phased out because the applicable valve standard in
ISO 13340:2001 has been incorporated into ISO 11118:2015.
Section 173.304b Additional Requirements for Shipment of Liquefied
Compressed Gases in UN Pressure Receptacles
    Section 173.304b contains additional requirements for the shipment
of liquefied compressed gases in UN pressure receptacles. In this final
rule, consistent with a change made in the 20th Revised Edition of the
UN Model Regulations, PHMSA is amending paragraph (b)(5) by replacing
``liquid phase'' with ``liquefied gas'' and ``compressed'' with
``compressed gas'' to better describe the phases of the material being
stored and to align with the UN language.
Section 173.422 Additional Requirements for Excepted Packages
Containing Class 7 (Radioactive) Materials
    Section 173.422 contains additional requirements for excepted
packages containing Class 7 (radioactive) materials. Shipments of
excepted packages containing Class 7 materials are not required to meet
the general

shipping paper requirements found in the HMR. Amendment 39-18 of the
IMDG Code adopted a requirement that vessels carrying these excepted
packages include information concerning these packages (e.g., UN ID
Number and location on board the vessel) on the Dangerous Cargo
Manifest (DCM). Historically, the HMR has not required any
documentation to accompany shipments of excepted packages containing
radioactive material when offered for transportation by vessel. In this
final rule, PHMSA is amending the DCM requirements in Sec.  176.30 to
require information about these shipments to be included in the DCM
carried aboard the vessel. Without a corresponding amendment to Sec.
173.422 to require the information to be provided to the vessel
operator, the vessel operator would not have the information available
that would be required to be included on the DCM.
    In this final rule, PHMSA proposes to add a new paragraph (f) that
would require excepted packages of radioactive materials offered for
transportation by vessel to have a special transport document such as
an ocean bill of lading or other similar document that includes the UN
identification number for the material being offered, the name and
address of the consignor and consignee, and a container packing
certificate, in accordance with the requirements in Sec.  176.27. This
amendment provides for the conveyance of necessary information to the
vessel operator for creation of the DCM.
Appendix I to Part 173
    PHMSA is also adding a new Appendix I to part 173, containing a
flow chart for use with the calculation method for corrosive
classification. Please see the section-by-section discussion for Sec.
173.137 for further information on Appendix I to Part 173.

Part 174--Carriage by Rail

Section 174.50 Nonconforming or Leaking Packages
    Section 174.50 prescribes regulations for the movement of
nonconforming or leaking packages by rail. Under the HMR, no person may
offer for transportation or transport a bulk hazmat packaging
(typically a tank car) by rail unless that packaging is marked,
represented, maintained, reconditioned, repaired, and retested in
accordance with the HMR (Sec.  171.2(g)). However, Sec.  174.50
authorizes the movement of a non-conforming bulk hazmat package moved
by rail when: (1) The movement is necessary to reduce or eliminate an
immediate threat or harm to human health or the environment; or (2) the
movement is approved by the Federal Railroad Administration's (FRA)
Associate Administrator for Railroad Safety.
    Approvals issued by FRA's Associate Administrator for Railroad
Safety are commonly referred to as One-Time Movement Approvals
(OTMA).\15\ Transport Canada issues similar approvals for the movement
of non-conforming bulk hazmat packages and tank cars, which are
referred to as Temporary Certificates. Historically, for movements of
non-conforming tank cars from Canada to or through the United States,
the offeror would have to obtain both an OTMA from FRA and a Temporary
Certificate from Transport Canada. These applications initiate
administrative processes and safety reviews by both governments that
nearly always result in the same conclusion. Since the safety analysis
used to evaluate Temporary Certificates in Canada is similar to the
safety analysis used to evaluate OTMAs by FRA, the requirement to
obtain two government approvals for a cross border movement provides no
additional safety benefit and is redundant and burdensome. Thus, to
facilitate cross border trade, for movements to or through the United
States from Canada, PHMSA is amending the regulation to recognize
Temporary Certificates issued by Transport Canada. This amendment would
reduce the duplicative requirement to apply for both an OTMA from the
United States and a Temporary Certificate from Canada, should the non-
conforming package need to be transported over the U.S.-Canadian
border.
---------------------------------------------------------------------------

    \15\ On October 7, 2014 FRA issued guidance on One-Time Movement
Approvals titled One-Time Movement Approval Procedures, HMG-127.
---------------------------------------------------------------------------

    On July 12, 2007, Transport Canada published, ``Regulations
Amending the Transportation of Dangerous Goods Regulations
(International Harmonization Update, 2016).'' In this publication,
Transport Canada indicated that recognition of OTMA may be included in
a future amendment. This amendment aims to facilitate international
transportation and at the same time ensures the safety of people,
property, and the environment. Finally, for low-risk movements of non-
conforming tank cars, Transport Canada authorizes the one-time movement
without the need to obtain a temporary certificate (see TP-14877). For
clarification, such movements under the TDG Regulations are already
authorized by Sec.  171.12, provided the movements are compliant with
all applicable requirements in the TDG Regulations and Sec.  171.12.
PHMSA received comments from DGAC and Dow in support of the changes to
Sec.  174.50 noting these amendments work to facilitate cross border
trade.

Part 175--Carriage by Aircraft

Section 175.10 Exceptions for Passengers, Crewmembers, and Air
Operators
    Section 175.10 specifies the conditions under which passengers,
crew members, or an operator may carry hazardous materials aboard an
aircraft. Consistent with revisions to the ICAO Technical Instructions,
in this final rule, PHMSA is making several revisions to this section.
    PHMSA is revising paragraph (a)(2) to account for lighters powered
by lithium batteries (e.g., laser plasma lighters, tesla coil lighters,
flux lighters, arc lighters, and double arc lighters). The assigned
provisions would be consistent with a combination of the existing
requirements applicable to portable electronic devices powered by
lithium batteries and battery powered portable electronic smoking
devices. Specifically, each lithium battery must be of a type which
meets the requirements of each test in the UN Manual of Tests and
Criteria, Part III, Subsection 38.3 and must not exceed the size limits
authorized for portable electronic devices. Recharging of the devices
and/or the batteries on board the aircraft is not permitted consistent
with the requirements for portable electronic smoking devices. In
addition, lithium battery powered lighters without a safety cap or
means of protection against unintentional activation are prohibited in
carry-on baggage, checked baggage, and when carried on one's person.
    PHMSA is revising paragraph (a)(3), to authorize medical devices
containing radioactive material fitted externally as the result of
medical treatment, consistent with the ICAO Technical Instructions. In
addition, the reference to implanted medical devices containing lithium
batteries is removed. For medical devices containing lithium batteries
(including those implanted, externally fitted, or carried by passengers
or crew members) the quantity limits provided in (a)(18)(i) or (ii)
apply, as applicable.
    PHMSA is revising paragraph (a)(14) for consistency with the ICAO
Technical Instructions and other paragraphs in this section. The first
sentence is revised to clarify that the paragraph is applicable to
battery powered heat-producing devices rather

than ``electrically powered'' articles. For lithium battery powered
devices, quantity limits are added in new paragraphs (i) and (ii)
consistent with the existing requirements applicable to portable
electronic devices powered by lithium batteries and battery powered
portable electronic smoking devices. The requirements for spare
batteries are revised to reference the provisions for spare batteries
in paragraph (a)(18).
    PHMSA is revising paragraph (a)(15) by adding a new paragraph (vi)
to separate and clarify the handling requirements applicable to each
``non-spillable'' and ``dry sealed'' battery presently prescribed in
paragraph (v). PHMSA is also adding a new paragraph (vii) to authorize
passengers with restricted mobility to carry a spare non-spillable or
dry sealed battery for their mobility aid. Prior to this rulemaking,
spare lithium batteries were permitted for passengers with lithium
battery-powered mobility aids; this was deemed acceptable for mobility
aids equipped with non-spillable or dry sealed batteries. This action
is consistent with the ICAO Technical Instructions.
    PHMSA is amending provisions for carriage of wheelchairs or other
mobility aids equipped with a lithium ion battery by removing the
requirement that ``collapsible'' mobility aids necessitate removal of
the battery. The intent of the existing requirement was to allow the
removal of the batteries from lightweight collapsible mobility aids
when these do not afford any protection to the batteries. However, the
existing text in both the HMR and ICAO Technical Instructions can be
construed to mean that if the battery was designed to be removable from
the mobility aid, that it must be removed in all circumstances, even
when adequate protection to the batteries is provided. In cases when
the batteries are adequately protected, it is preferable that they
remain installed in the mobility aid; however, there may be situations
when that is not possible or safe to do, and in these cases the
batteries must be removed. Therefore, in this final rule, PHMSA is
amending (a)(17)(v) by removing the word ``collapsible'' and clarifying
that when the wheelchair or mobility aid does not provide adequate
protection to the battery, that the battery must be removed and handled
in accordance with the existing conditions prescribed in (a)(17)(v)(A)
through (E).
    PHMSA is amending the provisions for carriage of portable
electronic devices (PEDs) containing lithium batteries to address
safety concerns requiring passengers to carry PEDs in checked baggage.
Consistent with the ICAO Technical Instructions, Sec.  175.10(a)(18) is
revised to require that when PEDs powered by lithium batteries are in
checked baggage, they must be completely powered off and protected to
prevent unintentional activation or damage. PHMSA received a comment
from Yvonne Keller noting that in an October 18, 2018, final rule
[Docket No. PHMSA-2015-0100 (HM-259) [83 FR 52878], PHMSA amended
paragraph (a)(18)(i) to authorize passengers and crewmembers to carry
on board an aircraft lithium metal battery-powered portable medical
electronic devices and two spare batteries for those devices exceeding
2 grams of lithium content per battery, but not exceeding 8 grams of
lithium content per battery, with the approval of the operator. We
agree that the NPRM did not account for this amendment. Therefore, in
this final rule, we are revising this paragraph consistent with the
earlier published final rule.
    PHMSA is revising the carriage requirements for battery-powered
portable electronic smoking devices in paragraph (a)(19). The 2015-2016
Edition of the ICAO Technical Instructions incorporated provisions
prohibiting passengers and crew from carrying such devices in checked
baggage or recharging them in the cabin, and requiring that any spare
batteries be protected from short circuit. In a working paper (DGP/26-
WP/42) submitted by the United States at the ICAO DGP/26 meeting, it
was reported that even after the prohibition, 10 incidents involving
these devices were documented between May 2015 and May 2017. As
described in the working paper, seven of the incidents occurred inside
a passenger aircraft and three occurred inside an airport. These
incidents typically involved the electronic smoking device while it was
being transported in carry-on baggage, with the suspected cause of the
majority of these incidents being the accidental activation of the
device.
    In this final rule, PHMSA is aligning the HMR with the ICAO
Technical Instructions by requiring passengers or crew to take
effective measures for preventing accidental activation of the heating
element of the device when transporting such devices in carry-on
baggage on board passenger aircraft. Examples of effective measures
include, but are not limited to: Removing the battery from the
electronic smoking device; separating the battery from the heating
coil; placing the electronic smoking device into a protective case;
using a protective cover, safety latch, or locking device on the
electronic smoking device's heating coil activation button; and
electronics or technology in the device designed to prevent accidental
activation, such as those requiring the electronic smoking device to be
powered on before the heating coil button can be activated.
    PHMSA is adding a new paragraph (a)(26) that amends the passenger
provisions for carriage of baggage equipped with lithium batteries
(e.g., smart baggage) intended to power features designed to make
travel easier, such as location tracking, PED battery charging, short
range wireless connections, digital weighing, or motors. To address
concerns that passengers would check baggage containing lithium
batteries (e.g., power banks) despite existing requirements that
articles whose primary purpose is to provide power to another device be
carried as spare batteries in the cabin as carry-on baggage, the ICAO
Technical Instructions were amended to require that passengers remove
lithium batteries from baggage they intend to check, in accordance with
the provisions for spare batteries. Specifically, baggage equipped with
a lithium battery or batteries is required to be carried as carry-on
baggage, unless the battery or batteries are removed from the baggage.
Once the battery or batteries are removed from baggage intended to be
checked, the battery or batteries must be carried in the cabin in
accordance with the provisions for spare batteries prescribed in
paragraph (a)(18). This restriction in checked baggage does not apply
to baggage containing lithium metal batteries with a lithium content
not exceeding 0.3 grams, or lithium ion batteries with a Watt-hour
rating not exceeding 2.7 Wh.
    PHMSA received a comment from Alaska Airlines requesting that
additional text be added to clarify that batteries must be removable
without the use of any tool for baggage to be carried on, in the event
the bag must subsequently be placed in the cargo compartment. However,
in the NPRM, we proposed to align with the text of the ICAO Technical
Instructions, which does not include this requirement. The requested
language would, therefore, result in unalignment with the ICAO
Technical Instructions and additional changes in existing practices in
manufacturing and design of these types of bags.
Section 175.33 Shipping Paper and Information to the Pilot-in-Command
    Section 175.33 establishes requirements for shipping papers and for
the notification of the pilot-in-command when hazardous materials are
transported by aircraft. Consistent with

revisions to the ICAO Technical Instructions, in paragraph (a)(13)(i),
PHMSA is including a requirement to indicate the airport at which the
lithium batteries will be unloaded in the information to the pilot-in-
command when a summary is used for lithium batteries. Including the
airport at which the batteries will be unloaded is consistent with the
existing authorization in paragraph (a)(12) to use a summary instead of
the default information to the pilot in command for ``UN 1845, Carbon
dioxide, solid (dry ice).'' Yevon Keller commented noting that the HM-
215O NPRM did not take into account recent changes to this section made
in an October 18, 2018, final rule [Docket No. PHMSA-2015-0100 (HM-
259); 83 FR 52878]. The NPRM did not fully account for this amendment
and, in this final rule, we are revising paragraphs (a)(12) and (13) to
make them editorially consistent with the earlier published final rule.
    Additionally, in a recent interim final rule (IFR) published March
6, 2019, [HM-224I; 84 FR 8006], PHMSA made revisions to some lithium
battery requirements in the HMR.\16\ As part of the IFR, we made
changes to Sec.  173.185(c) including redesignating paragraph
(c)(4)(vi) as paragraph (c)(5). However, in the HM-224I IFR, we did not
make a conforming amendment to Sec.  175.33, specifically Sec.
175.33(a)(13)(iii), which continued to incorrectly reference Sec.
173.185(c)(4)(vi). As such, the reference in Sec.  175.33(a)(13)(iii)
should be to Sec.  173.185(c)(5), as this will correctly indicate that
UN3480, UN3481, UN3090, and UN3091 materials prepared in accordance
with Sec.  173.185(c)(5) are still required to appear on the
information to the pilot-in-command. This HM-215O final rule makes that
necessary editorial correction.
---------------------------------------------------------------------------

    \16\ https://www.govinfo.gov/content/pkg/FR-2019-03-06/pdf/2019-03812.pdf.
---------------------------------------------------------------------------

Section 175.78 Stowage Compatibility of Cargo
    Section 175.78 prescribes the stowage compatibility of hazardous
materials offered for transportation by aircraft. Consistent with
international standards, in a March 30, 2017, final rule [HM-215N; 82
FR 15796], PHMSA added new Class 3 HMT entry ``UN 3528,'' applicable to
the fuel contained in engines and machinery powered by Class 3
flammable liquids. In accordance with the segregation requirements
prescribed in this section, engines and machinery classified under the
new UN 3528 entry in Class 3 are required to be segregated from
dangerous goods with a primary or subsidiary hazard of Division 5.1.
Prior to the addition of the UN 3528 HMT entry, such engines and
machinery were classed in Class 9 and, therefore, not required to be
segregated from Division 5.1 materials. The packing requirements by air
for UN 3528 require engines to be drained and the tank caps fitted
securely. These precautions ensure that there is only a negligible
amount of residual fuel remaining. There is no indication that, as
prepared for transport, UN 3528 poses any more hazard now that would
require these items to be segregated than when these items were
previously identified as a Class 9. Therefore, in this final rule,
PHMSA is adding an exception to the segregation requirement by
including a ``Note 3'' to the paragraph (b) Segregation Table and
adding a new paragraph (c)(8) stating that materials consigned under UN
3528 need not be segregated from packages containing hazardous
materials in Division 5.1.
    Consistent with the ICAO Technical Instructions, PHMSA is requiring
that packages and overpacks containing lithium cells and batteries that
bear the Class 9 label must not be stowed on an aircraft next to, in
contact with, or in a position that would allow interaction with,
packages or overpacks containing other hazardous materials in Class 1
(other than Division 1.4S), Division 2.1, Class 3, Division 4.1 and
Division 5.1. Specifically, the current paragraph (b) is reformatted
into two paragraphs. A new paragraph (b)(2) is added to prescribe the
segregation requirements applicable to lithium cells and batteries. The
existing Segregation Table is revised by adding the necessary columns
and rows representing hazard classes not presently in the Table. These
changes to the Table indicate that hazardous materials in the classes
described above must be segregated from packages and overpacks
containing lithium cells or batteries prepared in accordance with Sec.
173.185(b)(3) and (c)(4)(vi). PHMSA is taking this action to promote
consistency with the ICAO Technical Instructions and in response to a
NTSB recommendation (A-16-001). The recommendation stemmed from NTSB's
investigation of the July 28, 2011, in-flight fire and crash of Asiana
Airlines Flight 991, which resulted in the loss of the aircraft and
crew. The investigation report cited as a contributing factor the
flammable materials and lithium ion batteries that were loaded together
either in the same or adjacent pallets.
    PHMSA received two comments from COSTHA and Alaska Airlines in
support of the segregation requirements. Alaska Airlines supports the
changes to the segregation requirements and COSTHA supports the new
Note 3 in Sec.  175.78 exempting ``UN3528'' from Division 5.1
segregation requirements. Alaska Airlines asked if it was an oversight
that PHMSA did not propose to amend Sec.  175.310(c)(1)(ii) to include
similar prohibitions on shipping lithium metal and lithium ion
batteries with flammable liquids, which authorizes transportation of
flammable liquid fuel by passenger and cargo aircraft when other means
of transportation are impracticable. Shipments made in accordance with
Sec.  175.310 may vary from the packaging references and quantity
limits listed in Columns 7, 8, and 9 of the HMT. PHMSA did not propose
or intend to propose amendments to Sec.  175.310 in the NPRM. As no
amendments were proposed to this section or these provisions, we are
not amending the requirements in this section in this final rule. The
FAA and PHMSA have agreed to look at the issue further and any
potential future rulemaking action would afford stakeholders the
opportunity to review and provide comments.

Part 176--Carriage by Vessel

Section 176.30 Dangerous Cargo Manifest
    Section 176.30 prescribes requirements for DCMs, lists, or stowage
plans required to be carried aboard vessels transporting hazardous
materials. For consistency with the IMDG Code in this final rule, PHMSA
is adding a new paragraph (a)(9) to require that DCMs include
information on shipments of excepted packages containing Class 7
materials. For shipments of excepted packages containing Class 7
material only the UN identification number, the name and address of the
consignor and the consignee, and the stowage location of the hazardous
material on board the vessel is required to be entered on the DCM,
list, or stowage plan carried aboard the vessel.
Section 176.84 Other Requirements for Stowage, Cargo Handling, and
Segregation for Cargo Vessels and Passenger Vessels
    Section 176.84 prescribes the meanings and requirements for
numbered or alphanumeric stowage provisions for vessel shipments listed
in column (10B) of the Sec.  172.101 HMT. The provisions in Sec.
176.84 are separated into general stowage provisions, which are defined
in the ``table of provisions'' in paragraph (b), and the stowage
provisions applicable to vessel shipments of Class 1 explosives, which

are defined in the table in paragraph (c)(2). In a previous final rule
[Docket No. PHMSA-2015-0273 (HM-215N); 82 FR 15796], a subsidiary
hazard of 6.1 was added to the UN 2977 and UN 2978 uranium hexafluoride
entries, and the primary hazard for UN 3507, Uranium hexafluoride,
radioactive material, excepted package was changed from 8 to 6.1.
Consequential amendments to the stowage and segregation requirements
codes for these materials were not addressed at the time of these
changes in the IMDG Code or the HMR. In this final rule, we are adding
new stowage provisions that clarify what segregation requirements apply
to shipments of uranium hexafluoride.
    PHMSA is adding a new stowage provision 151 and assigning it to the
UN 2977 and UN 2978 uranium hexafluoride entries. This new stowage
provision requires segregation for Class 7 materials to apply to
uranium hexafluoride shipped under these two UN numbers.
    Additionally, consistent with Amendment 39-18 of the IMDG Code,
PHMSA is adding a new stowage provision 152 and assigning it to UN
3507, Uranium hexafluoride, radioactive material, excepted package.
This new stowage provision requires segregation for Class 8, but
excepts segregation in relation to Class 7 materials. This exception to
the general segregation requirements between Class 8 and Class 7
materials allows shipments of excepted packages of uranium hexafluoride
to be stowed in close proximity to shipments of fully regulated uranium
hexafluoride.
    Based on changes to the IMDG Code to address the appropriate
segregation requirements for shipments of uranium hexafluoride, PHMSA
is adding a new stowage provision 153 and assigning it to the UN 2977
and UN 2978 uranium hexafluoride HMT entries. This new stowage
provision requires these materials to be stowed ``separated
longitudinally by an intervening complete compartment or hold from''
Divisions 1.1, 1.2, and 1.5.
    Based on changes to the IMDG Code to provide additional flexibility
in the stowage requirements for jet perforating guns, PHMSA is adding a
new stowage provision 154 and assigning it to the NA 0124, NA 0494, UN
0494, and UN 0124 jet perforating gun HMT entries. This new stowage
provision indicates that, notwithstanding the stowage category assigned
to the entries in the HMT, jet perforating guns may be stowed in
accordance with the provisions of packing instruction US 1 in Sec.
173.62. These jet perforating guns are currently assigned to stowage
categories ``02'' and ``04.'' Both stowage categories require stowage
in closed cargo transport units. The inclusion of new stowage provision
154 clarifies that regardless of the stowage category assigned, jet
perforating guns offered in accordance with US 1 in Sec.  173.62 are
not required to be offered for transport or transported in closed cargo
transport units.

Part 178--Specifications for Packagings

Section 178.71 Specifications for UN Pressure Receptacles
    Section 178.71 prescribes specifications for UN pressure
receptacles. Consistent with the UN Model Regulations, PHMSA is
amending paragraphs (d)(2), (f), (i), (j), and (q)(12), to reflect the
adoption of the latest ISO standards for the design, construction, and
testing of gas cylinders and their associated service equipment. In
paragraph (d)(2), PHMSA is adding a phase out date for ISO 13340:2001,
which is authorized for valves manufactured until December 31, 2020,
and incorporating by reference ISO 14246:2014 (E) ``Gas cylinders--
Cylinder valves--Manufacturing tests and examination,'' which addresses
initial inspection and testing requirements for valves. ISO 13340:2001
is being phased out because the applicable valve requirements have been
incorporated into ISO 11118:2015. In paragraph (f), PHMSA is amending
the title of the paragraph to include pressure drums and adding ISO
21172-1:2015(E), ``Gas cylinders--Welded steel pressure drums up to 3
000 litres capacity for the transport of gases--Design and
construction--Part 1: Capacities up to 1 000 litres'' in new paragraph
(f)(4). A note was added to the UN Model Regulations that authorizes
welded steel gas pressure drums with dished ends convex to pressure to
be used for the transport of corrosive substances provided all
applicable additional requirements are met, irrespective of section
<IP_ADDRESS> of this standard which prohibits such use.\17\ Therefore, PHMSA
is authorizing the same deviation from the ISO standard in paragraph
(f).
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    \17\ https://www.unece.org/fileadmin/DAM/trans/doc/2015/dgac10c3/UN-SCETDG-48-INF49_e_.pdf.
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    In addition, in paragraph (i), PHMSA is adding a phase out date for
ISO 11118:1999 ``Gas Cylinders for Non-refillable Metallic Gas
Cylinders,'' which is authorized until December 31, 2020, and replacing
it with the new standard, ISO 11118:2015. In paragraph (j), PHMSA is
adding a phase out date for ISO 111120:1999, ``Gas Cylinders for
Refillable Seamless Steel Tubes,'' which is authorized until December
31, 2022, and replacing it with ISO 111120:2015. In paragraph (q)(12),
PHMSA is incorporating ISO/TR 11364, ``Gas cylinders--Compilation of
national and international valve stem/gas cylinder neck threads and
their identification and marking system'' to specify a harmonized
identification code and marking system for both cylinders and valves.
Section 178.75
    Section 178.75 prescribes specifications for multi-element gas
containers (MEGCs). In paragraph (d)(3)(v), PHMSA is adding a phase out
date for ISO 11120:1999, which is authorized for construction and
testing of receptacles of MEGCs until December 31, 2022, and
authorizing the new, updated standard ISO 11120:2015. Changes to the
new edition of this standard include the addition of an annex outlining
typical chemistry groupings for seamless steel tubes, the addition of
nickel chromium molybdenum steel, the modification of ultrasonic
examination provisions, and revisions to the provisions for the design
of tubes for embrittling gases.
Section 178.601 General Requirements
    Section 178.601 prescribes the general requirements for test
procedures for non-bulk packagings and packages. A test report must be
prepared and made available to a user of a packaging or a DOT
representative upon request. In this final rule, PHMSA is requiring in
paragraph (l)(2)(viii) that the test report for plastic packagings that
are subject to the hydraulic pressure test include the temperature of
the water used for the test. Tests with different water temperatures
applied to one design type can produce different test results (pass or
fail). This action is consistent with amendments to the UN Model
Regulations. PHMSA received a comment from RIPA supporting the
requirement.
Section 178.801 General Requirements
    Section 178.801 prescribes the general requirements for test
procedures of an IBC containing a hazardous material. A test report for
an IBC must be prepared and made available to a user of a packaging or
a DOT representative upon request. In this final rule, PHMSA is
requiring in paragraph (l)(2)(viii) that the test report for rigid
plastics and composite IBCs that are subject to the hydraulic pressure
test must include the temperature of the water used for the test. Tests
with different water temperatures applied to one design type can
produce different test results (pass

or fail). The inclusion of the temperature of the water used for the
test will allow for tests that more accurately simulate the original
design type testing when such additional testing is performed. PHMSA
received a comment from RIPA supporting the requirement.
Section 178.810 Drop Test
    Section 178.810 prescribes the requirements for an IBC drop test.
In the NPRM, we proposed to amend paragraph (c)(1), to clarify that the
same IBC or a different IBC of the same design type may be utilized for
the required drop tests. PHMSA received a comment from Frits Wybenga
noting that IBCs exceeding 450 L (0.45 cubic meters) capacity only
require one drop test and that our proposed language could confuse
users. PHMSA agrees and has determined that (c)(2), addressing IBC
design types with a capacity of 0.45 cubic meters or less is the most
appropriate paragraph for this provision. As such, we are amending
paragraph (c)(2).

Part 180--Continuing Qualification and Maintenance of Packagings

Section 180.207 Requirements for Requalification of UN Pressure
Receptacles
    Section 180.207 prescribes requirements for requalification of UN
pressure receptacles. In March 2017, PHMSA published a final rule under
Docket HM-215N [82 FR 15796 (March 30, 2017)]. In this rule, PHMSA
amended the HMR to expand recognition of cylinders and pressure
receptacles, cargo tank repair facilities, and certificates of
equivalency in accordance with the Transport Canada TDG Regulations.
The goal of these amendments is to promote flexibility and permit the
use of advanced technology for the requalification and use of pressure
receptacles, to provide for a broader selection of authorized pressure
receptacles, to reduce the need for special permits, and to facilitate
cross-border transportation of these cylinders. Section Sec.
171.12(a)(4) permits the transportation of a cylinder authorized by
Transport Canada TDG Regulations to, from, or within the United States.
In HM-215N, PHMSA amended (a)(4)(ii) to authorize the use of Canadian
manufactured cylinders. Specifically, PHMSA authorized the
transportation of CTC, CRC, BTC, and TC cylinders that have a
corresponding DOT specification cylinder prescribed in the HMR. HM-215N
did not remove or amend existing requirements for DOT specification
cylinders; rather, PHMSA provided that a shipper may use either a DOT
specification cylinder or a TC cylinder, as appropriate. In this final
rule, PHMSA is clarifying the amendments in HM-215N and allowing for
the requalification of ``CAN'' marked UN cylinders in the United
States.
    In the NPRM, PHMSA proposed that cylinders marked with the letters
``CAN'' for Canada as a country of manufacture or a country of approval
may be requalified in the United States, provided the requirements in
Sec. Sec.  178.69, 178.70, and 178.71, as applicable, are met. PHMSA
received a comment from Transport Canada stating that it disagrees that
UN cylinders marked with the letters ``CAN'' must comply with the U.S.
manufacturing and approval requirements in Sec. Sec.  178.69, 178.70,
and 178.71, as the cylinders are manufactured to comply with the TDG
Regulations. Transport Canada recommended that consistent with the
reciprocity provisions for TC cylinders added in the HM-215N final
rule, UN cylinders marked with the letters ``CAN'' be requalified and
marked by a facility registered by Transport Canada in accordance with
the Transport Canada TDG Regulations. PHMSA agrees with the commenter
that allowing this method of requalification is consistent with
previous amendments concerning requalification of Canadian pressure
vessels using TDG Regulations, promotes U.S. and Canadian regulatory
reciprocity and facilitates international trade. In this final rule,
PHMSA is revising paragraph (a)(2) per the recommendation from
Transport Canada.
    Consistent with changes to the UN Model Regulations, PHMSA is
revising paragraph (d)(1) to incorporate ISO 16148:2016, which
addresses the requalification of seamless steel cylinders and tubes.
This addition allows the internal inspection and hydraulic pressure
test for seamless steel ISO cylinders and tubes to be replaced by non-
destructive testing methods identified in ISO 16148:2016. Non-
destructive test methods in this ISO standard have been updated to
provide a method for evaluating the significance of acoustic emission
examination identifed emission sources. This standard specifies the
ultrasonic examination method as a follow-up procedure to evaluate the
significance of sources identified through acoustic emissions
examinations. Additionally, in paragraph (d)(4), PHMSA is adding a
phase out date for ISO 11623:2002, which is authorized for inspection
and testing of composite UN cylinders until December 31, 2020, and
authorizing the new standard, ISO 11623:2015. Finally, PHMSA is adding
new paragraph (d)(6) to incorporate inspection and maintenance
requirements for cylinder valves as found in ISO 22434:2006
``Transportable gas cylinders--Inspection and maintenance of cylinder
valves.'' Changes to the revised standard include: Up-to-date
terminology, particularly for the various types of composite cylinders;
up-to-date references to additional documents for steel and aluminum-
alloy liner materials; and an update of some photographs to provide
sharper examples of damage.
Section 180.217 Requalification Requirements for MEGCs
    Section 180.217 contains requalification requirements for MEGCs.
PHMSA received a comment from Transport Canada that the HM-215N final
rule did not extend reciprocity to the requalification of MEGCs
performed by facilities registered with Transport Canada. The commenter
noted that having mutual recognition for cylinder requalification was
one of the main goals of the U.S.-Canada Regulatory Cooperation
Council. PHMSA agrees that the ability to requalify MEGC's is
consistent with previous amendments concerning pressure vessels and
promotes U.S. and Canadian regulatory reciprocity and facilitates
international trade. In this final rule PHMSA is revising paragraph (a)
by authorizing MEGCs to be requalified by a facility registered by
Transport Canada in accordance with the Transport Canada TDG
Regulations.

VI. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Final Rule

    This final rule amends the HMR to maintain alignment with
international standards by incorporating various amendments, including
changes to proper shipping names, hazard classes, packing groups,
special provisions, packaging authorizations, air transport quantity
limitations, and vessel stowage requirements. This final rule is
published under the statutory authority of Federal hazardous materials
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.).
Section 5103(b) of Federal hazmat law authorizes the Secretary of
Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. Additionally, 49 U.S.C. 5120(b) authorizes the
Secretary to ensure that, to the extent practicable, regulations
governing the transportation of hazardous materials in commerce are

consistent with standards adopted by international authorities. The
Secretary's authority is delegated to PHMSA at 49 CFR 1.97.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning
and Review, 58 FR 51735 and, therefore, was not formally reviewed by
the Office of Management and Budget. This final rule is not considered
a significant rule under the Department of Transportation's Policies
and Procedures for Rulemakings (DOT Order 2100.6; Dec. 20, 2018).
    E.O. 12866 requires agencies to design regulations ``in the most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' In this final
rule, PHMSA accomplishes the directives of E.O. 12866 by harmonizing
the HMR with widely used consensus international standards to address
specific safety concerns, reduce regulatory burdens, and facilitate
international trade. Such alignment promotes international trade
through standardization, facilitates domestic transportation and
reduces regulatory burden by using a single set of guiding principles
worldwide.
    Overall, the issues discussed in this final rule promote the
continued safe transportation of hazardous materials while producing
net cost savings. Cost savings are derived from generalized
harmonization effects (such as avoided costs of compliance) and the
specific provisions related to corrosivity classification that adds
alternative packing group assignment methods to classify corrosive
mixtures without conducting physical testing. Details on the estimated
cost savings and benefits of this final rule can be found in the rule's
Regulatory Impact Analysis (RIA), which is available in the public
docket.
    Based on the discussions of benefits and costs provided above,
PHMSA estimates discounted net cost savings at a 3 percent discount
rate of approximately $93,000-$2.2 million per year and at a 7 percent
discount rate of approximately $55,000-$2.1 million per year. Please
see the complete RIA for a more detailed analysis of the costs and
benefits of this final rule.

C. Executive Order 13771

    This final rule is considered an E.O. 13771 deregulatory action.
Details on the estimated cost savings of this final rule are discussed
in the rule's RIA, which has been uploaded to the docket.

D. Executive Order 13132

    This final rule was analyzed in accordance with the principles and
criteria contained in E.O. 13132, Federalism, 64 FR 43255. E.O. 13132
requires agencies to assure meaningful and timely input by State and
local officials in the development of regulatory policies that may have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' The
regulatory changes in this final rule may preempt State, local, and
Indian tribe requirements but do not have substantial direct effects on
the States, the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law contains an
express preemption provision, 49 U.S.C. 5125(b), that preempts State,
local, and Indian tribe requirements on certain covered subjects,
unless the non-Federal requirements are ``substantively the same'' as
the Federal requirements:
    (1) The designation, description, and classification of hazardous
material;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
    (3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, inspection, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous material in commerce.
    This final rule addresses covered subject items (1), (2), (3), and
(5) above. Therefore, this final rule preempts State, local, or tribal
requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' as the Federal
requirements. PHMSA received no comments on the NPRM regarding the
effect of the adoption of the specific proposals on State, local or
tribal governments.

E. Executive Order 13175

    This final rule was analyzed in accordance with the principles and
criteria contained in E.O. 13175, Consultation and Coordination with
Indian Tribal Governments, 65 FR 67249. E.O. 13175 requires agencies to
assure meaningful and timely input from Indian tribal government
representatives in the development of rules that significantly or
uniquely affect Tribal communities by imposing ``substantial direct
compliance costs'' or ``substantial direct effects'' on such
communities or the relationship and distribution of power between the
Federal government and Indian tribes. This final rule is likely to
affect offerors and carriers of hazardous materials, some of whom are
small entities, such as chemical manufacturers, users and suppliers,
packaging manufacturers, distributors, and training companies. It does
not impose substantial direct compliance costs and does not have
substantial direct effects on Native American tribal governments.
Therefore, the funding and consultation requirements of E.O. 13175 do
not apply. Further, PHMSA did not receive comments on the tribal
implications of the rulemaking.

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

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess its impact on small entities,
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking, 68 FR 7990,'' requires agencies to establish procedures and
policies to promote compliance with the Regulatory Flexibility Act and
to ``thoroughly review draft rules to assess and take appropriate
account of the potential impact'' of the rules on small businesses,
governmental jurisdictions and small organizations. This rule was
developed in accordance with this E.O. and DOT's procedures and
policies (DOT Order 2100.6) to promote compliance with the Regulatory
Flexibility Act and to ensure that the potential impacts of a
regulatory action on small entities were properly considered.
    Section 603(b) of the Regulatory Flexibility Act requires an
analysis of the possible impact of the rule on small entities,
including the need for the rule, the description of the action, the
identification of potentially affected

small entities, the reporting and recordkeeping requirements, the
related Federal rules and regulations, and the alternative proposals
considered.
    PHMSA expects the amendments in this rule to result in overall net
cost savings and ease the regulatory compliance burden for shippers
engaged in domestic and international commerce, including trans-border
shipments within North America. Additionally, the changes effected by
this rule will relieve U.S. companies, including small entities
competing in foreign markets, from the burden of complying with a dual
system of regulations. Therefore, PHMSA expects that these amendments
will not have a significant economic impact on a substantial number of
small entities. However, PHMSA solicited comments in the NPRM on the
anticipated economic impacts to small entities. Comments from Amazon
and NRF to the NPRM indicated that the requirement to prepare a test
summary and the subsequent distribution to others in the supply chain
for all lithium cells and batteries manufactured would have a
disproportionate impact on small businesses. While the commenters
provided no quantitative context, PHMSA estimated the burden on
manufacturers and subsequent distributors for the lithium cell and
battery test summary requirement in the SBA below to address this
issue. Such analysis for this final rule is as follows, supplemented by
the analysis contained in the RIA, which can be found in the docket for
this rulemaking:
1. Need for the Final Rule
    This final rule adopts the conditional use of international
standards, and where appropriate, harmonizes domestic transportation
requirements for hazardous materials with those found in the applicable
international standards. This harmonization promotes compliance cost
savings, process efficiencies/time savings, reduced potential property,
health and environmental damages, and increased trade flows/reduction
in barriers to trade.
    The benefits from the adoption of the amendments include enhanced
transportation safety resulting from the consistency of domestic and
international hazard communication and continued access to foreign
markets by U.S. manufacturers and other businesses that are
transporters of hazardous materials.
2. Description of the Action
    This final rule facilitates the transportation of hazardous
materials in international commerce by providing consistency with
international standards. The rule will align the HMR with international
regulations and standards by incorporating various amendments,
including changes to proper shipping names, hazard classes, packing
groups, special provisions, packaging authorizations, air transport
quantity limitations, and vessel stowage requirements.
3. Identification of Potentially Affected Small Entities
    The term ``small entities,'' as described in 5 U.S.C. 601,
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields
and governmental jurisdictions with populations of less than 50,000.
The amendments considered here are likely to affect offerors and
carriers of hazardous materials, some of whom are small entities, such
as chemical manufacturers, users and suppliers, packaging
manufacturers, distributors, and training companies.
    As noted above, PHMSA expects that these amendments will not have a
significant economic impact on a substantial number of small entities.
However, to address comments to the NPRM indicating that the
requirement to create a test summary for lithium cells and batteries
and for subsequent distributors to make this information available to
others in the supply chain would have a disproportionate impact on
small businesses, PHMSA estimated the burden on manufacturers and
subsequent distributors for the lithium cells and batteries test
summary requirements. PHMSA identified approximately 3,700 small
entities that may be impacted by the lithium cell and battery test
summary requirements. PHMSA examined the entities in NAICS codes for
battery retailers, wholesalers, and merchants and identified the
percentage of entities in each NAICS industry that are involved in
distributing batteries based on the sub-NAICS product series
information provided in the 2012 Economic Census by Industry. PHMSA
assumed that product manufacturers would include 27.9 percent of
Electrical Apparatus and Equipment, Wiring Supplies, and Related
Equipment Merchant Wholesalers (NAICS 423610), 50 percent of Power-
Driven Handtool Manufacturing (NAICS 333991) and 100 percent of
Electronic Computer Manufacturing (NAICS 334111) and Radio and
Television Broadcasting and Wireless Communications Equipment
Manufacturing (NAICS 334220). Finally, PHMSA determined that retailers
would need to make the test summary document available to customers.
PHMSA assessed that retailers would predominantly fall within the All
Other Miscellaneous Store Retailers (NAICS 453998) and that 2.2 percent
of all firms in this sector may be affected. Then PHMSA multiplied this
percent by the more recent U.S. Census Bureau Statistics of U.S.
Businesses (SUSB) 2016 \18\ to estimate the total number of potentially
impacted respondents. Please see the RIA submitted to the docket for
this rulemaking for a more detailed analysis of these small entities.
As a result of our analysis on the impacts test summary document
requirements will have on small buisnesses, PHMSA believes that
although some small businesses will be directly impacted, particular
firms and their associated industries are unlikely to experience
significant (i.e., greater than 1 percent) impacts.
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    \18\ SUSB 2016. Annual Data Tables by Establishment Industry,
Data by Enterprise Employment Size, U.S. 6-digit NAICS. https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html.

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 Reporting and recordkeeping requirements

    Reporting and recordkeeping requirements are discussed in detail in
the RIA submitted to the docket for this rulemaking and the ``Paperwork
Reduction Act'' section of this rulemaking. These requirements will
apply to all regulated entities, including small entities.
4. Related Federal Rules and Regulations
    PHMSA is unaware of any Federal rules and regulations that are
substantially similar to the requirements in this final rule.
5. Alternative Proposals for Small Business
    The Regulatory Flexibility Act directs agencies to establish
exceptions and differing compliance standards for small businesses,
where it is possible to do so and still meet the objectives of
applicable regulatory statutes. PHMSA does not believe there are
alternative compliance standards for small businesses that still meet
the objectives of these regulatory statutes.
    Excepting small entities from the test summary requirements would
not fully harmonize the HMR with the UN Model Regulations, IMDG Code,
ICAO Technical Instructions, IATA Dangerous Goods Regulations and other
related national and international dangerous goods regulations that
require

manufacturers and distributors of lithium cells and batteries and
equipment powered by cells and batteries to make available a ``test
summary'' as specified in the UN Manual of Tests and Criteria, Sixth
Revised Edition, Amendment 1, Part III, sub-section 38.3, paragraph
38.3.5. Fully harmonizing the test summary requirements allows
traceability and accountability of those involved in the lithium cells
and batteries transport chain, including small entities, thereby
ensuring that lithium cell and battery designs offered for transport
contain specific information on the required UN tests. In addition, it
allows those in the distribution chain, including small entities, to
more easily identify non-counterfeit products by providing confirmation
to users that the battery is from a legitimate and compliant source and
that they are receiving, and potentially reoffering for transportation,
a battery that is of a tested and approved type. PHMSA believes this
may generate safety benefits if counterfeit batteries are more likely
to rupture, catch fire or otherwise increase the risk of a dangerous
incident.
6. Conclusion
    PHMSA conducted a Small Business Analysis (SBA) for this final rule
(see RIA in the docket for this rulemaking). Based on this analysis,
PHMSA believes that some small businesses will be directly impacted by
the lithium cells and batteries test summary requirement; however,
PHMSA found particular firms and their associated industries are
unlikely to experience significant impacts. In particular, PHMSA
demonstrated that the average annual cost of the test summary document
is less than one percent of the average annual revenue for each NAICS
revenue category for which data was available. Please see the RIA for a
more detailed analysis.
    Comments from Amazon and NRF to the NPRM indicated that the
requirement that subsequent distributors produce a test summary would
have disproportionate impact on small businesses. While the commenters